State v. Amsden
| Decision Date | 11 March 1957 |
| Docket Number | No. 45452,No. 2,45452,2 |
| Citation | 299 S.W.2d 498 |
| Parties | STATE of Missouri, Respondent, v. Hubert Leroy AMSDEN, Jr., Appellant |
| Court | Missouri Supreme Court |
John M. Dalton, Atty. Gen., Richard W. Dahms, Asst. Atty. Gen., for respondent.
Hubert Leroy Amsden, Jr., was charged in the Reynolds Circuit Court with the crime of rape. Upon a trial before a jury he was convicted of the offense and sentenced to imprisonment in the penitentiary for a term of two years in accordance with the verdict. The trial court undertook to commute such sentence to a like term in the intermediate reformatory for young men (Algoa Farms), and he appealed. The case is here on a full transcript, but defendant has filed no brief. We, therefore, consider such assignments of error as may have been properly preserved in his motion for new trial, and, in addition, those matters specified in 42 V.A.M.S. Supreme Court Rules, Rule 28.02 () respecting which no assignment is necessary.
We find certain of the steps taken in the case so highly irregular and contrary to law and established practice as to warrant discussion of them preliminary to a consideration of the merits. In the first place, and adverting to the judgment, it appears that after imposing suntence of two years in accordance with the verdict, the judgment then orders that such imprisonment be commuted to a like term in the intermediate reformatory. But the statute delimiting the class of persons who may be sentenced to the latter institution, Sec. 216,370(2), RSMo 1955 Supplement, and V.A.M.S.; Laws 1955, p. 336, 1 specifically excludes those otherwise eligible persons whose offense is one 'for which capital punishment is provided.' Sec. 559.260 () provides capital punishment, in the discretion of the jury, for the crime of rape, so it is apparent that the purported commutation was unauthorized and contrary to law, and void on its face, it having been entered as a part of a judgment of conviction for rape. If the conviction is otherwise impervious to the attacks made upon it, the correct sentence, as originally pronounced, can be given effect by ordering the abortive commutation deleted, or the defect remedied under the provisions of Rule 28.15 relating to the correction on appeal of judgments erroneous as to time or place of imprisonment.
We note further that the judgment specifies the date on which the sentence imposed is to start, to-wit, 'from January 21, 1956.' This was the date on which the sentence was pronounced. Nevertheless, such a provision has no proper place or office as a part of a judgment and sentence, and is always to be regarded as surplusage, except in fixing the date of execution in capital cases. 'From a review of the statutes and authorities cited, we are of the opinion that any part of a judgment of record which shows a sentence is to start at a date prior to the date of sentence (or the fixing of any date) is surplusage.' (Emphasis supplied.) Higlin v. Kaiser, 352 Mo. 796, 798, 179 S.W.2d 471, 472. In other words, as said in Jackson v. Kaiser, 353 Mo. 919, 185 S.W.2d 784, 785, 788 (citing the Higlin case), 'The law and not the judgment fixes the date on which a term of imprisonment shall commence.' The practice of specifying a date of commencement should not be permitted to persist.
The judgment and sentence is followed by an entry showing the filing of an 'Affidavit for Appeal and Notice of Appeal,' and that 'the court after considering the case grants an appeal to the Supreme Court.' Rule 28.03 superseded the former statute, Sec. 547.070, and substituted the notice of appeal procedure under the Civil Code as the governing method for invoking this court's appellate jurisdiction. The notice of appeal contemplated by it and Sec. 512.070 is not one to be given by the circuit clerk, as in this case, but rather one signed by the party appealing or his attorney. Notification of the filing thereof is to be given by the clerk of the trial court by mailing, via registered mail, a copy of such notice to the prosecuting attorney, and in felony cases an additional copy to the attorney general, as well as one to the clerk of the court to which the appeal is taken. 'The clerk shall note in a memorandum filed in the cause the names of the parties to whom he mails the copies, with date of mailing.' Sec. 512.070.
The so-called 'notice of appeal' set forth in the transcript reads as follows:
'To Honorable John M. Dalton, Attorney General Within and for the State of Missouri:----
'You are hereby given notice to the extent that the above mentioned defendant, Hubert Leroy Amsden, has been granted an appeal to the Supreme Court of the State of Missouri from a conviction and sentence for a felony in the Circuit Court of Reynolds County, Missouri; the name of said appellant is Hubert Leroy Amsden, the nature of the crime for which he was convicted and sentenced was that of rape, the substance of the judgment and sentence was for two (2) years in the Missouri State Penitentiary, the date of the order granting the appeal was February 21st, 1956 and the attorney for the defendant is Honorable J. Ben Searcy whose address is Eminence, Missouri.
