State v. Ashe
| Decision Date | 13 June 1966 |
| Docket Number | No. 1,No. 51798,51798,1 |
| Parties | STATE of Missouri, Respondent, v. Bob Fred ASHE, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Donald R. Wilson, Asst. Atty. Gen., Jefferson City, for respondent.
Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.
HIGGINS, Commissioner.
On June 22, 1960, appellant was convicted by a jury of robbery in the first degree, and under Section 556.280, V.A.M.S., was sentenced by the court to 35 years' imprisonment, which judgment was affirmed. State v. Ashe, Mo., 350 S.W.2d 768. He has since moved under Criminal Rule 27.26, V.A.M.R., to vacate that judgment and sentence and has appealed from the order denying his motion without a hearing.
Statements of facts in more detail may be found in State v. Ashe, supra, and State v. Johnson, Mo., 347 S.W.2d 220, but for purposes of this proceeding a brief statement will suffice. In the early morning of January 10, 1960, a poker game was in progress in a home in Lees Summit, Jackson County, Missouri. A substantial sum of money was on the table when four men armed with a shotgun and pistols entered the room and took the money and money, rings, watches, and other valuables from the six players. Shortly afterwards appellant, Eric Larson, Thomas Brown, and John Edward Johnson were arrested and charged with robbery and with stealing an automobile. A preliminary hearing was held on January 28, 1960, and all four men were ordered held for trial in the circuit court. Thereafter seven informations were filed involving appellant among which were C--29766 charging robbery of one Knight and C--29768 charging robbery of one Roberts. On May 2, 1960, appellant was acquitted of charge C--29766, and on June 20, 1960, he was brought to trial on charge C--29768, at which time he filed a Motion to Dismiss Autrefois Acquit based on the acquittal of May 2, 1960. The motion was overruled and trial resulted in the verdict and judgment previously described. The only point on the original appeal was that the court erred in not sustaining the motion to dismiss.
Appellant now alleges that 'the court erred in failing to sustain * * * (his) motion to vacate, the appellant having been placed in former jeopardy and acquitted upon the same alleged offense in a cause wherein the identical evidence was introduced.' He admits that the 'Court * * * held this not to have been double jeopardy, State v. Ashe, (Mo.1961) 350 S.W.2d 768,' and since this precise issue previously was adjudicated adversely to appellant, he is precluded from litigating the question further by means of a motion to vacate under Rule 27.26, supra. State v. Thompson, Mo., 324 S.W.2d 133, 139(8); State v. Morton, Mo., 349 S.W.2d 914, 915(2). Appellant suggests, however, that the decision of this court on original appeal 'in view of the great number of recent decisions of the Supreme Court of the United States * * * is no longer in line with authority and should be overruled and the Appellant discharged * * *.' Appellant's citations of State v. Clark, 220 Mo.App. 1308, 289 S.W. 963; State v. Toombs, 326 Mo. 981, 34 S.W.2d 61; State v. Bockman, 344 Mo. 80, 124 S.W.2d 1205; Green v. United States (1957), 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, and United States v. Maybury (2 Cir. 1960), 274 F.2d 899, do not support his suggestion because they predate the original appeal in this case; and Hoag v. State of New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 was discussed in the original appeal at 350 S.W.2d l.c. 770. Appellant's only later citation, Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100, is clearly distinguishable. There the jury was sworn to try six counts against defendant and was thereafter discharged because the prosecuting witness essential to two counts was absent. Defendant moved to dismiss those two counts, the move was opposed by the prosecution, and, subsequently, a jury was impaneled to try...
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Ashe v. Swenson
...v. Ashe, 350 S.W.2d 768, 771. A collateral attack upon the conviction in the state courts five years later was also unsuccessful. State v. Ashe, 403 S.W.2d 589. The petitioner then brought the present habeas corpus proceeding in the United States District Court for the Western District of M......
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State v. Thompson
...no former jeopardy violation. State v. Ashe, 350 S.W.2d 768, 771 (Mo. 1961). A post-conviction attack was unsuccessful. State v. Ashe, 403 S.W.2d 589 (Mo.1966). After the federal district court denied habeas corpus relief, the Eighth Circuit Court of Appeals affirmed. The Supreme Court, how......
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State v. Wood
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Ashe v. Swenson
...This motion was denied by the state circuit court. On appeal, with his present retained counsel, the denial was affirmed. State v. Ashe, 403 S.W.2d 589 (Mo.1966). The court again mentioned Hoag v. New Ashe then filed his habeas petition with the United States District Court for the Western ......