State v. Hamilton

• Decision Date: 11 July 1935
• Citation: State v. Hamilton, 85 S.W.2d 35, 337 Mo. 460 (Mo. 1935)
• Parties: The State v. Roy E. Hamilton and Dave Eddy alias Eddie Gayman, Appellants
• Court: Missouri Supreme Court

85 S.W.2d 35

337 Mo. 460

The State v. Roy E. Hamilton and Dave Eddy alias Eddie Gayman, Appellants

Supreme Court of Missouri

July 11, 1935

Appeal from New Madrid Circuit Court; Hon. John E. Duncan Judge.

Affirmed.

McKay & Peal for appellants.

The general rule touching the matter of setting aside a judgment of conviction and granting permission to withdraw a plea of guilty in a criminal case, is, that it is always discretionary to permit a plea of not guilty to be withdrawn for the purpose of interposing a plea in abatement as a plea of misnomer or a plea setting up defects in the grand jury, a plea to the jurisdiction, a special plea in bar, a plea of guilty, a demurrer, or motion to quash, or a motion to compel the prosecution to elect between two offenses charged in different counts. 16 C. J. 399, sec. 731; Sunday v State, 14 Mo. 417. Under the above rule has been said that the least surprise or influence causing him to plead guilty when he had any defense at all, should be sufficient cause to permit a change of the plea from guilty to not guilty. State v. Coston, 113 La. 717; State v Williams, 45 La. 1357; Crolage v. People, 224 Ill. 456. Where a plea of guilty in a murder case has been entered by the prisoner through fear that he would be hanged by a mob, he should be allowed to withdraw the plea after sentence. Sanders v. State, 85 Ind. 318; Little v. Commonwealth, 142 Ky. 92. Or if it appears that the plea was entered under some mistake or misapprehension. Pope v. State, 56 Fla. 81; Davis v. State, 20 Ga. 647; People v. Byzon, 267 Ill. 498; State v. Boutte, 119 La. 134. The matter permitting a plea of guilty is within the sound discretion of the trial court. State v. Allen, 174 Mo. 689; Sunday v. State, 14 Mo. 417. And at the same time, this discretion should be exercised liberally in favor of life and liberty. Krolage v. People, 224 Ill. 456; State v. Cimini, 53 Wash. 268; State v. Keller, 55 S.W.2d 969; State v. Cochran, 60 S.W.2d 1; State v. Hare, 56 S.W.2d 141; State v. Stephens, 71 Mo. 535; State v. Kring, 71 Mo. 551.

Roy McKittrick, Attorney General, and William W. Barnes, Assistant Attorney General, for respondent.

(1) The only matter before this court for review in this case is the record proper. Sec. 3735, R. S. 1929; State v. LaBreyere, 64 S.W.2d 118; State v. Blanchard, 326 Mo. 967. (2) Court not obligated to appoint counsel for defendants. Sec. 3614, R. S. 1929; State v. Miller, 292 S.W. 442; State v. Terry, 210 Mo. 701; State v. Steelman, 318 Mo. 630. (3) The information is sufficient in form and substance. State v. Jones, 134 Mo. 259; State v. Privitt, 175 Mo. 223; State v. Rice, 149 Mo. 465; State v. Clay, 201 Mo. 686. (4) The finding of fact was clear and definite. Sec. 3704, R. S. 1929; Ex parte Dusenberry, 97 Mo. 508; Dusenberg v. Randolph, 30 S.W.2d 96. (5) Withdrawal of plea of guilty is within sound discretion of trial court. State v. Keller, 55 S.W.2d 972; State v. Richardson, 98 Mo. 567; State v. Stephens, 71 Mo. 535; State v. Dale, 282 Mo. 663.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

Roy E. Hamilton and Dave Eddy, alias Eddie Gayman, were charged with the murder, in the first degree, of Arthur Cashion and pleaded guilty. Their punishment was assessed at death. Thereafter they filed a motion to set aside the judgment and to withdraw said pleas of guilty, and appeal from an adverse ruling thereon.

The State contends that, since no motion for new trial was ever filed, the only matter for review before this court is the record proper. Judgment was entered of record on January 20, 1934. On February 21, 1934, and during said term of court, leave having been obtained, defendants' motion to set aside said judgment and to permit the withdrawal of the pleas of guilty was filed. We agree with the learned Attorney General that, for a review of errors occurring upon the trial of a criminal cause, it is essential that a motion for new trial be filed before judgment. [Sec. 3735, R. S. 1929, Mo. Stat. Ann., p. 3275.] However, this is an appeal from an order refusing to set aside a judgment and for permission to withdraw pleas of guilty upon which said judgment was entered. We find no statutory provisions limiting the time within which such a motion may be filed. In State v. Lonon, 331 Mo. 591, 596(1), 56 S.W.2d 378, 380, we said: "Courts of general jurisdiction have inherent authority, during the term, to vacate any judgment or order that may have been made at that term." This court has reviewed the action of the trial courts on like motions filed subsequent to the entry of the judgment [State v. Cochran, 332 Mo. 742, 744, 60 S.W.2d 1, 2; State v. Williams, 320 Mo. 296, 301, 6 S.W.2d 915, 916; State v. Harris, 336 Mo. 737, 81 S.W.2d 319], and apparently without regard to the lapse of time if filed during the term the judgment was entered [State v. Jonagan, 311 Mo. 540, 546, 278 S.W. 775, 777, judgment entered January 22, 1925, and motion to set aside filed February 26, 1925]. Defendants having filed their said motion under leave of court during the term at which judgment was rendered, the action of the court thereon is reviewable.

Defendants contend that, on a trial on the merits, they would be entitled to an instruction on second degree murder and to interpose the plea of self-defense; and, therefore, their motion should have been sustained. These contentions are based on the theory that defendants had no intention to kill at the inception of the attempted robbery; and that when deceased showed resistance they abandoned the attempt to rob and shot deceased in self-defense. This necessitates a statement of the facts attending the homicide.

The following facts were adduced from defendants at the hearing held on their motion: The defendants had been drinking and drove their automobile up to a service station operated by Arthur Cashion, deceased, about eight P. M., December 24, 1933, with the purpose and intention to rob the deceased, and ordered five gallons of gasoline. Each had a gun. Defendants entered the service station while Cashion was servicing their car. When Cashion came in he was between the defendants and the door to the service station. Defendant Eddy drew his pistol and ordered Cashion to throw up his hands. Events followed in rapid sequence. Cashion immediately secured a gun from beneath his sweater, and Eddy took hold of the gun and tried to take it from Cashion. Cashion shot Eddy through the hand, knocking him away from the gun, and was backing toward the door. Eddy grabbed Cashion again and Cashion shot him through the right lung. Eddy then began firing and shot five or six times. Defendant Hamilton had been standing by the stove and had some money in his hand to pay for the gasoline when Eddy issued his order to Cashion. He attempted to seize Cashion's arm, but when the shooting started he took refuge behind the stove, and shot at Cashion three times. One of Cashion's shots grazed Hamilton's cheek. Most of the shots were fired while Cashion was in the doorway. Cashion ran out and his body was found at a corner of the service station.

By Section 3982, Revised Statutes 1929 (Mo. Stat. Ann., p. 2778) ". . . every homicide which shall be committed in the perpetration or attempt to perpetrate any . . . robbery . . . shall be deemed murder in the first degree." The statute makes no exception. State v. Hart, 292 Mo. 74, 100(6), 237 S.W. 473, 482, states: "The defendant's connection with the crime was through his association with the other men in the attempt to rob the bank, in which attempt the murder was committed. It was murder in the first degree if he was there with the others engaged in that enterprise." The statute so reads. [See State v. Merrell (Mo.), 263 S.W. 118, 123(13).] There is no evidence in the record upon which to base an instruction on murder in the second degree.

Nor does the evidence justify the submission of the issue of self-defense. There was no abandonment, request for peace, or surrender communicated to deceased. Defendants' efforts were directed toward the accomplishment of the robbery or their escape without apprehension. They were admitted felons, engaged in attempted robbery by means of dangerous and deadly weapons, and brought on the combat in an effort to accomplish the crime. Deceased had the legal right to defend himself and his place of business against defendants' felonious acts. [Sec. 3985, R. S. 1929, Mo. Stat. Ann., p. 2789; Morgan v. Durfee, 69 Mo. 469, 475(1).] The plea of selfdefense may only be asserted against an unlawful attack. In State v. Hart, 292 Mo. 74, 100(7), 237 S.W. 473, 482(28), deceased, a bank employee, was killed during an attempt to rob the bank. The court said: "The appellant also assigns error to the failure of the court to instruct on self-defense on the theory that the deceased fired the first shot. The only evidence upon the subject is to the effect that the men came into the bank with their guns in their hands. There was no ground for self-defense."

The defendants contend that their pleas of guilty were made under duress; that is, under the fear and excitement of mob violence, and for that reason the judgment should not be permitted to stand.

While a plea of guilty is a confession in open court, to be received with caution and only if voluntarily and freely made [State v. Cochran, 332 Mo. 742, 745(2), 60 S.W.2d 1, 2(5-8)] when accepted and entered by the court, it "'is a conviction of the highest order, the effect of which is to authorize the imposition of the sentence prescribed by law on a verdict of guilty of the crime sufficiently charged in the indictment or information.'" [Dusenberg v. Rudolph, 325 Mo. 881, 886, 30 S.W.2d 94, 96, quoting 8 R. C. L., p. 116, sec. 85.] Granting permission...