Abercrombie v. State

• Decision Date: 14 September 1970
• Docket Number: Nos. 54952,No. 2,54953,s. 54952,2
• Parties: John R. ABERCROMBIE, Movant-Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 758

457 S.W.2d 758

John R. ABERCROMBIE, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 54952, 54953.

Supreme Court of Missouri, Division No. 2.

Sept. 14, 1970.

Fred Foster, Jr., Richard E. Feutz, Camdenton, for appellant.

John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.

BARRETT, Commissioner.

On May 3, 1965, John R. Abercrombie, represented by distinguished counsel, Honorable Will F. Berry, Jr., entered pleas of guilty to two charges of murder in the first degree and was sentenced in each case to a term of life imprisonment. (He had two prior felony convictions in California, one after a jury trial and the other upon a plea of guilty.) The pleas were entered one year and nineteen days after Abercrombie's arrest on the day of the murders and after, in the language of his lawyer when the pleas were entered, 'a full preliminary hearing' in both cases and after two psychiatric examinations, one of 28 days in the state hospital at Fulton where he was 'found capable' of assisting his attorney and, incidentally, of standing trial.

The undenied facts of the two killings are that on the evening of May 12, 1964, Abercrombie followed the automobile of Cecil and Ruth Bybee into the Eldorado Motel in Camden County. While the Bybees were unpacking Abercrombie approached, engaged them in conversation, produced a gun and for no known reason shot and killed both Mr. and Mrs. Bybee and drove away. Shortly he and his fiancee, Katherine Nance, were arrested and the murder weapon, a .38 caliber revolver, was found on the floor of his automobile.

After abortive 27.26, V.A.M.R., proceedings, Abercrombie on September 27, 1968, filed long, rembling amended 27.26 motions in each case and two lawyers, Fred Foster, Jr., and Richard E. Feutz, were appointed to represent him. In addition, on the day of hearing, Ben Brown, an inmate of the penitentiary, appeared at counsel table 'to help John here and help in these proceedings.' The two motions were consolidated, Brown was permitted to remain in the courtroom and there was a full and unlimited hearing of Abercrombie's motion. The court made a detailed finding of fact, all issues were found against Abercrombie and he has appealed from the orders denying his motions to vacate the judgments and sentences.

The appellant's first two claims of relief relate to the informations--that they failed to charge murder in the first degree and second, that the court's statement 'during the pleas' that defendant 'did kill and murder' were not in the informations and were misleading and for these reasons he urges that he is entitled to be discharged. State v. Small, 313 Mo. 66, 280 S.W. 1033. Specifically, appellant's counsel urges that the informations omit an essential element of murder in the first degree--'as to the time and place of death of the deceased' and in their failure to state that 'then and there * * * did kill and murder.' And it is said that the court's statement, when accepting the pleas, that the charges 'you did kill and murder' misled the appellant and fearful of the death penalty he entered pleas of guilty. The state, on the other hand, contends that the informations charge murder in the first degree and in any event are not fatally defective for any of the reasons urged. In its brief the state says that it is 'unaware of any cases considering the precise issue as to whether an information must allege the place of death.'

At common law, in first degree murder, it was necessary to allege the time and place of the act causing death 'and the place of death.' 40 Am.Jur.2d (Homicide) §§ 232, 236; 2 Warren Homicide, § 177, pp. 75--76. The Missouri cases are collected in the annotation: 'Necessity and materiality of statement of place of death in indictment or information charging homicide' 59 A.L.R.2d 901, 905. These cases arose, however, on motions to quash, pleas in abatement or other appropriate methods of attack and in some instances on an objection of variance. 40 Am.Jur.2d § 237, p. 509. The informations here employ the magic words of the statute, the language essential to a charge of murder in the first degree, that Abercrombie 'did then and there, with specific criminal intent, wilfully, intentionally, unlawfully, maliciously, deliberately, feloniously, on purpose, and of his malice aforethought, in and upon one Ruth Bybee, then and there being, feloniously, wilfully, deliberately, premediatedly and of his malice aforethought make an assault with a dangerous and deadly weapon, to wit, a loaded .38 caliber revolver, and did inflict upon her, the said Ruth Bybee, a mortal gunshot wound from which she died.' RSMo 1959, § 559.010, V.A.M.S. The statute employs the underscored language in defining murder in the first degree, it does not in terms require the allegation of the place of death even though in the nature of things the fact of the death of the victim is the very essence of the crime--here that 'said Ruth Bybee * * * died.' In State v. Ramsey, 355 Mo. 720, 197 S.W.2d 949, an information was substituted for an indictment 'quashed because it did not specifically allege the date on which Miss Davidson died.' Upon a claim that there could be no substitution because the indictment was fatally defective the court held 'that the indictment was not a nullity' and therefore a substitute information was permissible and proper. Supporting the informations here, since they allege the death, impliedly 'immediately,' in Camden County, it may be said that "then' has relation to that time, and 'there' to the place.' State v. Steeley, 65 Mo. 218, 221. After reviewing the problem in depth the court in State v. Borders, Mo., 199 S.W. 180, and again in State v. Majors, 329 Mo. 148, 44 S.W.2d 163, made this observation: 'Of what avail would it have been to defendant either in the preparation or in the making of his defense if the place of the death of his victim had been stated, or, if stated, it had been shown to be incorrect? Constituting no defense, it was not a substantive fact, and its averment was unnecessary.' In this posture, in the absence of a bill of particulars or other timely objection (41 Am.Jur.2d, Indictments & Informations, §§ 299--301), the appellant's pleas of guilty to both indictments 'waived all defenses other than that the information charged no offense.' State v. Conley, Mo., 123 S.W.2d 103; State v. Johnson, 93 Mo. 317, 6 S.W. 77; Larson v. State, Mo., 437 S.W.2d 67, 69; State v. Brookshire, Mo., 368 S.W.2d 373.

Other points briefed and argued by appellant's counsel are that (in 1964) in violation of the precepts of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, he was denied the right to counsel 'prior to giving written or incriminating statements or confessions,' that his constitutional rights were violated by reason of an illegal search and seizure 'of a certain pistol mentioned in evidence' and finally that he 'entered pleas of guilty due to the totality of circumstances which lead to coercion, misrepresentation, and misinformation so as to induce movant to enter pleas of guilty.'

Abercrombie must have made incriminating statements...