State v. Caffey

• Decision Date: 12 March 1969
• Docket Number: No. 53403,No. 1,53403,1
• Citation: 438 S.W.2d 167
• Parties: STATE of Missouri, Respondent, v. Jack Virgil CAFFEY, Appellant
• Court: Missouri Supreme Court

Page 167

438 S.W.2d 167

STATE of Missouri, Respondent, v. Jack Virgil CAFFEY, Appellant.

No. 53403.

Supreme Court of Missouri, Division No. 1.

March 12, 1969.

Norman H. Anderson, Atty. Gen., Jefferson City, Norman Humphrey, Jr., Sp. Asst. Atty. Gen., Independence, for respondent.

HOUSER, Commissioner.

Jack Virgil Caffey was convicted of stealing property of a value of at least $50 ($175 in currency), §§ 560.156 and 560.161, RSMo 1959, V.A.M.S., and sentenced to the maximum punishment for that offense, 10 years' imprisonment.

On this appeal he denies the jurisdiction of the circuit court to try him, claiming the right to discharge on the ground that the magistrate court deprived him of his constitutional right to a speedy trial, due process of law and an effective appointment of counsel ¹ and that the state was guilty of laches in bringing him to trial. ² These complaints were embodied in a motion to dismiss the charge and a motion to bar further prosecution, both of which were filed in circuit court, heard and overruled prior to the trial of the charge of stealing.

Caffey, who was serving a penitentiary sentence on another charge, see State v. Caffey, Mo.Sup., 404 S.W.2d 171, was released from confinement under a habeas corpus proceeding instituted by the prosecuting attorney of Randolph County and brought before the magistrate judge of that county on July 18, 1966 to answer the complaint charging him with stealing over $50. The complaint was read to him. He pleaded not guilty, requested the appointment of counsel and asked that he be given an immediate preliminary hearing on the charge. The magistrate informed Caffey that an attorney would be appointed and Caffey was remanded to the jail. Next day the magistrate made an order of record appoint Austin Walden as attorney for Caffey, but it appears that neither Walden nor Caffey was informed of the appointment for approximately ten months (sometime in May, 1967). On July 19, 1966, without notice to or consent by Caffey, the magistrate judge continued the case to May 23, 1967. Between these dates Caffey was incarcerated in the Randolph County jail. From July 18, 1966 to May 3, 1967 Caffey made no formal request of court or prosecuting attorney for a preliminary hearing and as far as this record shows took no affirmative steps to obtain relief until May 3, 1967, when he wrote a letter to the magistrate, reciting the history of his case, telling of his plight, stating his belief that under Rules 22 and 23, the '180 day' law and the state and federal constitutions he had been deprived of various rights, including the right to be brought to trial, without due process of law and without regard for his right to a speedy trial. He asked that the letter be considered as a petition for a writ of habeas corpus; that the state be barred from prosecuting him further and that he be returned to the department of corrections to complete the 6-year sentence he was serving when brought before the magistrate court on July 18, 1966.

Having received no answer Caffey wrote the circuit judge a letter on May 15, 1967, enclosing a copy of the letter of May 3, and requesting the circuit court to consider the facts therein and grant him a prompt hearing on this petition for a writ of habeas corpus. Immediately thereafter and on May 16, 1967 Caffey was taken to the magistrate court. There for the first time Caffey conferred with his attorney, Mr. Walden, who told him that he would look into his case. Caffey was returned to jail. A week later, having heard nothing further, Caffey wrote Mr. Walden asking him to withdraw as his attorney for the reason that Caffey 'thought that this might be leading to another continuance and (he) didn't desire that.'

On May 23, 1967 Caffey was again taken before the magistrate court. The docket entry that day follows: 'Defendant appeared in person. His attorney, Honorable Austin Walden, was unable to appear at this hearing. Defendant requested an immediate hearing and strongly objected to any continuance. Cause continued pending agreement between state's attorney and defendant. Austin Walden asks leave to withdraw from the case.' After Mr. Walden withdrew Senator Richard J. Chamier was appointed to represent Caffey.

The preliminary examination was held on June 14, 1967. After the hearing commenced Caffey and his counsel had a disagreement and the senator asked for and was granted permission to withdraw. Caffey thereupon waived any right to the services of an attorney and on his own behalf objected to the jurisdiction of the court on the ground of lack of prosecution. At the conclusion of the hearing Caffey was bound over to answer the charge in circuit court.

On July 5, 1967 Marion Lamb was appointed as his attorney and he represented Caffey in the presentation of the pretrial motions in circuit court, at the trial and on this appeal, circumscribed by Caffey's insistence that he not put on any defense at the trial other than that of lack of jurisdiction. The case was tried in circuit court on October 10, 1967.

