399 S.W.2d 118 (Mo. 1966), 51315, State v. Keeble

Docket Nº:51315.
Citation:399 S.W.2d 118
Party Name:STATE of Missouri, Respondent, v. Josephus KEEBLE, Appellant.
Case Date:February 14, 1966
Court:Supreme Court of Missouri
 
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Page 118

399 S.W.2d 118 (Mo. 1966)

STATE of Missouri, Respondent,

v.

Josephus KEEBLE, Appellant.

No. 51315.

Supreme Court of Missouri.

February 14, 1966

Page 119

Norman H. Anderson, Atty. Gen., John Denman, Asst. Atty. Gen., Jefferson City, for respondent.

Stanley R. Schuchat, St. Louis, for appellant.

EAGER, Judge.

This appeal is one from an order overruling a motion to vacate a judgment and sentence entered in June, 1961. No evidence was heard. The movant, whom we

Page 120

shall call the defendant, was charged by information with first degree murder; he was thereafter found guilty by a jury of second degree murder and was sentenced to serve a term of 25 years. No appeal was taken from that conviction, hence we have no trial transcript or record. The State has filed a motion asking the court to supplement the transcript by bringing here under Rule 82.12(c) a supposed waiver of preliminary hearing and certain minutes showing the entries of appearance by counsel. Defendant has countered with a motion to bring up much of the trial evidence. Both motions, having been taken with the case, are now overruled. Except in unusual circumstances, we consider these matters upon the record made upon the motion in the trial court. In all those cases where appeals have been prosecuted we have the full trial record in our transcript, of which we take judicial notice.

The present motion was filed on December 21, 1964. On December 24, 1964, the trial court having 'duly considered' the motion, overruled it. Defendant's original attempt to appeal from that order was late, but this court granted him leave to appeal out of time by its special order under date of February 8, 1965. Thereafter the trial court granted defendant leave to appeal as a poor person.

The essential allegations of defendant's motion are: (1) that he was denied the right to a preliminary hearing; (2) that the names of certain witnesses used by the State were not endorsed on the information as required by law; (3) that he was held for over 20 hours without bail, without the use of a telephone, and without having the services of counsel; and (4) that he did not have effective assistance of counsel. Upon these allegations he asserts that he was denied due process.

We need not belabor the point that the trial court may deny such a motion without hearing evidence when it is satisfied from 'the files and records of the case' that the defendant is entitled to no relief. Rule 27.26; State v. King, Mo., 380 S.W.2d 370; State v. Statler, Mo., 383 S.W.2d 534; State v. Small, Mo., 386 S.W.2d 379. In the present case the trial court filed a memorandum opinion in which it considered various features of the trial and after-trial proceedings, referring not only to the files and records but to its notes. It would have been preferable for the court to include within its order of record such finding as it made from the files and records, but we have determined that we may and should consider the court's findings from the actual files and records, as included in its opinion. We shall not consider its references to its own notes or to the evidence. In so doing we consider, in part, the fact that we have held that such motions as this (like habeas corpus) are in the nature of civil proceedings rather than criminal, State v. Warren, Mo., 344 S.W.2d 88; State v. Smith, Mo., 324 S.W.2d 707; State v. King, Mo., 380 S.W.2d 370. Under Civil Rule 73.01 it would seem permissible for the court to include its findings in an opinion, even without request. We are moved here primarily by the fact that the court has actually made findings from the files and records and that, whatever the...

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