State v. Ashworth

• Decision Date: 27 September 1940
• Docket Number: 36709
• Citation: 143 S.W.2d 279,346 Mo. 869
• Parties: The State, Defendant in Error, v. Oscar Ralph Ashworth, Plaintiff in Error
• Court: Missouri Supreme Court

143 S.W.2d 279

346 Mo. 869

The State, Defendant in Error, v. Oscar Ralph Ashworth, Plaintiff in Error

No. 36709

Supreme Court of Missouri

September 27, 1940

Appeal from Buchanan Circuit Court; Hon. Ferd J Frankenhoff, Judge.

Affirmed.

Abe Goldman, Leonard Johnson and Earl Borchers for plaintiff in error.

(1) The defendant was denied due process of law and equal protection of the laws, in contravention of the Fourteenth Amendment of the Constitution of the United States in that he was denied the right of counsel with the accustomed incidents of consultation. Cooley, Const. Limitations (8 Ed.), 1927, p 700; Cooke v. United States, 267 U.S. 537; Jackson v. Commonwealth, 215 Ky. 802; Sheppard v. State, 165 Ga. 464; Mitchell v Commonwealth, 225 Ky. 84; People v. Nitti, 312 Ill. 89; Sanchez v. State, 199 Ind. 246; Commonwealth v. L'Keefe, 298 Pa. 169; Moore v. Dempsey, 261 U.S. 89; Powell v. Alabama, 287 U.S. 59, 77 Law Ed. 165; State v. Jackson, 130 S.W.2d 596; State v. Guerringer, 265 Mo. 418, 178 S.W. 67; State v. Richardson, 46 S.W.2d 579. (2) The time between appointment of counsel and hearing was too short, in that defendant was denied the right of proper counsel. Dumas v. State, 16 P.2d 888. (3) The information was void because it did not conclude "against the peace and dignity of the State." Art. VI, Sec. 38, Mo. Const.; State v. Wade, 147 Mo. 73, 47 S.W. 1070; State v. Ulrich, 96 A. 689, 70 S.W. 933; State ex rel. Barrett v. Hitchcock, 146 S.W. 40; State v. Howard, 242 Mo. 432, 147 S.W. 95. (4) The information was not explicit enough to properly apprise defendant of the offense of which he was charged and the penalty thereof. State v. Rosegrant, 338 Mo. 1153, 93 S.W.2d 961; State v. Higgs, 325 Mo. 704, 29 S.W.2d 74; State v. McGee, 336 Mo. 1082, 83 S.W.2d 98; State v. Peck, 68 S.W.2d 701; State v. Gillman, 44 S.W.2d 146; State v. Pepe, 46 S.W.2d 862; State v. Sinovich, 46 S.W.2d 877; Secs. 4020, 4021, R. S. 1929. (5) The court did not inquire into the facts to ascertain if any legal reason existed against the execution of the sentence. Sec. 3721, R. S. 1929; Laws 1937, p. 222; State v. Broyles, 340 Mo. 962, 104 S.W.2d 270. (6) Under the information, the court exceeded its jurisdiction in sentencing defendant to death. State v. Gillman, 329 Mo. 306, 44 S.W.2d 146; State v. Kenyon, 126 S.W.2d 249. (7) The defendant had the right to be free from shackles during his arraignment and hearing of cause. 14 Amer. Juris. 132; State v. Temple, 194 Mo. 237, 92 S.W. 871; Blair v. Commonwealth, 171 Ky. 319, 188 S.W. 393. (8) The court did not admonish the defendant of the consequences of his plea of guilty. Commonwealth v. Bettis, 1 Mass. 95; Polk v. State, 224 P. 206; Porter v. State, 49 P.2d 238; 14 Amer. Juris., p. 951. (9) The court had jurisdiction to hear the writ of error coram nobis. Bivins v. McDonald, 177 S.E. 830; 46 C. J., p. 443; Nickels v. State, 98 So. 504; 3 Houts Mo. Pleading & Practice, p. 88.

Roy McKittrick, Attorney General, and Robert L. Hyder, Assistant Attorney General, for defendant in error.

(1) Plaintiff in error was properly represented by counsel. State v. Williams, 6 S.W.2d 915; State v. Terry, 201 Mo. 697, 100 S.W. 432. (2) Allocution under a plea of guilty is unnecessary. State v. Borchert, 279 S.W. 72, 312 Mo. 447; State v. Branson, 262 S.W. 365. (3) The judgment and sentence were proper and permissible for the crime committed. State v. Hamilton, 337 Mo. 460, 85 S.W.2d 35; State v. Hardy, 339 Mo. 987, 98 S.W.2d 593; State v. Rosegrant, 338 Mo. 1165; Sec. 4020, R. S. 1929; State v. Sublett, 4 S.W.2d 466. (4) The purported writ of error coram nobis is no part of the record herein and should not be considered by the court. Ex parte Thornberry, 300 Mo. 661, 254 S.W. 1087; Ex parte Cornwall, 223 Mo. 259, 122 S.W. 666; Ex parte United States, 242 U.S. 27; State v. Stanley, 225 Mo. 525, 120 S.W. 771; State ex rel. Orr v. Latshaw, 291 Mo. 592, 237 S.W. 770; Ex parte Dusenberg, 325 Mo. 881, 30 S.W.2d 94; State v. Sutton, 232 Mo. 244, 134 S.W. 663; State v. Barker, 294 Mo. 303, 242 S.W. 405; State v. Biesemeyer, 136 Mo.App. 668, 118 S.W. 1187. (5) The transcript of the proceeding in justice court is not a part of the record and should not be considered by the court. State v. McKinley, 111 S.W.2d 115.

