Dickson v. State

• Decision Date: 12 January 1970
• Docket Number: No. 2,No. 54369,54369,2
• Citation: 449 S.W.2d 576
• Parties: John Wilson DICKSON, Movant-Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 576

449 S.W.2d 576

John Wilson DICKSON, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 54369.

Supreme Court of Missouri, Division No. 2.

Jan. 12, 1970.

Robert S. Kilker, Wiliam C. Maier, J. Dennis O'Leary, St. Louis, for appellant.

John C. Danforth, Atty. Gen., Peter H. Ruger, Asst. Atty. Gen., Jefferson City, for respondent.

BARRETT, Commissioner.

On March 8, 1966, John Wilson Dickson entered pleas of guilty to two charges of murder in the second degree and one charge of assault with malice with intent to rob and was sentenced to concurrent terms of imprisonment of fifteen years in the murder cases and ten years in the assault case. On December 15, 1967, he instituted this proceeding under rule 27.26, V.A.M.R., to vacate the sentences, he was given a full and complete hearing on his motion, he was represented by diligent court-appointed counsel, the court found all issues against him and he has appealed. While the appellant has employed the form set forth in the rule, in defiance of the rule's spirit and purpose he has set forth a multitude of irrelevant matters and allegations which his counsel should have eliminated by amendment and the defendant not agreeing the court may have been well advised to either dismiss or refuse to hear the matter until there was compliance with the rule. In this category are the flip and misplaced invocations of Magna Carta, the Assize of Clarendon and Coke's Institutes as well as the references to the founding fathers, John Rutledge and George Mason. Out of this disordered maze of allegations his counsel have briefed, argued and asserted five points which they say entitle him to be discharged or to a new trial.

The original indictment in one of the murder cases, to illustrate, is a conventional charge of murder in the first degree 'by any other kind of willful, deliberate and premediated killing,' there is no reference in the indictment to one of the other types of first degree murder, a homicide committed in an 'attempt to perpetrate any * * * robbery.' RSMo 1959, § 559.010, V.A.M.S. Again by way of illustration, one of the murder indictments charges that on December 31, 1965, joseph Price, Melvin Collins, Donald Collins and John Wilson Dickson 'feloniously, willfully, premeditatedly, deliberately, on purpose, and of their malice aforethought did make an assault upon one Pete Valenti with a loaded pistol, and then and there, feloniously, willfully, premeditatedly, deliberately, on purpose, and of their malice aforethought did discharge said pistol at and upon the body of the said Pete Valenti thereby feloniously inflicting a mortal wound upon the said Pete Valenti from which said mortal wound Pete Valenti did die.' While the conventional indictment for murder in the first degree would admit of proof and sustain a conviction of murder in an attempt to commit a robbery it does not in terms allege a robbery nor was it necessary to do so even if the fact was of a homicide in an attempt to rob. State v. Foster, 136 Mo. 653, 38 S.W. 721; State v. Peak, 292 Mo. 249, 237 S.W. 466; State v. Adams, 316 Mo. 157, 289 S.W. 948; State v. King, 342 Mo. 1067, 119 S.W.2d 322 and State v. Bradley, Mo., 234 S.W.2d 556. Only in the indictment for the assault on Mrs. McBride was there any mention of an attempt to rob. There it was charged that Price, the Collins brothers and their first cousin, Dickson, 'did make an assault on Hazel McBride with a pistol with the intent to rob said Hazel' but in the execution of the intent did fail.

When called on June 12, 1967, after noting all appearances, the cases were taken up separately, one by one in detail, and Dickson's counsel, again to illustrate, announced that defendant would withdraw his previously entered plea of not guilty and would enter a plea of guilty. An assistant circuit attorney interposed and said 'the state will reduce the charge to Murder, Second Degree.' Whereupon, in each case, the state's attorney briefly recited the facts of the two murders and the attempt to rob and for the first time it was revealed that the killing of the Valenti brothers and the assault on Mrs. McBride resulted when the four defendants attempted an armed robbery of the Fairlane Market at 2812 North Vandeventer Avenue. After the state's announcement that it would 'reduce' the charge from first to second degree murder the court in addressing defendant's counsel said, 'You are withdrawing his former plea of not guilty and entering a plea of guilty to the amended charge of Murder, Second Degree?' These were the only references, by the state's attorney 'reduce' and by the court 'amended,' concerning the two murder indictments. The state did not, as it could have, substitute informations for the indictments (Criminal Rule 24.02) and by eliminating the words of are charge the appellant and his confederates with murder in the second degree under § 559.020, RSMo 1959, V.A.M.S. There was in fact no amendment or any attempt, to use the language of the court, to 'amend' the indictment. And other than the state's attorney's statement in the record that the state would 'reduce' the charge, there was in point of fact no court minute or clerk's entry, the defendant Dickson simply entered a plea of guilty and after the state's attorney's statement of the facts as to the substantive offense the court, in each case, personally addressed the defendant: 'Mr. Dickson, first of all, let me ask you whether the withdrawal of the former plea of not guilty, made by Mr. Cleary, your attorney, and the plea of guilty to the amended charge of Murder, Second Degree, was with your consent? Mr. Dickson: Yes, sir.'

