448 S.W.2d 599 (Mo. 1970), 54741, McClain v. State

Docket Nº:54741.
Citation:448 S.W.2d 599
Party Name:E. J. McCLAIN, Movant-Appellant, v. STATE of Missouri, Respondent.
Case Date:January 12, 1970
Court:Supreme Court of Missouri
 
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Page 599

448 S.W.2d 599 (Mo. 1970)

E. J. McCLAIN, Movant-Appellant,

v.

STATE of Missouri, Respondent.

No. 54741.

Supreme Court of Missouri.

January 12, 1970

Bourne Bean, George S. Thomas and Thomas E. Wack, St. Louis, for appellant.

Page 600

John C. Danforth, Atty. Gen., Michael L. Boicourt, Asst. Atty. Gen., Jefferson City, for respondent.

PRITCHARD, Commissioner.

Appellant was convicted of the crime of murder in the first degree in a trial to a jury, and was sentenced on March 28, 1941, to life imprisonment. No appeal was taken from the judgment of conviction. He now seeks relief from his sentence under Supreme Court Rule 27.26, V.A.M.R.

The grounds for vacating, setting aside or correcting the sentence are '(a) Denial of counsel at arraignment on capital offense. (b) Denial of the effective assistance of counsel during trial. (c) Denial of counsel during a critical stage of the trial; during deliberations by the jury where legal questions were asked and answered against objections. (d) Denial of counsel during sentencing on a capital offense. (e) Denial of the statutory right of direct appeal of conviction for First Degree Murder.'

By order of this court on November 12, 1968, the case on original appeal from a denial of his motion for relief under Rule 27.26 was remanded for an evidentiary hearing. That hearing was had January 17, 1969. Appellant testified that when he was arraigned on the charge of first degree murder he was not represented by counsel. He asked the court that he be given time to obtain counsel, but the court told him he would have to enter a plea. Appellant did not plead, but the court entered a plea of not guilty for him. Appellant thereafter obtained counsel, the first being Mr. Morris Shenker. 'They wouldn't give him time to prepare the case and interview no witness, and he withdrew. He said he couldn't do me justice or himself either.' Then appellant obtained Mr. Lou Reidel who represented him at the trial. During the trial, when the jury was deliberating, the jury came in and asked a question. Appellant was there at the time, but Mr. Reidel was not in the courtroom. The jury asked the court if appellant could be convicted of a lesser crime. Appellant 'told them I would like to have my attorney present,' but the judge just went ahead and answered the jury's question: 'He told them to consider the Instruction No. 1, Murder First Degree, and go by that and read it,' but gave no affirmative response to the question of whether appellant could be convicted of a lesser offense.

Appellant testified further that Mr. Reidel was not present when he was sentenced, and promised him that he would file a motion for new trial. Mr. Reidel came to the jail and talked to appellant after he had been sentenced and appellant then asked him to appeal to the Missouri Supreme Court. Appellant did not hear from Mr. Reidel any more.

On cross-examination it was brought out from appellant that Judge Sartorius (who is now deceased) was in the courtroom at the time sentence was imposed, and Mr. Snider (the prosecuting attorney) was present. The trial lasted three weeks or more during which time Mr. Reidel was present with appellant.

For the state, Mr. Clyde Snider testified that he was appointed as assistant circuit attorney beginning January 1, 1937, and served through 1941. As a trial lawyer he prosecuted appellant for first degree murder. He recalled that Mr. Louis Reidel (who is deceased)...

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