OPINION

Leedy, J.

This is a capital case which, on account of diversity of opinion as to its proper disposition, came to the writer on reassignment at our last conference. Plaintiff in error, Oscar Ralph Ashworth, was charged by information in the Circuit Court of Buchanan County with the crime of kidnaping, as denounced by Sec. 4020, R. S. 1929 (Sec. 4020, Mo. Stat. Ann., p. 2827). Upon his plea of guilty, on formal arraignment, his punishment was assessed by the court at the extreme penalty. Sentence was pronounced and judgment entered accordingly, and he brings error. For convenience, the parties will be referred to as they were styled in the circuit court.

Preliminary to an examination of the merits, it becomes necessary to notice a question of appellate practice in reference to the matters presented for review by the transcript of the record as certified here in obedience to the command of our writ. Defendant was sentenced on September 1, 1938, which was during the May Term. He filed no motion for a new trial, but on November 4 following, sued out of this court a writ of error, which was returnable at our May, 1939, term. Notice of the issuance thereof was served on the State March 10, 1939. Thereafter, on April 10, 1939, at the January, 1939, term of the Buchanan Circuit Court, he went into that court and filed what is captioned as a "Writ of error coram nobis," the prayer of which was that "the court allow him to withdraw his plea of guilty" for the reasons therein assigned. This was denied for the reason, among others, that the trial court was without jurisdiction because defendant had theretofore sued out his writ of error. Whereupon defendant filed a motion for new trial or rehearing as to the proceedings by error coram nobis, which was overruled, and he appealed, not from the judgment denying his application for error coram nobis, or motion in the nature thereof, but "from the judgment, order and decision of the court overruling defendant's motion for new trial as to defendant's motion for writ of error coram nobis." (Italics ours.)

The foregoing appears from the transcript which was filed here April 26, 1939. The cause was docketed for hearing at the September Term, 1939, but on July 8 the Attorney General filed suggestion of diminution of record, alleging that the following further proceedings, not shown by the transcript, were had, to-wit:

"Be it remembered That, on the 1st day of September, A. D. 1938 the same being a day of the regular May, 1938, Term of the aforesaid Circuit Court, the above entitled cause coming on regularly for hearing before Hon. Ferd J. Frankenhoff, Judge of Division No. 3 of the aforesaid Circuit Court, the following proceedings were had and done therein.

"Mr. Maurice F. Hoffman, Prosecuting Attorney for Buchanan County, Missouri, and Messrs. Orville Powell and Ernest Binnicker, Assistants, appeared for and on behalf of the State.

"Judge Joseph A. Sherman appeared for and on behalf of the Defendant. . . .

"The Court: Stand up, Mr. Ashworth. Read the information to Mr. Ashworth.

"Thereupon Mr. Powell read to the defendant the information.

" The Court: What is your plea, Mr. Ashworth, guilty or not guilty?

"The Defendant: Guilty.

"The Court: Any statement, Judge Sherman?

"Judge Sherman -- Just this -- I am not here to defend this man for this crime he has committed here. Nine years ago, when I was admitted to the bar, I took an oath that whenever called upon by the court to represent any person or perform any duty for the court, I would do it. I have been appointed by this court to advise this man of his legal right of which I am acquainted that he might use in his behalf. After having done so, he informs me of his desire to enter a plea of guilty to this crime. I have informed him that the punishment which might be assessed ranges from five years to life, or death in the lethal gas chamber.

"The Court: Mr. Powell, have you any statement?

"Mr. Powell: We have no statement to make.

"The Court: Mr. Ashworth, have you some statement to make at the time?

"The Defendant: I have suffered more from this crime than I ever did from anything, and all I can do is just beg the court for mercy.

"The Court: Have you ever been in trouble before?

"The Defendant: Yes sir.

"The Court: Where?

"The Defendant: Jefferson City and Nebraska.

"The Court: Were you confined to the penitentiary in Jefferson City, Missouri?

"The Defendant: Yes, sir.

"The Court: For what offense?

"The Defendant: Stealing a hog.

"The Court: In what county did this occur?

"The Defendant: Atchison County.

"The Court: What year was that?

"The Defendant: 1920.

"The Court: How old are you now?

"The Defendant: 37.

"The Court: Then what was your next trouble?

"The Defendant: Nebraska City.

"The Court: Nebraska City, Nebraska?

"The Defendant: Yes, sir.

"The Court: What was the nature of that offense?

"The Defendant: Rape.

"The Court: What was the punishment?

"The Defendant: 10 years.

"The Court: What was the age of the prosecuting witness, that is, the girl?

"The Defendant: Well, I just don't remember now.

"The Court: Well, about?

"The Defendant: 12 or 13.

"The Court: Any other trouble?

"The Defendant: No, sir.

"The Court: No other convictions anywhere in the years?

"The Defendant: No, sir, no other convictions.

"The Court: Are you married?

"The Defendant: I am married, got three little children.

"The Court: How...