State v. Childers
| Decision Date | 12 October 1959 |
| Docket Number | No. 47332,No. 1,47332,1 |
| Parties | STATE of Missouri, Respondent, v. William CHILDERS, Appellant |
| Court | Missouri Supreme Court |
No attorney for appellant.
John M. Dalton, Atty. Gen., James E. Conway, Asst. Atty. Gen., for respondent.
HOLMAN, Commissioner.
Defendant, a prisoner in the Missouri State Penitentiary, has appealed from the order and judgment of the Circuit Court of the City of St. Louis overruling his motion to vacate a prior judgment of that court wherein he was adjudged guilty of robbery in the first degree and sentenced to imprisonment in the penitentiary for a term of 15 years. Defendant's conviction was affirmed upon appeal by an opinion of this court adopted June 9, 1958. State v. Childers, Mo.Sup., 313 S.W.2d 728. Shortly thereafter the instant pleading was filed in the circuit court. It is entitled 'Petition for the Writ of Error Coram Nobis.' However, in the body of the petition and in the prayer, the defendant repeatedly refers to the power of the court to vacate the judgment under the provisions of Supreme Court Rule 27.26, 42 V.A.M.S., and the relief sought is based upon that rule. We will accordingly consider the petition as a motion filed pursuant to Rule 27.26. State v. Campbell, Mo.Sup., 307 S.W.2d 486.
Respondent has filed a motion to dismiss the appeal for the reason that the notice of appeal was not timely filed. The judgment appealed from was entered on October 27, 1958, and the notice of appeal was filed on December 19, 1958. However, respondent was apparently not advised of the fact that the notice of appeal was filed in accordance with leave granted by this court in a special order of appeal. The motion to dismiss is therefore overruled.
The relief sought by the instant motion is based solely upon allegations of error in regard to the instructions given in the trial. Specifically, it is alleged that the instructions did not require the jury to find all of the essential elements of the crime.
The trial court overruled the defendant's motion without granting a hearing thereon. No error was committed in that regard because the motion, on its face, disclosed that no claim for relief was stated therein. In that situation a hearing is not required. State v. Ninemires, Mo.Sup., 306 S.W.2d 527.
We recently stated that State v. Cerny, 365 Mo. 732, 286 S.W.2d 804, 806. We have also said that 'A motion under Rule 27.26 may not be used as a substitute for a motion for new trial (State v. Cerny, Mo.Sup., 286 S.W.2d 804) nor function as an appeal.' State v. Hagedorn, Mo.Sup., 305 S.W.2d 700, 702.
The contention in defendant's motion that the instructions were incomplete and inadequate obviously relates to trial errors. If defendant desired a review of the sufficiency of the instructions he should have made proper complaint regarding same in his motion for new trial, in which event we would have decided his contentions when the case was here on appeal from the original judgment of conviction. Rule 27.26 does not afford a basis for the review of trial errors of the nature alleged in the...
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Goodwin v. Swenson, 1079.
...States cases. Examples of such cases in addition to this case and State v. Turner are the frequently cited cases of State v. Childers, Mo.Sup. Div. 1, 1959, 328 S.W.2d 43; State v. Worley, Mo.Sup.Div. 1, 1963, 371 S.W. 2d 221; State v. Franklin, Mo.Sup.Div. 2, 1964, 379 S.W.2d 526; State v.......
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State v. Keeble, 51315
...such matters. State v. Worley, Mo., 371 S.W.2d 221; State v. Howard, Mo., 383 S.W.2d 701; State v. King, Mo., 380 S.W.2d 370; State v. Childers, Mo., 328 S.W.2d 43; see also, Frand v. United States (CA 10), 301 F.2d 102; Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787, cert. de......
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State v. McDonald
...Mo., 317 S.W.2d 365; State v. Kitchin, Mo., 300 S.W.2d 420, certiorari denied 354 U.S. 914, 77 S.Ct. 1299, 1 L.Ed.2d 1429; State v. Childers, Mo., 328 S.W.2d 43. The judgment and sentence here recite: that defendant was informed of his right to counsel and of the Court's willingness to appo......
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State v. Thompson
...705, 709; Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787, 789; Sheridan v. United States (CA 5), 264 F.2d 236; State v. Childers, Mo., 328 S.W.2d 43; State v. Rutledge, Mo., 317 S.W.2d 365. We have said in the past that proceedings under Rule 27.26 are not to be used or consid......