State v. Garton
| Decision Date | 08 November 1965 |
| Docket Number | No. 51288,No. 1,51288,1 |
| Citation | 396 S.W.2d 581 |
| Court | Missouri Supreme Court |
| Parties | STATE of Missouri, Respondent, v. Charles W. GARTON, Appellant |
Norman H. Anderson, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., Jefferson City, for respondent.
Charles W. Garton, appellant pro se.
WELBORN, Commissioner.
A jury in the Andrew County Circuit Court, on April 11, 1962, found Charles W. Garton guilty of first degree robbery by means of a dangerous and deadly weapon. The charge arose out of a robbery of the Farley State Bank on September 1, 1961.
The Second Offender Act (Section 556.280, RSMo 1959, V.A.M.S.) was found to be applicable and the court sentenced Garton to life imprisonment. On appeal, the judgment of conviction was affirmed by this court. State v. Garton, 371 S.W.2d 283.
On July 11, 1964, Garton filed, pursuant to Supreme Court Rule 27.26, V.A.M.R., a motion to vacate the judgment and sentence against him. On December 8, 1964, the Andrew County Circuit Court overruled the motion without a hearing, the court having concluded that the motions, files and records of the case show that the prisoner is not entitled to relief. An appeal was taken from the order denying relief.
On this appeal, any meritorious contention of appellant must relate to the denial of his motion without a hearing on its factual allegations. Insofar as the greater part of allegations of the appellant's pro se motion are concerned, the trial court properly found either that they stated no grounds for relief in the proceeding here under review or that they should be determined against the appellant on the basis of the files and records of the trial court.
In the former category are such matters as the refusal of the trial court to grant a continuance at the original trial, allegedly prejudicial remarks of the prosecutor during the trial and the admission of various items of evidence and testimony. The matters referred to are, at the most, matters of trial error, affording no basis for relief in this collateral proceeding. In addition, several of these objections and others here raised were actually presented and determined adversely to appellant on his direct appeal. State v. Garton, supra. Thus the objection, based upon Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, that due process was denied by the trial court's refusal to compel production of a written statement by the state's witness, Streater, was considered and determined on the direct appeal. State v. Garton, 371 S.W.2d 289-290.
The contention that application of the Second Offender Act violates the constitutional guarantee of trial by jury (Art. I, Sec. 22(a), Constitution of Missouri, 1945, V.A.M.S.) has heretofore been determined adversely to appellant's contention. State v. Wolfe, Mo.Sup., 343 S.W.2d 10, 12. The punishment is within the limit imposed by law. Section 560.135 RSMo 1959, V.A.M.S. Therefore, there is no ground for complaint here that the punishment is excessive, arising out of the trial judge's erroneous assumption concerning the appellant's prior criminal record or the effect of the crime for which he was sentenced.
Objections that the trial judge was disqualified to hear the case because he was a depositor in the bank robbed and that the prosecuting attorney was an officer and depositor in the bank and therefore the information filed by him was void afford no basis for relief in the proceeding under review. If such be the facts, and assuming that this would establish such interest as would disqualify the trial judge and the prosecuting attorney, these facts could have become known to the appellant prior to his trial in order to have permitted objection based thereon to have been raised in the proper manner. There is no allegation that these facts were not known to the appellant prior to his trial.
The allegation that the Supreme Court denied his request for the appointment of counsel to represent appellant on his direct appeal states no grounds for relief under Supreme Court Rule 27.26, V.A.M.R. State v. Howard, Mo.Sup., 383 S.W.2d 701, 704[6, 7]; State v. Schaffer, Mo.Sup., 383 S.W.2d 698, 700[6-9].
The allegation pertaining to the denial of effective assistance of counsel is rebutted by the transcript of the former trial, a part of the records of the circuit court. The transcript shows that appellant was represented at the trial by counsel of his own choosing who carefully and skillfully represented appellant.
The allegations of appellant's motion involving factual matters are found in three paragraphs of the motion. In the first, he contends that the prosecuting attorney 'willfully, knowingly, and purposely withheld and suppressed evidence favorable to defendant.' According to the motion, one of the robbers who entered the bank was 'disguised in a large mustache.' The motion further alleges that prosecuting officials knew that the state witnesses 'had seen such a mustache and could so testify;' that such evidence was not known to the defendant or his counsel at the trial, and that the evidence was purposely withheld and deliberately suppressed by prosecuting officials with intent to prejudice the defense. According to the allegation of the motion, evidence 'of such a mustache was of vital importance and material to the witnesses claims of positive identification of (appellant); that such evidence was vital to the jury's decision and if known to the jury such evidence would have resulted in a different verdict; * * *.'
Three employees of the bank did positively identify Garton as one of the two men who entered the bank and participated in the robbery. None of the witnesses mentioned that either of the persons entering the bank was disguised by a mustache, although the witnesses did testify that the robbers wore facial makeup. Assuming that the allegations of the motion are true, the evidence at best would go merely to the credibility of the identifying witnesses. It might tend to cast some doubt upon their ability to identify the persons who entered the bank. However, the transcript of the evidence on the trial of the appellant shows that the witnesses quite definitely identified the appellant on the basis of his facial characteristics in spite of his efforts to disguise himself by means of hair dye and facial makeup. We must reject the appellant's contention that had the witnesses testified that one of the robbers, supposedly the appellant, was wearing a mustache, it would have so shaken the positive identification by the witnesses that the jury would have rejected their testimony. At the best it would relate only to the credibility of the witnesses and factual matters pertaining thereto do not afford a basis for relief under Supreme Court Rule 27.26, V.A.M.R. State v. Rutledge, Mo.Sup., 317 S.W.2d 365, 367.
The next allegation of factual matter deals with the appellant's allegations that...
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State v. Stidham
...that a judgment obtained by the knowing use of perjured testimony should be vacated upon a proper factual showing.' State v. Garton, Mo., 396 S.W.2d 581. The insuperable difficulty with this particular claim of infringement of due process is that it is not supported by the record. Annotatio......
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Garton v. Swenson, 74-1041.
...Garton's subsequent post-conviction motion pursuant to Rule 27.26, V.A.M.S., was denied without hearing and affirmed. State v. Garton, 396 S.W.2d 581 (Mo.1965). In Garton's initial federal habeas corpus proceeding the United States District Court for the Western District of Missouri, the Ho......
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State v. Cook, 53909
...by Section 559.260, supra, and there can be no complaint of excessive punishment when it is within limits imposed by law. State v. Garton, Mo., 396 S.W.2d 581, 582(3). Under counsel's point 3 and appellant's point A, it is contended that appellant was deprived of his right against self-incr......
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Garton v. State
...instituted a 27.26, V.A.M.R., proceeding in which he attacked his 1962 conviction and the judgment in that case was affirmed, State v. Garton (Mo.), 396 S.W.2d 581. And in April 1967 the United States District Court for the Western District of Missouri entertained his habeas corpus proceedi......