State v. Williams

• Citation: 6 S.W.2d 915,320 Mo. 296
• Decision Date: 25 May 1928
• Docket Number: 28660
• Parties: The State v. Cleo Williams, Appellant
• Court: United States State Supreme Court of Missouri

6 S.W.2d 915

320 Mo. 296

The State v. Cleo Williams, Appellant

No. 28660

Supreme Court of Missouri

May 25, 1928

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Affirmed.

L Amasa Knox, Chas. H. Calloway and John E Wesson for appellant.

(1) The court erred in appointing counsel for the defendant without first ascertaining from defendant his ability so to do, or without allowing him time to consult parents and friends to secure counsel of their own selection in order that he might be properly advised, the defendant not having requested the court to appoint counsel for him. Sec. 3957, R. S. 1919; State v. Terry, 201 Mo. 697; State v. Moore, 151 Mo. 514; Cross v. State, 132 Ind. 65; Hendryx v. State, 130 Ind. 265; Com. v. Mattern, 26 Pa. Dist. 777; People v. Cook, 45 Hun, 34; People v. Thompson, 199 N.Y.S. 368. (2) The defendant being ignorant, illiterate and backward, should have had counsel to represent him who would have consulted with defendant to the end that all of his legal and constitutional rights might have been preserved. Cook v. State, 98 Tex. Cr. 553. (3) The court erred in accepting the plea of guilty of defendant before ascertaining whether such plea was made by a person of competent intelligence, freely and voluntarily, with a full and complete knowledge, appreciation and understanding of the nature and consequences of such a plea. State v. Stephens, 71 Mo. 535; State v. Richardson, 98 Mo. 564; 16 C. J. 401, sec. 737; 1 Archbald on Crim. Prac. & Pl. (8 Ed.) 334; 1 Greenleaf on Evidence, sec. 216; 2 Bishop New Cr. Prac. (2 Ed.) sec. 795, p. 619; Com. v. Battis, 1 Mass. 95; Green v. Com., 94 Mass. (12 Allen) 155; State v. Johnson, 21 Okla. 40, 22 L. R. A. (N. S.) 463; Morgan v. State, 243 Pa. 993; State v. Hill, 81 W.Va. 676; Sutton v. State, 250 Pa. 930; State v. Stone, 101 W.Va. 53; Green v. United States, 46 L. R. A. (N. S.) 1117; Krolage v. People, 224 Ill. 456; Deloach v. State, 77 Miss. 691; Batchelor v. State, 189 Ind. 69; State v. Kelly, 206 Mo. 685; People v. Luby, 99 Mich. 89; People v. Kaiser, 150 A.D. 541; State v. Branner, 149 N.C. 559. (4) The court erred in invading the province of the jury, in that after the jury had been summoned and sworn to try the issues and the prosecuting attorney had read the information to the jury and made his opening statement to the jury as to what the State would prove, by sending the jury to the jury room; sentencing the defendant to be hanged and in not permitting the jury to hear the evidence, accepting the plea of defendant and instructing the jury to return a verdict and fix the penalty. Sec. 3247, R. S. 1919; Wartner v. State, 102 Ind. 57; Lowery v. Howard, 103 Ind. 440; Koerner v. State, 96 Ind. 243; Crowder v. State, 69 Ark. 330; State v. Genz, 57 N. J. 459; Bell v. State, 44 Ala. 9; Concemi v. People, 18 N.Y. 128. The action of the court in this case was a denial to the defendant of due process of law, notwithstanding the fact that the accused made no objection. The judgment is void and defendant should be discharged. Art. 2, sec. 30, Art. 14 Amendments, U.S. Constitution; United States ex rel. Valotta v. Ashe, 2 F.2d 735; Lewis v. United States, 146 U.S. 370; Pierce v. Commonwealth, 18 Pa. 103; Bell v. State, 44 Ala. 393; Cancemi v. People, 18 N.Y. 128; McCauley v. State, 26 Ala. 135; People v. Cage, 48 Cal. 323; 12 C. J. 1190; United States v. Lee, 106 U.S. 196; State v. Height, 117 Iowa 650. (5) The judgment and sentence are contrary to law and void in that Sec. 4048, R. S. 1919, and amendments thereto, under which said judgment and sentence are based, giving the court the right to assess and fix the punishment upon a confession of guilt, is repugnant to and inconsistent with Sec. 3247, R. S. 1919, and amendments thereto, authorizing the jury, in its discretion, to fix the punishment for rape upon a conviction of guilt. Penal statutes are to be strictly construed. State v. Butler, 178 Mo. 272; State v. Canton, 43 Mo. 48; Craig v. Transit Co., 116 Mo.App. 235; Riddick v. Ter., 1 Mo. 147; 36 Cyc. 1180. (6) The court erred in refusing to permit the jury to determine the guilt or innocence of the defendant after the jury had been impanelled and sworn to try the issues between the State and the defendant and the jury had not been discharged, and the defendant had been placed in jeopardy and the court proceeded to sentence defendant to die, in violation of Art. 2, sec. 23, Mo. Constitution, and of Art. 5, Constitution of the United States. United States v. Bigelow, 3 Mackey, 393; State v. Ward, 48 Ark. 36; O'Brian v. Com., 72 Ky. (9 Bush.) 333, 15 Am. Rep. 715; Teat v. State, 53 Miss. 439; McCauley v. State, 26 Ala. 135; United States ex rel. Valotta v. Ashe, 2 F.2d 735. Presuming that under the circumstances the plea of guilty should have been received or accepted at all, the court erred in refusing to accept the plea of guilty when first offered and to pronounce upon defendant the sentence of the law without further proceeding, and without any independent adjudication of his guilt. 16 C. J. secs. 734, 3012; People v. Utter, 209 Mich. 214. (7) In cause No. C-8532, the court erred in sentencing appellant to be hanged on the 17th day of August, 1927, because immediately prior to the pronouncement of this sentence, the court had sentenced appellant to be hanged on the 17th day of August, 1927, under information No. C-8531. Where two indictments were pending at one time and for crimes committed before trial and defendant is convicted and sentenced for one of the felonies, he cannot be sentenced for the commission of another felony committed prior to the first conviction. 13 C. J. 920; State v. Bell, 212 Mo. 130; Ex parte Meyers, 44 Mo. 279; State v. Jolly, 96 Mo. 435; State v. Buck, 120 Mo. 479; Wartner v. State, 102 Ind. 51; Green v. United States, 46 L. R. A. (N. S.) 1119; Batchelor v. State, 189 Ind. 69; State v. Wurdeman (Mo.), 246 S.W. 189.

