State v. Euge, 31058

• Decision Date: 15 May 1962
• Docket Number: No. 31058,31058
• Court: Missouri Court of Appeals
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Harvey F. EUGE, Defendant-Appellant.

Page 369

359 S.W.2d 369

STATE of Missouri, Plaintiff-Respondent, v. Harvey F. EUGE, Defendant-Appellant.

No. 31058.

St. Louis Court of Appeals, Missouri.

May 15, 1962.

Motion for Rehearing or Transfer Denied Sept. 11, 1962.

Harvey F. Euge pro se.

Norman H. Anderson, Pros. Atty., Daniel O'Brien, Asst. Pros. Atty., Clayton, for respondent.

BRADY, Commissioner.

Defendant was found guilty of issuing an insufficient funds check (Sec. 561.460, RSMo 1959, V.A.M.S.) and his punishment was fixed by the jury at a fine of $1,000.00 and costs. His appeal was submitted during our March docket. We have not been favored with briefs by the defendant nor by the State, and therefore the record and the assignments of defendant's motion for new trial properly preserving the trial court's alleged errors are for our review. Rules 27.20, 28.02, 28.08, V.A.M.R.

Defendant conducted his own defense at the trial, filed his own after trial motions, and typed the transcript himself. His after trial motions, which we will consider collectively as a motion for new trial, present thirty-five assignments of alleged error, the vast majority of which are too general to comply with Rule 27.20, V.A.M.R. They are vague, indefinite, rambling, and repetitious, and preserve nothing for our review. However, we have ascertained that defendant attempts to raise certain constitutional questions and attacks the information. He also alleges as reversible error the overruling of his plea in abatement, the trial court's action in going to trial over his objections and in denying him time to apply for a writ of prohibition, the denial of his request for a mistrial, the giving of those instructions given by the court and the refusal to give certain instructions he offered. In addition, the defendant questions the sufficiency of the state's evidence to support the verdict.

The defendant was convicted of a misdemeanor, but if a question involving construction of the Constitution is properly presented, jurisdiction would be in the Supreme Court of this state. Article V, Sec. 3, Constitution of Missouri, V.A.M.S. Defendant alleges the trial court erred '* * * in refusing to submit any of defendant's instructions to the jury and in doing so denied to him the equal protection of the laws as provided by * * *' the Constitutions of Missouri and of the United States, and of the amendments thereto. There are also two references to '* * * the presumption of innocence * * *.' These allegations are insufficient to divest this court of jurisdiction. State v. Brookshire, Mo., 325 S.W.2d 497 (transf. to Mo.App., 329 S.W.2d 252); State v. Euge, Mo.App., 349 S.W.2d 502 at [1-3], pp. 503-504.

The attacks which the defendant makes upon the information are without merit. It plainly charges that on July 16, 1960, in St. Louis County, the defendant, with intent to cheat and defraud, obtained $250.00 from the Lemay Bank and Trust Company, by issuing his check drawn upon the Chippewa Trust Company, knowing that there were no funds in the latter to pay the check upon its presentation. The information follows the wording of the statute and alleges all the facts necessary to bring the defendant within the provisions thereof. State v. Kaufman, Mo.App., 308 S.W.2d 333.

