Newman v. State, No. 13371

CourtCourt of Appeal of Missouri (US)
Writing for the CourtTITUS; FLANIGAN, P.J., GREENE, C.J., and CROW
Citation669 S.W.2d 617
Decision Date20 April 1984
Docket NumberNo. 13371
PartiesJack Edward NEWMAN, Movant-Appellant, v. STATE of Missouri, Respondent.

Page 617

669 S.W.2d 617
Jack Edward NEWMAN, Movant-Appellant,
v.
STATE of Missouri, Respondent.
No. 13371.
Missouri Court of Appeals,
Southern District,
Division One.
April 20, 1984.

Page 618

R.J. Gordon, Public Defender, Joplin, for movant-appellant.

John D. Ashcroft, Atty. Gen., Dan Crawford, Asst. Atty. Gen., Jefferson City, for respondent.

TITUS, Judge.

Jack Newman was jury-convicted of murder in the first degree in the death of Burnal Ray Brown in the perpetration of a robbery which occurred on October 16, 1978. The conviction was affirmed upon appeal. State v. Newman, 605 S.W.2d 781 (Mo.1980). He now appeals from the trial court's denial of his Rule 27.26 1 motion following an evidentiary hearing.

Newman was charged only with capital murder in respect to the killing of Brown. The criminal cause was submitted to the jury under instructions which permitted a finding of guilty of capital murder, first degree murder, second degree murder or manslaughter. State v. Newman, supra, 605 S.W.2d at 785. Newman's first point relied on in this court is that the court nisi erred in denying his 27.26 motion because in the criminal case he was convicted of an offense (first degree murder) for which he had not been charged.

Under § 565.003, L.1977 eff. 5-26-77, a person who unlawfully killed another "in the perpetration of or in attempt to perpetrate arson, rape, robbery, burglary, or kidnapping" was guilty of first degree murder. In § 565.006-1, L.1977 eff. 5-26-77, it was provided that at the conclusion of all jury trials where commission of capital murder was charged, "the jury shall ... by their verdict ascertain, whether the defendant is guilty of capital murder, murder in the first degree, murder in the second degree, manslaughter, or is not guilty of any offense." State v. Gardner, 618 S.W.2d 40, 41 (Mo.1981), involved a conviction of capital murder committed August 31, 1978. State v. Baker, 636 S.W.2d 902, 904 (Mo. banc 1982). Gardner held it reversible error for the trial court to fail to instruct on first-degree murder in the commission of rape. The crime in Gardner, so said the court in Baker, supra at 904, was committed August 31, 1978, or before the effective date (January 1, 1979) of the new Criminal Code (§ 556.031-1 and 3, RSMo 1978); it was therefore not governed by the new code. "Section 556.220, RSMo 1969 (repealed), governed what was a lesser included offense of capital murder in Gardner. Gardner necessarily held that under Section 556.220 (repealed), first degree murder was a lesser included offense of capital murder because it was an 'offense inferior to that charged in the indictment.' § 556.220. This was a correct declaration of the law which controlled the holding in Gardner." The crime with which Newman, movant herein, was charged and of which he was convicted occurred, as previously noted, October 16, 1978, or before the effective date of the new...

To continue reading

Request your trial
6 practice notes
  • State ex rel. Amrine v. Roper, No. SC 84656.
    • United States
    • United States State Supreme Court of Missouri
    • April 29, 2003
    ...innocence. Allegations, however, do not prove themselves. See State v. Twenter, 818 S.W.2d 628, 635 (Mo. banc 1991); Newman v. State, 669 S.W.2d 617, 619 (Mo.App.1984). Habeas corpus is an original action, and Amrine Page 551 has the burden to prove he is entitled to relief. See State ex re......
  • State v. White, No. 55017
    • United States
    • Missouri Court of Appeals
    • March 28, 1989
    ...authorized to allow entry, a warrant for arrest is not necessary." State v. Powell, 728 S.W.2d 622, 625 (Mo.App.1987); Newman v. State, 669 S.W.2d 617, 619 Defendant, in his final point, argues the motion to suppress should have been granted because the State failed to prove by a prepondera......
  • Newman v. Frey, No. 88-2155
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 28, 1989
    ...the merits. Although Newman appealed other aspects of the postconviction decision, he failed to pursue this claim. See Newman v. State, 669 S.W.2d 617, 618-19 (Mo.Ct.App.1984). The federal district court later denied Newman's habeas corpus petition that raised the same claim. On appeal, New......
  • Newman v. State, No. 14242
    • United States
    • Court of Appeal of Missouri (US)
    • December 20, 1985
    ...He then filed a motion under Rule 27.26. That motion was denied by the trial court and affirmed on appeal. See Newman v. State, 669 S.W.2d 617 Thereafter, movant filed another motion under Rule 27.26, alleging that the information on which he was tried was defective. The motion alleged that......
  • Request a trial to view additional results
6 cases
  • State ex rel. Amrine v. Roper, No. SC 84656.
    • United States
    • United States State Supreme Court of Missouri
    • April 29, 2003
    ...innocence. Allegations, however, do not prove themselves. See State v. Twenter, 818 S.W.2d 628, 635 (Mo. banc 1991); Newman v. State, 669 S.W.2d 617, 619 (Mo.App.1984). Habeas corpus is an original action, and Amrine Page 551 has the burden to prove he is entitled to relief. See State ex re......
  • State v. White, No. 55017
    • United States
    • Missouri Court of Appeals
    • March 28, 1989
    ...authorized to allow entry, a warrant for arrest is not necessary." State v. Powell, 728 S.W.2d 622, 625 (Mo.App.1987); Newman v. State, 669 S.W.2d 617, 619 Defendant, in his final point, argues the motion to suppress should have been granted because the State failed to prove by a prepondera......
  • Newman v. Frey, No. 88-2155
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 28, 1989
    ...the merits. Although Newman appealed other aspects of the postconviction decision, he failed to pursue this claim. See Newman v. State, 669 S.W.2d 617, 618-19 (Mo.Ct.App.1984). The federal district court later denied Newman's habeas corpus petition that raised the same claim. On appeal, New......
  • Newman v. State, No. 14242
    • United States
    • Court of Appeal of Missouri (US)
    • December 20, 1985
    ...He then filed a motion under Rule 27.26. That motion was denied by the trial court and affirmed on appeal. See Newman v. State, 669 S.W.2d 617 Thereafter, movant filed another motion under Rule 27.26, alleging that the information on which he was tried was defective. The motion alleged that......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT