State v. Borchert

• Citation: 279 S.W. 72
• Parties: STATE v. BORCHERT.
• Decision Date: 22 December 1925
• Court: United States State Supreme Court of Missouri

279 S.W. 72

STATE v. BORCHERT.

Supreme Court of Missouri, Division No. 2.

December 22, 1925.

Motion for Rehearing Denied January 6, 1926.

Error to Circuit Court, Jackson County; Thad. B. Landon, Judge.

Clyde M. Borchert pleaded guilty to the crime of rape, and was sentenced to the penitentiary for life. Writ of error was issued requiring the circuit court to send to the Supreme Court a certified copy of the record and proceeding. Judgment affirmed.

Ira B. McLaughlin and P. H. Jackson, both of Kansas City, for plaintiff in error.

Robert W. Otto, Atty. Gen., and J. Henry Caruthers, Asst. Atty. Gen., for the State.

Statement.

BAILEY, C.

On August 25, 1924, the assistant prosecuting attorney of Jackson county, Mo., filed in the circuit court of said county a verified information, which, without caption and jurat, reads as follows:

"Now comes Charles W. Brady, assistant prosecuting attorney, for the state of Missouri, in and for the body of the county of Jackson, and upon his oath informs the court that Clyde M. Borchert, whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, on the 24th day of August, 1924, at the county of Jackson, state of Missouri, in and upon one Vallie Borchert, a female child under the age of 16 years, to wit, of the age of 8 years, unlawfully and feloniously did make an assault and her, the said Value Borchert, then and there unlawfully and feloniously did carnally know and abuse, against the peace and dignity of the state.

                                             "Charles W. Brady
                                "Assistant Prosecuting Attorney."
                

On the said 25th day of August, 1924, the record of the circuit court aforesaid, recites the following:

"Now comes the prosecuting attorney, comes also the defendant, Clyde M. Borchert, in person and by his attorney, Edw. Doerr, and, after consulting with his attorney and friends, for his plea says he is guilty of rape, and the court fixes the punishment of said defendant at a term of and for and during his natural life in the penitentiary of the state of Missouri.

"It is therefore considered and adjudged by the court that said defendant, Clyde M. Borchert, do undergo confinement in the penitentiary of the state of Missouri, for and during his natural life, for said offense of rape; that the state of Missouri have and recover of and from said defendant all costs herein, and that execution issue therefor, and the court further orders that said defendant be remanded to the custody of the marshal of Jackson county, and that said marshal deliver said defendant into the custody of the proper officer in charge of said penitentiary, therein to he confined as aforesaid."

On August 22, 1925, a writ of error was issued by this court to the circuit court aforesaid requiring the latter to send to this court a certified copy of the record and proceedings in the above case of State of Missouri v. Clyde M. Borchert. On September 14, 1925, the clerk of the Jackson circuit court filed in this court, as a return to said writ of error, a certified copy of the record and judgment aforesaid; there being no other proceedings of record in said cause. Timely notice of the issuing of said writ of error was served on the Attorney General on September 14, 1925.

The questions presented to the court will be considered in the opinion.

Opinion.

I. The judgment of the trial court bears date of August 25, 1924. The writ of error was issued in this case on August 22, 1925. It does not appear from the record where defendant was located during the intervening time, but, in the absence of evidence to the contrary, it will be presumed, that he is in the penitentiary, pursuant to the judgment and sentence of the court below. While the suing out of a writ of error has been held in this state to be the commencement of a new suit,, yet, when issued, it brings before this court for review the matters which might have been, brought here by appeal. Macklin v. Allenberg, 100 Mo. loc. cit. 344, 13 S. W. 350; Ring v. Railway Co., 112 Mo. loc. cit. 227, 20 S. W. 436; Thornbrugh et al. v. Hall et al. (Mo. Sup.) 263 S. W. loc. cit. 147.

II. It may be conceded for the purposes of the argument that defendant can take advantage of any material defect in the record below, although it is raised here for the first time. State v. Levy, 119 Mo. loc. cit. 437, 24 S. W. 1026, and cases cited; State v. Kelley, 206 Mo. loc. cit. 693, 105 S. W. 606, 12 Ann. Cas. 681; State v. Henschel, 250 Mo. loc. cit. 269, 157 S. W. 311; State v. Reppley, 278 Mo. loc. cit. 338, 213 S. W. 477; State v. Pearson, 288 Mo. loc. cit. 105, 106, 231 S. W. 595.

III. The record of the circuit court, in respect to those matters recited therein, imports absolute verity, and cannot be contradicted by matters dehors the record. State v. Whalen, 297 Mo. loc. cit. 247, 248 S. W. 931, and cases cited; Fitzgerald v. De Soto Special, Rd. Dist. (Mo. Sup.) 195 S. W. loc. cit. 696, 697; Stimson v. Mining & Smelting Co., 264 Mo. loc. cit. 205, 174 S. W. 420; Atkinson v. Railway Co., 81 Mo. loc. cit. 54.

