Larson v. State, 53876
| Decision Date | 10 February 1969 |
| Docket Number | No. 53876,No. 2,53876,2 |
| Citation | 437 S.W.2d 67 |
| Parties | LeRoy L. LARSON, Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
Robert G. Duncan, Pierce & Duncan, Kansas City, for appellant.
Norman H. Anderson, Atty. Gen., Walter W. Nowotny, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
LeRoy L. Larson, the movant herein, appeals from the action of the Circuit Court in overruling without an evidentiary hearing his motion to vacate sentence and judgment pursuant to Supreme Court Rule 27.26, V.A.M.R. We reverse and remand.
Defendant was charged by indictment dated December 5, 1960, with murder in the first degree. Two attorneys were appointed on December 7, 1960, to represent defendant. On February 10, 1961, he appeared with counsel in the Circuit Court of Clay County and entered a plea of guilty, upon which he was sentenced to life imprisonment.
On April 23, 1968, Larson filed a pro se motion under Rule 27.26 to vacate said judgment and sentence of life imprisonment. Counsel was not appointed to represent him in the Circuit Court on this motion and on April 25, 1968, the trial court overruled the 27.26 motion in the following order:
'Therefore, it is ordered and adjudged by the court that the movant recover naught by his motion to set aside or correct conviction or sentence in cause number Cr. 1070, State of Missouri vs. LeRoy L. Larson, and that this cause be, and the same hereby is dismissed.'
Thereafter, Larson took timely appeal to this court and the trial court appointed counsel to represent him on appeal pursuant to Supreme Court Rule 27.26(l).
Larson's 27.26 motion asserted three alleged grounds for relief, two of which are briefed and argued on appeal.
One question presented is whether the indictment was fatally defective on the theory that it did not allege the date of the death of the person whom Larson was charged to have murdered. The indictment against Larson was as follows:
'The Grand Jury of the State of Missouri, duly summoned from the body of the County of Clay in the State of Missouri, impaneled, sworn and charged to inquire within and for the body of Clay County and State aforesaid, now here in Court, upon their oaths present and charge that the defendant, Leroy Lee Larson, at and in the County of Clay and the State of Missouri, on or about the 25th day of November, 1960, did wilfully, unlawfully and feloniously in and upon one Bennie A. Hudson, deliberately, premeditatedly and of his malice aforethought, did make an assault and with a dangerous and deadly weapon, to-wit, a pistol, then and there loaded with cartridges, which he, the said Leroy Lee Larson, in his hands then and there had and held at and against the said Bennie A. Hudson, and did then and there shoot off and discharge and unlawfully, feloniously, deliberately, premeditatedly and of his malice aforethought, did shoot, strike and mortally wound him the said Bennie A. Hudson, and from the mortal wounds inflicted the said Bennie A. Hudson, did then and there die, contrary to the form of statute in such cases made and provided, and against the peace and dignity of the State of Missouri.'
It is defendant's contention that the indictment should have charged specifically the date of death of Bennie A. Hudson and that it is fatally defective for not so doing. Some early cases such as State v. Sides, 64 Mo. 383, and State v. Hagan, 164 Mo. 654, 65 S.W. 249, are cited.
The precise point raised by Larson was considered by this court in the case of State v. Brookshire, Mo., 368 S.W.2d 373. In that case defendant Brookshire was charged with murdering one Neiss and the information was quite similar to the indictment herein. It did not specifically charge the date that Neiss died. In overruling the contention that this made the information fatally defective, this court said, l.c. 381: ...
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