DeLuca v. State

• Decision Date: 08 March 1971
• Docket Number: No. 55703,No. 1,55703,1
• Citation: 465 S.W.2d 609
• Parties: James Cornelius DeLUCA, Movant-Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 609

465 S.W.2d 609

James Cornelius DeLUCA, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 55703.

Supreme Court of Missouri, Division No. 1.

March 8, 1971.

Motion for Rehearing or to Transfer to Court En Banc Denied

April 12, 1971.

Everett S. Van Matre, Mexico, Mo., for movant-appellant.

John C. Danforth, Atty. Gen., John W. Cowden, Asst. Atty. Gen., Jefferson City, for respondent.

WELBORN, Commissioner.

Appeal from denial of relief in proceeding under Supreme Court Rule 27.26, V.A.M.R., to set aside conviction and sentence upon jury trial of 18 years' imprisonment for robbery in the first degree. The judgment of conviction was affirmed on a prior direct appeal to this Court. State v. DeLuca, 448 S.W.2d 869.

The points raised by appellant in this proceeding relate to the sufficiency of the information to invoke the Second Offender Act, under which appellant was sentenced, and to charge the offense of robbery in the first degree.

The information reads as follows:

'Thomas I. Osborne, on his official oath as the Prosecuting Attorney of Audrain County of the State of Missouri, informs the Court that in said County on or about the 21st day of February, 1968, the defendant James Cornelius DeLuca willfully and feloniously committed the offense hereinafter stated.

'Said defendant took property, to wit, money, from Universal C.I.T. Credit Corporation, through its employee and agent, James R. Hayden, in the presence of said Hayden and against his will, by putting him (said Hayden) in fear of some immediate injury to his person.

'FORMER CONVICTION

'As facts for consideration by the trial judge in determining the punishment that the defendant, James Cornelius DeLuca, shall receive for the offense that he is charged herein with having committed on or about the 21st day of February, 1968, this informant, on his oath as said Prosecuting Attorney and according to his information and belief, states that on or about October 24, 1960, in the Circuit Court of Jackson County in the State of Missouri, said defendant was convicted of having committed the crime of robbery, first degree and was subsequently imprisoned therefor in the Missouri Department of Corrections.

'WHEREOF the informant asks the judgment of the Court.'

Appellant contends that the second offender allegation is insufficient because it fails to aver that appellant was sentenced in the Jackson County case. The Second Offender Act, § 556.280, RSMo 1969, V.A.M.S., by its terms, applies to a 'person convicted of any offense punishable by imprisonment in the penitentiary, * * * (who) shall be sentenced and subsequently placed on probation, paroled, fined or imprisoned therefor, * * *.'

The substantive charge of the information is claimed to be defective because it does not state the ownership of the property taken and does not charge that the property was taken from the person of the agent as required by § 560.120, RSMo 1969, V.A.M.S.

This proceeding is, of course, a collateral attack upon the judgment of conviction. Although prior cases in this Court have not made particular note of the scope of permissible attack in such a proceeding against the sufficiency of an indictment or information (see State v. Garner, Mo.Sup., 432 S.W.2d 259; State v. Ball, Mo.Sup., 432 S.W.2d 265), it is important to recall the nature of the remedy which Rule 27.26 provides in a case such as this. As this Court has pointed out, the scope of collateral attack under Rule 27.26 is generally that permitted in habeas corpus proceedings. State v. Shell, Mo.Sup., 299 S.W.2d 465, 467(1); State v. Rutledge, Mo.Sup., 317 S.W.2d 365, 366(1). Federal courts view the remedy under 28 U.S.C.A. § 2255, upon which our Rule 27.26 is patterned, in the same light. Cardarella v. United States, 8th Cir., 351 F.2d 443, cert. den., 382 U.S. 1020, 86 S.Ct. 640, 15 L.Ed.2d 534; Holt v. United States, 8th Cir., 303 F.2d 791, cert. den., 372 U.S. 970, 83 S.Ct. 1095, 10 L.Ed.2d 132. In Cain v. United States, 8th Cir., 349 F.2d 870, 872, the court, in considering, under § 2255, an attack upon an indictment, stated:

'Palomino (v. United States, 9th Cir., 318 F.2d 613) declared (p. 615) that the lack of specific allegation that the defendant had knowledge of the illegal importation did not make the indictment in that case so defective as to leave the conviction subject to collateral attack, because the conspiracy to receive and conceal charged against the defendant had been alleged to be 'in violation of section 174,' and this was a 'necessary inclusion of that element.'

'The opinion added (p. 616): 'It is the general rule that an indictment, not questioned at trial or on direct appeal, will not be held insufficient on a motion to vacate the judgment entered thereon unless it is so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had. * * * We do not believe that * * * the instant indictment is defective in this sense. All of the essential elements were either alleged or are necessarily to be implied from what was alleged.'

'(2) This is in harmony with the view expressed by us in Keto v. United States, 189 F.2d 247, 251 (8 Cir. 1951), and in subsequent cases which need not here be enumerated, that the sufficiency of an indictment or information is not open to collateral attack after conviction unless it appears that the circumstances are exceptional, that the questions raised are of 'large importance,' that the need for the remedy sought is apparent, and that the offense charged was one of which the sentencing court manifestly had no jurisdiction.'

See Taylor v. United States, 8th Cir., 332 F.2d 918, 919--920(1); Link v. United States, 8th Cir., 352 F.2d 207, 209--210(1--3); Hall v. United States, 4th Cir., 410 F.2d 653, 659--660.

In Tucker v. Kaiser, Mo.Sup., 176 S.W.2d 622, 624(3), the Court, in discussing the scope of permissible attack in habeas corpus upon the validity of an information, stated:

'We next take up the five more specific assignments. But first let us say that although the last (eighth) assignment above charges the information was so fatally defective as to deprive the circuit court of jurisdiction, yet when viewed on their merits, it appears the assignments were drawn on the theory that every point which may be raised on demurrer to an information, before trial, can also be utilized in attacking it by habeas corpus after judgment and sentence; and this notwithstanding the alleged errors were not called to the attention of the trial court at the time, and no appeal was taken. But this, of course, is not true; if it were, there would be no end to criminal litigation. In this very case we heard the petitioner on a writ of habeas last June, in which proceeding four of the same points were raised that are presented in assignments 2, 4, 6, and 7 here--though it is true the former proceeding was based on the original information.

'Our statute of jeofails, Sec. 3952, provides that (parentheses ours): 'no indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected: * * * for any * * * defect or imperfection (of the nature mentioned therein) which does not tend to the prejudice of the substantial rights of the defendant upon the merits: Provided, that nothing herein shall be so construed as to render valid any indictment (or information) which does not fully inform the defendant of the offense of which he stands charged.' In other words, after verdict it must lack some essential averment so that it would not bar another prosecution for the same offense. State v. Toombs, 324 Mo. 819, 833, 25 S.W.2d 101, 107(9); State v. Biven, Mo.Sup.Div. 2, 151 S.W.2d 1114, 1118(10).'

Looking at the information here in the light of the foregoing, the omission of the allegation that appellant was 'sentenced' on the Jackson County charge cannot be...