North T. Gentry, Attorney-General, and A. B. Lovan, Assistant Attorney-General, for respondent.

(1) After the court appointed lawyers to represent the defendant, the defendant's mother employed another lawyer. The defendant not only had the services of a lawyer appointed by the court, but also had a lawyer of his own race employed by the defendant's mother. Sec. 3957, R. S. 1919. (2) Defendant was not wrongfully inveigled into a plea of guilty and was not given to understand that he would receive a sentence to the penitentiary, and the court did not, under the circumstances, unjustly sentence him to hang. The defendant pleaded guilty as soon as he was arrested; he pleaded guilty at the preliminary; he pleaded guilty at the first opportunity in the circuit court; he pleaded guilty before he had an attorney; he pleaded guilty after he had an attorney. (3) The defendant was not prejudiced because the court at first refused to accept his plea of guilty. He did finally accept it, and then, in order to verify statements made as to the guilt of the defendant, the court heard evidence so as to know what punishment ought to be assessed. (4) There was due process of law in this case. There is a statute defining the offense of rape; the circuit court is a court of competent jurisdiction; there was an accusation in due form; the defendant had notice and opportunity to meet the charge; his plea of guilty eliminated the trial by jury. These things constitute due process of law in a criminal case. (5) When the defendant entered his plea of guilty, the court, and not the jury, had the authority to assess the punishment. Sec. 4048, R. S. 1919; Ex parte Dusenberry, 97 Mo. 506. (6) A defendant may be tried on two or more separate charges at the same term of court and be sentenced separately in each case. The fact that the defendant was sentenced to be hanged on both charges, does not change this rule. If he had not appealed, he, of course, would have been hanged only once. Since he has appealed from both judgments, if for any reason the court should reverse one of the cases, then he will be hanged on the case approved by the court. Sec. 3697, R. S. 1919; State ex rel. Meininger v. Breuer, 304 Mo. 381.

Davis, C. Higbee and Henwood, CC., concur.

OPINION

DAVIS

On June 28, 1927, the Assistant Prosecuting Attorney of Jackson County filed in the circuit court two verified informations, charging defendant in each information with rape. The first information charged, on June 27, 1927, the ravishing of one Alta , and the second, on June 26, 1927, the ravishing of one Beulan . Upon defendant pleading guilty as to each charge, the court, on July 13, 1927, entered judgments and sentences, fixing the punishment in each case at death. On July 19, 1927, motions to set aside the judgments were filed, which the court overruled, defendant perfecting an appeal in both cases to this court.

The record shows that about ten days prior to July 13, 1927, it appearing that defendant was without counsel, the court appointed, at his request, William T. Alford and C. W Middleton as such. On July 12, 1927, Roger Q. Mason entered his appearance as counsel for defendant, having been employed by defendant's mother, Middleton withdrawing as such with consent of the court. In open court on said latter day, defendant offered to plead guilty of raping Alta, as charged in the information, which the court refused to accept, ordering a plea of not guilty entered. On July 13, 1927, after qualifying a panel of twelve jurors, defendant, at the close of the opening statement for the State, confessed his guilt in open court before the court and jury, and said he was guilty as charged in the information, withdrawing his plea of not guilty, which the court accepted. The court then ordered the jury to retire, and defendant availed himself of the privilege of...