State ex rel. Lodwick v. Cottey

• Decision Date: 19 June 1973
• Docket Number: No. KCD,KCD
• Citation: State ex rel. Lodwick v. Cottey, 497 S.W.2d 873 (Mo. App. 1973)
• Parties: STATE of Missouri ex rel. John LODWICK, Jr., Petitioner, v. Honorable Frank L. COTTEY, Special Judge, Circuit Ct. of Livingston County, Missouri, Respondent. 26615.
• Court: Missouri Court of Appeals

Page 873

497 S.W.2d 873

STATE of Missouri ex rel. John LODWICK, Jr., Petitioner, v. Honorable Frank L. COTTEY, Special Judge, Circuit Ct. of Livingston County, Missouri, Respondent.

No. KCD 26615.

Missouri Court of Appeals, Kansas City District.

June 19, 1973.

Motion for Rehearing and/or Transfer to Supreme Court Denied

July 16, 1973.

Motion to Transfer from Court of Appeals Denied Sept. 10, 1973.

Robert G. Duncan, Duncan & Russell, Gladstone, Dick B. Dale, Richmond, for petitioner.

William S. Brandom, Clay County Prosecutor, Liberty, for respondent.

Before DIXON, C.J., and SHANGLER, PRITCHARD, SWOFFORD and WASSERSTROM, JJ.

WASSERSTROM, Judge.

Relator Lodwick seeks to prohibit the respondent, Judge Cottey, from proceeding to the trial of a criminal charge presently pending against Lodwick. This case presents a procedural tangle of byzantine complexity.

On March 9, 1966 a grand jury in Clay County, Missouri returned an indictment alleging that on April 8, 1961, Lodwick 'being the duly elected and acting Judge of the Magistrate Court of the Eastern District of Clay County, Missouri, by virtue of his office did receive into his hands a certain check in the amount of $520.00 dated April 8, 1961, and made by Stanton Pearson to John Lodwick, Jr. in payment of a certain fine assessed against Harold Edward Pearson in a certain judgment rendered in the said Magistrate Court and the said John Lodwick, Jr. then and there willfully, unlawfully and feloniously did convert to his own use and did embezzle and negotiate said check and willfully, unlawfully and feloniously did convert the said sum of $500.00 acquired thereby to his own use, the same being the property of the State of Missouri and the County of Clay, and thereby willfully, unlawfully and feloniously did embezzle, steal, take and carry away by deceit the said sum of $500.00, the property of said State and County, to his own use with intent to deprive the State and County of the use thereof * * *.'

In May, 1966 that indictment, together with six other similar charges against Lodwick were transferred on change of venue to Livingston County. In the circuit court of the latter county various motions were filed and submitted to Judge Morgan. On November 14, 1966, Judge Morgan overruled all motions so submitted in all seven cases, ordered the defendant formally arraigned on each charge and ordered that one of the cases to be selected by the prosecuting attorney be set for trial at the earliest convenient date.

Unfortunately, from the viewpoint of prompt prosecution of this case, Judge Morgan very shortly after that order was appointed a member of the Kansas City Court of Appeals, and, of course, became disabled for that reason from proceeding to preside at the trial of this case. He was succeeded as circuit judge by Judge Kenneth R. Lewis, before whom additional motions were filed on behalf of Lodwick. Judge Lewis disqualified himself, and the Supreme Court transferred Judge Romjue as special judge to hear all seven cases.

In addition to the delays occasioned by those changes in judicial personnel, there was also additional delay arising from changes in counsel, both for the prosecution and defense, and continuances on the ground of counsel being members of the legislature, as well as from other causes such as illness. Evidentiary hearings on the motions were, however, finally concluded before Judge Romjue on November 10, 1971, and the cases were taken under advisement by the court, with leave to the parties to file briefs.

On September 18, 1972, Judge Romjue filed his written findings and order concerning those motions. In this twelve-page document, Judge Romjue summarized all of the procedural developments which had occurred to that date and discussed all of the various points which had been raised on behalf of the defendant. The only portion of the document which need be noted for present purposes is the section entitled 'Sufficiency of the Indictments and Informations'. In that section Judge Romjue interpreted each indictment as attempting to allege either the stealing of money without the consent of the owner, or the stealing of that money by deceit. Judge Romjue went on to say 'the court believes as to each of the seven charges (1) each is insufficient to charge 'stealing by deceit' because there is no allegation that the victim relied upon any misrepresentation of the defendant. State v. Kesterson, supra, and (2) each is insufficient to charge stealing 'without the consent of the owner' under State v. White, supra, l.c. 185, 186.' Judge Romjue then proceeded: 'The State, may if it desires, amend the single information and substitute informations for the indictments and leave so to do is given under Rule 24.02 to be exercised by the State within forty days from the filing of this ruling'. The document then concluded as follows:

'The motions of defendant are denied in each case; a copy hereof will be placed in the file of each case by the Circuit Clerk.'

