State v. Brookshire

• Decision Date: 09 March 1964
• Docket Number: No. 2,No. 49944,49944,2
• Citation: 377 S.W.2d 291
• Parties: STATE of Missouri, Respondent, v. W. A. BROOKSHIRE, Appellant
• Court: Missouri Supreme Court

Page 291

377 S.W.2d 291

STATE of Missouri, Respondent, v.W. A. BROOKSHIRE, Appellant.

No. 49944.

Supreme Court of Missouri, Division No. 2.

March 9, 1964.

Motion for Rehearing or to Transfer to Court En Banc Denied

April 13, 1964.

W. A. Brookshire, appellantpro se.

Thomas F. Eagleton, Atty. Gen., George W. Draper, II, Asst. Atty. Gen., Jefferson City, for respondent.

STOCKARD, Commissioner.

On January 8, 1962, this court affirmed the judgment whereby, after trial by jury, appellant was sentenced to imprisonment for a term of three years for manslaughter.State v. Brookshire, Mo., 353 S.W.2d 681.On July 13, 1962, appellant filed in the Circuit Court of Cole County a motion pursuant to Supreme Court Rule 27.26, V.A.M.R., to vacate that sentence and judgment, and he has now appealed from the judgment of that court overruling his motion.

The hearing on this appeal was set for January 16, 1964, but on January 15appellant filed in this court what he termed 'Appellant's Motion to Remand or in the Alternative to Permit an Amendment and to Permit a Hearing on Appellant's Motion.'In this document appellant made certain allegations, somewhat unrelated to the merits of the pending appeal, pertaining to an 'amended jurisdictional statement' prepared by him for use in an appeal to the United States Supreme Court.He also asserted that the trial judge had disqualified himself in all cases in which appellant was a party and had no 'jurisdiction' to rule on the motion filed pursuant to Rule 27.26, and for that reason 'this court does not have jurisdiction' of this appeal.He asserted that 'the proper order for this court to make would be to remand [this cause] to the Cole County Circuit Court.'However, he then states that 'time is of the essence,' and for that reason he prays that this court'make an order permitting the appellant to amend his motion by the amended jurisdictional statement prepared for the Supreme Court of the United States, and to extend the time for appellant to prepare and file a brief.'On January 16, this appeal was submitted to this court on the brief filed by the State of Missouri, and appellant was granted leave to file a brief within thirty days, which he has done.

The file in this case contains no order of disqualification of the trial judge, and there is no petition for disqualification.See Civil Rule 51.03, V.A.M.R.In any event, appellant waives any challenge to the qualification of the trial judge by his request that this court rule on this appeal.

No facts are set forth why the 'amended jurisdictional statement' is material to any issue presented by the motion, and as an appellate courtwe take the record as ruled on by the trial court.In addition, the disposition of this appeal, for the reasons subsequently set forth, makes any issue in respect to this proposed amendment of no merit.

On February 5, 1964, the Attorney General filed in this court a motion to dismiss this appeal on the ground that the cause is moot.Attached to the motion is a certified copy of an order of unconditional commutation executed by the Lieutenant Governor of Missouri, the then acting governor, dated October 22, 1963, wherein the above referred to sentence of three years was commuted 'to a term ending November 29, 1963.'A copy of this motion was sent to appellant, and he has filed a lengthy and argumentative motion to strike the motion of the Attorney General.Appellant's motion consists primarily of an attack on the motives of those who brought about the commutation of the three year sentence and a rambling narrative of his difficulties with prison officials during confinement.

This court has held that 'for the purpose of considering the moot character of a question before us' it has the 'power to notice facts outside the record.'State ex rel. Donnell v. Searcy, 347 Mo. 1052, 152 S.W.2d 8, 10;State ex rel. Myers v. Shinnick, Mo., 19 S.W.2d 676.There can be no question but that appellant has been unconditionally discharged from the above referred to three year sentence.He admits this in his motion to strike.He is not now and has not since November 29, 1963, been 'in custody under [that] sentence.'

Supreme Court Rule 27.26, V.A.M.R., in its parts material to this case, is as follows:

'A prisoner in custody under sentence and claiming a right to be released on the ground that such sentence was imposed in violation of the Constitution and laws of this State or the United States, or that the court imposing such sentence was without jurisdiction to do so, or that such sentence was in excess of the maximum sentence authorized by law or is otherwise subject to collateral attack, may file a motion at any time in the court which imposed such sentence to vacate, set aside or correct the same. * * *'

It thus appears that the relief authorized by the rule is limited to a 'prisoner in custody under...