On this appeal Caffey does not contend that the circuit court committed any error in the trial of the charge of stealing. His complaints are limited to the question of the jurisdiction of the circuit court to try the case.

The first question is whether the failure to effectively appoint counsel, and the nearly 11-month delay in according him a preliminary examination, violated his right to a speedy trial and denied him due process of law under the constitutional provisions relied upon, ³ as a result of which the courts were divested of jurisdiction, thereby requiring reversal of the judgment of conviction and discharge of the accused.

The constitutional right to a speedy trial has no application until a criminal prosecution is commenced. The constitutional provisions invoked contemplate a pending charge and not merely a pending complaint, which represents a mere possibility that a criminal charge will bew filed. Felonies are prosecuted by indictment or information. Between commitment on July 18, 1966 and preliminary examination on June 14, 1967 there was no criminal prosecution--no criminal charge--no indictment or information charging Caffey with stealing. His constitutional right to a speedy trial commenced on July 5, 1967, the date of the filing of the information in this case. Parker v. United States, 6 Cir., 252 F.2d 680, cert. denied 356 U.S. 964, 78 S.Ct. 1003, 2 L.Ed.2d 1071; People v. Jordan, 45 Cal.2d 697, 290 P.2d 484; Rupley v. Johnson, 120 Cal.App.2d 548, 261 P.2d 318; People v. Wilson, 10 A.D.2d 297, 200 N.Y.S.2d 792; People v. Aguirre, 181 Cal.App.2d 577, 5 Cal.Rptr. 477; State v. Burrell, 102 Ariz. 136, 426 P.2d 633(1); Bruce v. United States, 5 Cir., 351 F.2d 318; Reddick v. State, 219 Md. 95, 148 A.2d 384, cert. denied Reddick v. State of Maryland, 360 U.S. 930, 79 S.Ct. 1448, 3 L.Ed.2d 1544; 21 Am.Jur.2d Crim. Law § 248; 22A C.J.S. Criminal Law § 474. Caffey's constitutional right to a speedy trial was not violated. State v. Maldonado, 92 Ariz. 70, 373 P.2d 583, 585, 586.

There is no contention that the delay from July 5, 1967 to the date of trial, October 11, 1967, violated Caffey's constitutional right to a speedy trial. (Apparently during that period Caffey was remanded to the penitentiary.)

On this record it is clear that Caffey was denied the right to an immediate preliminary examination ⁴ and the right not to have the examination continued for more than ten days at one time. ⁵ His incarceration for nearly 11 months before according him an examination which the rule requires be conducted 'as soon as possible' was illegal but an irregularity only, and not such as to deprive the magistrate court of jurisdiction over the person of the accused or of the subject matter, or to deprive the trial court of jurisdiction to try the accused. 22 C.J.S. Criminal Law § 335, p. 865.

Criminal Rule 23.06, authorizing the postponement of the preliminary examination from time to time, not to exceed ten days at one time, is designed to prevent undue delays. Its purpose is to insure as speedy a hearing as practical under the circumstances. It recognizes, however, that there may be circumstances in which the examination cannot properly be held within ten days, and refers to adjournments for cause. Although the unauthorized and illegal act of the magistrate in continuing the examination from July 19 to May 23 destroys any presumption of regularity or that the continuance was for cause, it was not jurisdictional; it did not divest the magistrate court of jurisdiction. It was a procedural irregularity which, although of a serious nature, was capable of being waived, and under the circumstances of this case was waived by Caffey not making timely complaint to the magistrate. Smith v. Kozak, Del.Super., 196 A.2d 821(2, 3).

The delay did not deprive the circuit court of jurisdiction and thereby invalidate the conviction. The preliminary examination, and all matters leading up to it, including unnecessary delay and adjournments for more than ten days at one time, are procedural matters which amount to irregularities but do not go to the jurisdiction of the court. Even the absence of a preliminary examination 'does not ipso facto deprive the circuit court of jurisdiction.' Lambus v. Kaiser, 352 Mo. 122, 176 S.W.2d 494, 497, quoted with approval in State v. Keeble, Mo.Sup., 399 S.W.2d 118, 121. We approved this principle of Keeble as late as State v. Maloney, Mo.Sup., 434 S.W.2d 487, 496(12). The jurisdiction of the circuit court to try the charge of stealing was acquired on July 5, 1967 by the filing of the information. The time lapse between July 5 and the date of trial, October 11, is not suggested as sufficient delay to effect a discontinuance of the action.

'As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a...