'Witness my hand the seal of the Circuit Court of Reynolds County, Missouri this 21st day of February, 1956.
'Reynolds County, Missouri.'
There is nothing in the record to show that a copy of the notice was ever served, and, as above pointed out, the rule does not contemplate that a notice of appeal is to be signed by the circuit clerk. However, this notice does specify the party attempting to appeal, designates somewhat imperfectly the judgment appealed from, and names the court to which it is sought to appeal. On the authority of State v. Grant, Mo., 275 S.W.2d 332, we will treat it as a bona fide attempt to comply with the governing rule. This result follows notwithstanding our disapproval of the form. It is not amiss to remind that an officially approved form of notice of appeal (together with directions to the clerk for the proper use thereof) promulgated by this court as Form No. 8 appears in RSMo 1949 at page 4157, and 42 V.A.M.S., pp. 168-169, the use of which would eliminate uncertainties such as here encountered.
Under Rule 3.26, it was beyond the authority of the trial court to extend the time for filing the transcript for a longer period than six months from the date of the filing of the notice of appeal, as attempted by the court's order of August 14. The filing of the transcript was, therefore, substantially a month out of time, but the respondent did not move for dismissal or affirmance, as it might have done when, upon the expiration of the aforesaid six months' period, the appeal had not been perfected. In view of the particular circumstances of this case, we will treat the transcript as having been filed by leave of this court under Rule 1.30, as was also done in State v. Grant, supra. See, also, Prudot v. Stevens, Mo.App., 266 S.W.2d 756; Dunlap v. Donnell, Mo.App., 234 S.W.2d 330.
Sec. 512.110 contemplates and provides that the original transcript is to be filed in the appellate court, and a 'copy' thereof filed with the clerk of the trial court, 'which copy shall remain on file in the office of said clerk.' The transcript before us is a carbon copy, and not the original, and filing thereof should have been refused when tendered here.
Turning now to the merits of the case, it may be observed that prosecutrix, Delores, is defendant's first cousin. At the time of the alleged offense Delores lacked 19 days of being 17 years of age. Defendant testified he was 18 at the time of the trial. No question arises at to the fact of sexual intercourse between these principals at the time and place in question. The theory of the state, which its evidence tends to support, was that defendant accomplished the act forcibly and against the will of prosecutrix, whereas the defense was that it was done with her full consent.
The prosecutrix lived on Sinking Creek between Fred Barber's Store and Corridon in Reynolds County. We infer defendant lived at the home of his mother (the aunt of prosecutrix) which was adjacent to the Fred Barber Store. There were also two daughters in the Amsden household. The state's evidence tended to show the following: Delores had gone to her aunt's at about 2 o'clock on the afternoon in question (July 2, 1955), and had visited with her aunt and defendant's two sisters, the youngest of whom accompanied Delores to the Barber Store to buy a soda. There they found that the proprietor and defendant were in readiness to deliver some gas to a Mr. Middleton, and the two girls accompanied them, riding in the back of the pickup truck. Upon...
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...in the exercise of our discretion, we should treat the transcript as having been filed by leave of court under Rule 83.26. State v. Amsden, Mo., 299 S.W.2d 498, 502(7); City of Rolla v. Riden, Mo.App., 349 S.W.2d 255, 257(1-3). See Costello v. Goodwin, 240 Mo.App. 538, 210 S.W.2d 375, 377-3......
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...offense must also be elements of the greater offense." Hayes v. State, 501 S.W.2d 508, 511 (Mo.App.1973). See also State v. Amsden, 299 S.W.2d 498, 504 (Mo.1957). Thus "common form" second degree murder (§ 559.020) is not a lesser included offense of "first degree felony-murder" under § 559......
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...third degree not lesser included offense of unlawful use of weapon); State v. Smith, 592 S.W.2d 165, 166 (Mo. banc 1979); State v. Amsden, 299 S.W.2d 498, 504 (Mo.1957), discussed in O. Richardson, supra, Lesser Graded or Included Offenses, Mo.Bar CLE, Comments at 9. A lesser offense is not......
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