In these circumstances appellant's counsel argues not that the indictments charge but that 'the facts show' (as stated by the circuit attorney) that the homicides for which Dickson was indicted occurred in the course of an attempted robbery and therefore it is said that the indictments charging murder in the first degree could not be amended, reduced or otherwise changed to murder in the second degree. In effect counsel says that in the circumstance of a killing in an attempt at robbery the defendant must be found guilty of murder in the first degree only and sentenced either to life imprisonment or death or acquitted. It is said that an indictment, unlike an information (Criminal Rule 24.02; RSMo 1959, §§ 543.040, 545.300, V.A.M.S.), cannot in any circumstance be amended, that the state 'made a void attempt to amend the charge' and therefore the court in accepting a plea of guilty and sentencing for second degree murder exceeded its jurisdiction and the 'sentences entered are void as a matter of law' with the consequence that Dickson is entitled to be discharged of the two murder convictions.

But the disposition of this appeal does not require a determination of the problem of whether in Missouri an indictment may be amended. See, however, the annotation 17 A.L.R.3d 1181 and State v. Holbert, Mo.App., 399 S.W.2d 142. Here there was no jury trial, this is a collateral proceeding, and the appeal does not pose the question of whether the proof showing a homicide in an attempted robbery second degree murder could be submitted or in that circumstance whether the jury was compelled to return only one of two possible verdicts, a conviction of first degree murder or an acquittal. State v. Conway, 351 Mo. 126, 171 S.W.2d 677; State v. Hamilton, 337 Mo. 460, 85 S.W.2d 35; State v. Yeager, Mo., 12 S.W.2d 30; State v. Bradley, 361 Mo. 267, 234 S.W.2d 556. The fallacy in the appellant's entire argument is that it ignores these factors: Whatever the facts of the killings, the indictments charge, as stated, the conventional crimes of murder in the first degree which necessarily 'includes the lesser offense of murder in the second degree.' State v. Heath, 221 Mo. 565, 121 S.W. 149; State v. Malone, Mo., 382 S.W.2d 679; State v. Wallach, Mo., 389 S.W.2d 7; State v. Smith, Mo., 411 S.W.2d 89. In that connection, because 'murder in the first degree under our statute every grade and every degree of criminal homicide from the highest to the lowest is embraced' (and) 'the legal representative of the government may declare that he will no further prosecute the particular indictment or some designated part thereof, and this nolle prosequi may well go to the whole of an indictment, to one or more of its counts, or even to a separable part of any one count.' And so when the prosecutor was 'allowed to exercise the right of election to prosecute the defendant for murder in the second degree' the court said that his action 'was simply to enter a nolle as to separable parts of each of the counts of the indictments, thereby eliminating therefrom the counts charging murder in the first degree.' State v. Moxley, 115 Mo. 644, 651, 22 S.W. 575, 577; State v. Peeden, 272 N.C. 494, 158 S.E.2d 615. Ohio statutes permit the amendment of indictments but in a habeas corpus proceeding, a defendant seeking release from the penitentiary on the ground that he had entered a plea of guilty to an offense with which he was not charged, murder in the second degree, the indictment charging a murder 'in the perpetration of a robbery,' the court held that he could nevertheless be convicted of the lesser included offense. Craft v. Alvis, Ohio App., 140 N.E.2d 61. In Louisiana, upon a charge of murder, the state before proceeding with the trial 'abandoned the charge of murder and elected to go to trial only on the charge of manslaughter.' Upon objection to the latter submission the court said, 'In such cases the state may abandon the charge of the greater crime and proceed with the prosecution of the lesser, and no formal amendment of the indictment is necessary for that purpose. A motion in open court in the presence of the accused and entered on the minutes prior to the beginning of the trial is sufficient.' State v. Doucet, 177 La. 63, 66, 147 So. 500, 501, 87 A.L.R. 1356. And in this case, there were no...