The judgment below affirmatively recites that:

"Now comes the prosecuting attorney, comes also the defendant, Clyde M. Borchert, in person and by his attorney, Edw. Doerr, and, after consulting with his attorney and friends, for his plea says he is guilty of rape," etc.

Section 3682a, R. S. 1919, as amended in the Laws of 1923, at page 159, provides that:

"Any judge, who shall accept of any plea of guilty without first giving the person charged with an offense an opportunity and reasonable time to talk with a friend and an attorney, shall be deemed guilty of a misdemeanor, and on conviction shall be punished by a fine of not exceeding one hundred dollars, or by imprisonment in the county jail not exceeding three months, or by both such fine and imprisonment; and in addition, shall forfeit his said office."

The recitals in the judgment, supra, comply with above law, and must be taken as true in this proceeding.

IV. The information heretofore set out informed the defendant as to the charge against him, and fully meets the requirements of the law. Section 3247, R. S. 1919, as amended in the Laws of 1921, p. 284a; State v. Turner (Mo. Sup.) 274 S. W. 35; State v. Hutchens (Mo. Sup.) 271 S. W. loc. cit. 526, 527; State v. Ansel (Mo. Sup.) 256 S. W. 762; State v. George, 221 Mo. loc. cit. 520, 521, 120 S. W. 35.

V. It is contended by defendant that the judgment aforesaid should be reversed, because the record "does not show a formal arraignment," although it affirmatively shows:

That both defendant and prosecuting attorney were before the court, and that defendant, "after consulting with his attorney and friends, for his plea says he is guilty of rape, and the court fixes the punishment of said defendant at a term of and for and during his natural life in the penitentiary of the state of Missouri."

In other words, it is claimed that the words "defendant is arraigned and" should have preceded the above-quoted part of the judgment.

We have not been cited, however, to a decision of this court, or any other court, which has held that a formal entry of arraignment was necessary on a plea of guilty, under such circumstances as are disclosed by this record. We shall not undertake to review or reconcile the cases in this state dealing with jury trials in which the records fail to contain a formal entry of arraignment, or waiver of arraignment. Those who are inquisitive as to the law on this subject may find an exhaustive and luminous discussion of same by an examination of the following cases cited in defendant's brief, to wit: State v. O'Kelley and. Fitch, 258 Mo. 345, 167 S. W. 980, 52 L. R. A. (N. S.) 1063; State v. Gould, 261 Mo. 694, 170 S. W. 868, Ann. Cas. 1916E, 855; State v. Allen, 267 Mo. 49, 183 S. W. 329; State v. Jennings, 278 Mo. 544, 213 S. W. 421; State v. Miscall, 284 Mo. 607, 226 S. W. 18; State v. Roberts, 294 Mo. loc. cit. 302, 242 S. W. 669; State v. Loesch (Mo. Sup.) 180 S. W. 875. See, also, Garland v. State of Washington, 232 U. S. 642, 34 S. Ct. 456, 58 L. Ed. 772, overruling Crain v. United States, 162 U. S. 625, 16 S. Ct. 952, 40 L. Ed. 1097, followed by the earlier Missouri cases. From an examination of the above and kindred cases, we conclude that the earlier decisions of this court relating to arraignment in criminal cases have been somewhat modified, and that we are now holding that no formal arraignment is necessary where the record shows defendant announced ready and went to trial.

In considering the necessity of the record to show a formal arraignment, Judge Walker, speaking for this division in State v. Hascall, 284 Mo. loc. cit. 618, 226 S. W. 18, 21, said:

"We have no hesitancy in saying, as we said in the O'Kelley Case [258 Mo. 345, 167 S. W. 980, 52 L. R. A. (N. S.) 1063], that this contention, in view of the language and evident purpose of the statute (section 5165, R. S. 1909), is `a bald technicality and without merit.'" (Italics ours.)

In considering this subject, Faris, P. J., in State v. Allen, 267 Mo. loc. cit. 55, 183 S. W. 329, 331, said:

"Defendant by his learned counsel contends that, inasmuch as the record fails to disclose either an arraignment or a plea, he is for this entitled to a reversal out of hand. The record also shows that no objection was lodged anywhere touching the lack of an arraignment and plea till the case got here, and that defendant was tried in all respects just as if a formal arraignment and plea had been had, as they doubtless were, if we were permitted, as we are not, to speculate upon facts on which the record is silent.

"Defendant's learned counsel concede that the cases of State v. O'Kelley, 258 Mo. 345 [137 S. W. 989, 52 L. R. A. (N. S.) 1063] and State v. Gould, 261 Mo. 694 [170 S. W. 868, Ann. Cas. 1916E, 855], are against this contention, but they...