Hodges v. State
| Decision Date | 08 February 1971 |
| Docket Number | No. 1,No. 56061,56061,1 |
| Citation | 462 S.W.2d 786 |
| Parties | Virgil E. HODGES, Jr., Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
Harold L. Miller, Maysville, for appellant.
John C. Danforth, Atty. Gen., John W. Cowden, Asst. Atty. Gen., Jefferson City, for respondent.
HIGGINS, Commissioner.
Appeal from denial, after evidentiary hearing, of motion under Criminal Rule 27.26, V.A.M.R., to vacate and set aside judgment of conviction and sentence to 25 years' imprisonment entered upon plea of guilty to charge of robbery, first degree, with a dangerous and deadly weapon. §§ 560.120, 560.135, V.A.M.S.
On April 30, 1966, an information was filed charging that on April 24, 1966, Virgil E. Hodges, Jr., 'did then and there unlawfully, willfully and feloniously, by means of a dangerous and deadly weapon, to-wit: a .22 caliber automatic pistol, rob, steal, take and carry away One Hundred Fifty Dollars ($150.00) in lawful money of the United States, the property of Consumers Oil Company, Savannah, Missouri, by then and there using force and violence to the person of one Michael David Hellums, an employee of the Consumers Oil Company, and by then and there putting the said Michael David Hellums in fear of immediate injury to his person, rob, steal, take and carry away, the said lawful money of the said Consumers Oil Company with the felonious intent then and there to deprive the said Consumers Oil Company of the use of the said lawful money and to convert the same to his own use, * * *.'
On April 5, 1967, the court entered judgment, sentence, and commitment, reciting that on January 27, 1967, appellant, aided by counsel of his own choosing, Mr. Richard Mason, withdrew his prior plea of not guilty and, after the court arraigned him 'by reading the information filed to him,' entered his plea of guilty to the 'said crime of felonious stealing by use of a dangerous and deadly weapon as charged in the Information filed.'
As grounds for relief, appellant's motion asserted:
'(a) * * * the sentence of twenty five years is 'excessive' punishment for the offense of 'felonious stealing' * * *.
'(b) * * * the information is 'fatally defective' for the offense of First Degree Robbery with a dangerous and deadly weapon in ommitting the essential element that the acts therein described were 'against the will' of * * * the alleged victum * * *.' At the outset of the hearing the motion was amended to add 'that the information filed is further fatally defective * * * because of the omission and the failure to allege that the property was taken from the person of anyone * * * (or) in the presence of anyone * * * (or) against the will of anyone * * * (or) that one Michael David Hellums was the servant, clerk, or agent of Consumer's Oil Company * * * (or) that * * * (he) was in charge of the property of Consumer's Oil.'
The evidence consisted of the information, the judgment, sentence and commitment, and the testimony of Virgil E. Hodges, Jr.
In his direct testimony, appellant could recall his arraignment and plea of guilty but did not remember the charge to which he pleaded except to say he understood it to be 'felonious stealing with a dangerous and deadly weapon.' He had
Upon cross-examination by the prosecuting attorney, he denied recollection of explanation by the court with respect to the charge and maximum sentence; however, he acknowledged his appearance before the court with his lawyer, his change of plea, and that by it he waived his right to jury trial and confessed his guilt to the charge.
Upon questioning by the court from the record of proceedings made at the time the guilty plea was entered, appellant further acknowledged that he and a cohort had used a gun to threaten and strike their victim to take his money, and that for armed robbery 'the court could give up to death.' The plea record showed that appellant realized he was charged with armed robbery of $150 from Michael David Hellums by putting him in fear of immediate injury to his person. The charge of armed robbery was mentioned several times by the court and, upon each occasion, appellant indicated his understanding that such was the charge to which he was pleading because he was guilty of that offense. Appellant also acknowledged his understanding that the plea was voluntarily entered and was free of any coercion or promises. The record also developed that appellant was accompanied by his great-grandfather at the time of his plea. Finally, upon discussion of the change in appellant's understanding from the time his plea was entered to his position at the 27.26 hearing, appellant conceded he was
In denying the motion, the court found and concluded:
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State v. Garrett
...statute if words of similar import are employed." State v. Parker, 476 S.W.2d 513, 516 (Mo.1972). Emphasis added. Also see Hodges v. State, 462 S.W.2d 786 (Mo.1971), State v. Simone, 416 S.W.2d 96 (Mo.1967), State v. Moore, 501 S.W.2d 197 (Mo.App.1973). The term "feloniously" has been held ......
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State v. Achter
...definite written statement of the essential facts constituting the offense charged' (Rule 24.01, V.A.M.R. (our emphasis); Hodges v. State, 462 S.W.2d 786 (Mo.1971)), we first observe that the facts which the state must plead are ordinarily the same facts which the state must prove beyond a ......
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State v. Healey
...notify a defendant of the charge against him and constitute a bar to further prosecution for the same offense. Hodges v. State, 462 S.W.2d 786, 789(1) (Mo.1971); State v. Bott, 518 S.W.2d 726, 728(2) (Mo.App.1974). We feel that the indictment is sufficient in this regard. The indictment doe......
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State v. Bibee
...sentences of 25 years for robbery in the first degree, with a dangerous and deadly weapon, and held them not excessive. Hodges v. State, 462 S.W.2d 786, 790(3) (Mo.1971); Keeny v. State, 460 S.W.2d 731, 733(5) (Mo.1971); State v. Cooley, 221 S.W.2d 480, 485(11, 12) (Mo.1949); State v. Prest......