After the entry of that order Judge Romjue disqualified himself, and Judge Cottey was appointed by the Supreme Court as a substitute special judge on October 19, 1972. On that same date the State filed a substitute information for the indictment in this case, the substitute information alleging that Lodwick on April 8, 1961:

'by virtue of his office, came into possession of and negotiated a certain check in the amount and value of Five hundred Twenty dollars ($520.00) given as payment of a certain fine and Court costs assessed against Harold Edward Pearson in a certain judgment rendered by said John Lodwick, Jr., said check being dated April 8, 1961, and bearing the signature of Stanton Pearson as maker thereof and being payable to John Lodwick, Jr., and out of the proceeds from the negotiation of said check said John Lodwick, Jr., did then and there willfully, unlawfully, and feloniously steal, take and carry away the amount of Five hundred dollars ($500.00), lawful currency of the United States of America, without the consent of the owners, the State of Missouri and the County of Clay * * *'

Following the filing of that substitute information, the defendant Lodwick on November 8, 1972, filed a motion to dismiss this new substitute information. This motion set forth various grounds, the most important one for present purposes being a claim that the order of Judge Romjue constituted a dismissal of the original indictment and that the longest possible period of limitation then expired before the State got around to filing the substitute information. Judge Cottey did not rule directly on any of the grounds set forth in Lodwick's motion, but instead on November 16, 1972, made a ruling on his own motion which undertook to solve the procedural problems. This order by Judge Cottey was as follows:

'Upon consideration of the issues presented Court of its own motion orders that the finding of Judge Romjue's memorandum herein, insofar as it purports to hold the original indictment herein to be insufficient, and insofar as it orders or authorizes the substitution therefor of an information herein, be, and the same hereby is, set aside and for naught held, (said memorandum having been filed herein on September 18, 1972), and that defendant's motion to quash or dismiss said indictment be overruled, and that the information heretofore filed herein be dismissed, and that this cause be set for trial on the original indictment * * *'

In response to that order Lodwick then proceeded to file new motions on January 5, 1973, attacking the original indictment, asking that it be declared a nullity, that it be dismissed and quashed, and that the defendant be discharged. In answer to those motions, Judge Cottey again reviewed the entire proceeding and entered of record a six-page Order dated January 22, 1973. So far as pertinent here, Judge Cottey expounded his reasons for believing the original indictment was not defective and undertook to distinguish the White and Kesterson cases which had been relied upon by Judge Romjue. Judge Cottey proceeded to say:

'Accordingly, having thus disagreed with the principle and purport of Judge Romjue's ruling, I set it aside by my order of that date, and, in light of that ruling, reached the conclusion that the substitute information was unnecessary and should be dismissed.'

Judge Cottey accordingly directed that all of the pending motions be denied and that the case be set for trial in regular course. Nevertheless, the situation had become so complex and unique that Judge Cottey himself urged that his ruling be tested by writ of prohibition in this Court.

Pursuant to that suggestion, Lodwick did file application in this Court for writ of prohibition on February 23, 1973. The State specifically elected not to resist issuance of a preliminary writ of prohibition, and this Court's preliminary writ did issue on March 13, 1972.

The contentions made by Lodwick in this Court can be summarized as follows: (1) that the three year statute of limitations applies and that period expired prior to the filing of any indictment or information; (2) that even if the five year statute of limitations applies, that period expired before the State filed its substitute information (3) that Judge Cottey had no authority to overrule Judge Romjue's order and to reinstate the original indictment which had been dismissed by Judge Romjue; (4) that the original indictment was insufficient to charge an offense; and (5) that the substitute information was improper and should be dismissed because it states a new and different offense from that of the original indictment.

I

With respect to the problem of limitations, Lodwick correctly points out that if the general three year period of limitations for criminal prosecution under § 541.200 ¹ applies, then clearly that three years expired prior to the filing of any charge against him. Therefore, it is necessary for the State to bring this case within an...