The 'plea in abatement' which the defendant urges the trial court should have sustained was originally filed in another trial, arising out of this same occurrence, which resulted in a hung jury. This matter also brings into consideration the defendant's contentions of error with regard to the trial court's action in proceeding with the trial on September 26th, 1960, over his objection. The transcript which the defendant prepared, and which the State, by the Prosecuting Attorney for St. Louis County, approved, contains two recitations of what happened on the day of, and just prior to, trial. The record proper states, and defendant admits it so states, that on the 20th of September, 1960, the defendant was appearing on another cause before the trial court and was informed that the cause would be tried September 26th. The record proper also sets out that on that day, 'Defendant appears in person and as attorney pro se also announces ready for trial. Examination of jurors on voir dire begun, progressed and concluded, at the hour of 3:10 P. M. 18 qualified and competent jurors are found. State and defendant granted till tomorrow morning at 9:30 A. M. to make their respective challenges.' However, defendant has also included in the transcript what he contends to be '* * * the true record as it happened and in direct conflict to the record as made.' In that portion of the transcript, he contends he orally objected to trial on the 26th because the case had been previously continued until October 17th; that he filed the amended plea in abatement which he had filed in the case that resulted in a hung jury; and that he was '* * * coerced into trial of the cause without a hearing on his plea of abatement as filed.' Our concern that the defendant not be penalized because he has no counsel cannot be extended to accepting a version of what happened that is not only admittedly not included in the official record of the proceedings but actually contradicts that record. Defendant does not allege that his defense was in any way hampered by this action of the trial court except that he wanted to file certain pleas, such as in abatement, which the record discloses he in fact did file on the 27th of September in his motion to discharge the jury and declare a mistrial for lack of jurisdiction in the trial court. A perusal of this motion discloses that it is based on the contention that the cause was improperly heard on that day, a matter above disposed of adversely to defendant, and upon the contentions that: (1) until the plea in abatement had been ruled, the court could not continue; and, (2) that if the plea in abatement was overruled, defendant could appeal that ruling and thus prevent the trial from proceeding. These contentions are without merit. The record discloses that the trial court did in fact overrule this 'Plea In Abatement.' Moreover, although in his motion for new trial and in the notice of appeal he has filed, the defendant seeks to appeal this specific action of the trial court, he cannot do so. We specifically ruled this same point adversely to the defendant in State v. Euge, Mo.App., 349 S.W.2d 502 at , page 504. Neither is there any provision in the Criminal Code to prevent the trial court from proceeding when, to be doubly sure it was proceeding properly, it overruled such a motion. In State v. Euge, Mo.App., 349 S.W.2d 502, the defendant had failed to assign as error in his motion for new trial the overruling of his 'Plea In Abatement.' Evidently learning from experience, defendant included such an assignment of error in the motion for new trial in the instant case. We pass therefore to a consideration of the merits of such an assignment of error.

The 'Amended Plea In Abatement' alleges that '* * * a few days prior * * *' to the date on which the check incident occurred, a magistrate action was filed by Atomic Fireworks, Inc. of Missouri, hereinafter referred to as Atomic, against the defendant upon a debt that company alleged defendant owed it; that this action was by attachment and a '* * * writ of garnishment * * *' was issued therein and served upon the Lemay Bank and Trust Company; that defendant was not aware of this proceeding; that the affidavit upon which the magistrate issued the attachment was defective on its face and not in accordance with 'Section 521.060 of the R.S. of Missouri, 1949 * * *'; that defendant was not personally served nor was any other service had upon him in the action instituted by Atomic; that '* * * there was defective service upon the said Lemay Bank and Trust Company, as garnishee; * * *' that the petition in the action filed by Atomic failed to state a cause of action against the defendant in that it failed to allege '* * * the place of and the date, and time, and the manner in which the said debt was due * * *' and further failed to state where plaintiff therein or this defendant resided, '* * * or the circumstances by which the said debt was contracted or any fact giving said court legal and valid jurisdiction thereof.' The 'Amended Plea In Abatement' then alleged that the magistrate court in the Atomic case had no jurisdiction to proceed in that case and therefore the Lemay Bank and Trust Company '* * * was under no legal duty or obligation to respect the said attachment and garnishment or fear any consequences therefrom * * *.' In short, the defendant sought to try the validity of the attachment issued in the Atomic suit in this action, and contends it was prejudicially erroneous not to do so.

The amended plea in abatement filed in the action which resulted in a hung jury was verified by defendant's affidavit. See Sec. 545.830, RSMo 1959, V.A.M.S. The function of a plea in abatement is to bring to the court's attention matters outside the record which render the indictment or information invalid, State v. Hughes, Mo.App., 223 S.W.2d 106 at [4-7], page 109. For example, in State v. Bright, Mo.App., 263 S.W. 559, the defendant set up in such a plea the fact that she was compelled to appear and testify before the grand jury which later indicted her without having been advised that she was being investigated or the nature of the inquiry. The evidence thus procured was considered and relied upon in securing the indictment against her. The distinction between a matter of that nature, which directly attacks the validity of the indictment, and the matters contained in this 'Plea In Abatement' is obvious. In the instant case, the best that can be said of the matters pleaded in the 'Plea In Abatement' was that it constituted a defense to Atomic's action. The allegations therein in no way rendered invalid or void this information. The trial court properly overruled what defen...