State v. Cox
| Decision Date | 12 July 1965 |
| Docket Number | No. 51060,No. 1,51060,1 |
| Citation | 392 S.W.2d 265 |
| Parties | STATE of Missouri, Respondent, v. John Allen COX, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Thomas E. Eichhorst, Asst. Atty. Gen., Jefferson City, for respondent.
No brief filed for appellant.
Motion to vacate judgment and sentence under Rule 27.26, overruled by the court and defendant has appealed. Defendant was tried on a charge of murder in the first degree but was convicted of second degree murder and sentenced to 20 years' imprisonment, which was affirmed on appeal. State v. Cox, Mo.Sup., 352 S.W.2d 665.
Defendant's motion raised two points: (1) Error in failure to call a panel of 47 jurors, citing Sec. 546.180, RSMo V.A.M.S.; (2) Error in trying and sentencing him under the Habitual Criminal Statute, Sec. 556.280, RSMo V.A.M.S.
As to the first, defendant relies on State v. Kinne, Mo.Sup., 372 S.W.2d 62. Sec. 546.180 does require a panel of 47 jurors in the City of St. Louis, where defendant was tried: 'If the offense charged is punishable by death, or by imprisonment in the penitentiary not less than for life.' However, in the Kinne case a panel of less than 47 jurors was called 'over the appellant's objection.' In this case, the transcript on appeal from the judgment and sentence shows no objection to a panel of 40 jurors, which the court found was used. Failure to object was held to be a waiver of a right to a larger panel in State v. Nichols, Mo.Sup., 165 S.W.2d 674, 675, citing the earlier case of State v. Bell, 166 Mo. 106, 109, 65 S.W. 736, 737, which held: '[T]he matter of failing to provide a complete general panel before calling on a party defendant to make his challenges, is a matter of exception, pure and simple.' Therefore, this is not a matter that can be raised on a Rule 27.26, V.A.M.R. motion. We also note there was no claim of error concerning the panel made in the motion for new trial in the original case or in the briefs on appeal. Defendant was represented by able counsel both at the trial and on appeal.
On his second point, defendant relies on State v. Gordon, Mo.Sup., 344 S.W.2d 69, which held the Habitual Criminal Statute was not applicable where the State for a former conviction relied on a case in the U. S. District Court which after a plea of guilty 'adjudged that imposition of sentence upon defendant be and hereby is suspended and defendant placed on probation for a period of two (2) years in accordance with conditions filed herein.' We pointed out that Sec. 556.280 'expressly provides that, as a condition for invoking the provision whereby the trial court shall determine the punishment, the defendant, as to the prior...
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State v. Francis, KCD
...exception 'pure and simple' and not of jurisdiction. See also: State v. Donnell, 387 S.W.2d 508, 514(10, 11) (Mo.1965); State v. Cox, 392 S.W.2d 265--266(1) (Mo.1965); State v. Thomas, 433 S.W.2d 537, 540(5) (Mo.1968); State v. Turnbough, 498 S.W.2d 567, 570(1) (Mo.1973); and, State v. Thom......
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Wilwording v. State, 53784
...which may not be urged under the present request for post-conviction relief under Rule 27.26, and will not be considered. State v. Cox, Mo., 392 S.W.2d 265, 266; State v. Donnell, Mo., 387 S.W.2d 508, 514(10, 11); and State v. Warren, Mo., 406 S.W.2d 605, The word 'submission' used in said ......
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State v. Warren
...identical point under essentially the same facts was raised by a Rule 27.26 motion and ruled adversely to the defendant in State v. Cox, Mo., 392 S.W.2d 265, 266(1). The decision in that case controls the result in The orders overruling defendant's motions in cases numbered 51,670 and 51,75......