State v. Harmon
| Decision Date | 12 November 1951 |
| Docket Number | No. 42262,No. 1,42262,1 |
| Citation | 243 S.W.2d 326 |
| Parties | STATE v. HARMON |
| Court | Missouri Supreme Court |
Jack C. Jones, Carrollton, for appellant.
J. E. Taylor, Atty. Gen., Samuel M. Watson, Asst. Atty. Gen., Grover C. Huston, Asst. Atty. Gen., for respondent.
LOZIER, Commissioner.
This case was reassigned. We use, without quotation marks, portions of the opinion initially prepared.
Clarence R. Harmon was convicted of grand larceny and has appealed from a judgment sentencing him to two years in the penitentiary.
The state's motion to strike all of the transcript of the record other than the record proper was submitted with the case. After verdict, prior to judgment, and within time, defendant filed his motion for new trial. The bill of exceptions recites that the motion for new trial was called, submitted for determination and, after consideration, overruled. A stipulation was executed wherein counsel for both parties agreed that the bill of exceptions to which it was attached was true and correct and that the same might be approved, allowed, and signed by the trial judge. The trial judge, by his executed certificate, signed and allowed it as a true and correct bill, except as to the entry heretofore referred to pertaining to the court's action on defendant's motion for new trial. A statement of the trial judge, attached to his certificate, is as follows:
A certified copy of the docket entry contained in the court's statement above was furnished to correct the record proper.
It appears, therefore, that the full transcript, as corrected, has been duly settled and properly filed. No reason has been assigned for ordering, nor do we know of any basis upon which we could order, any part of the transcript stricken. The state's motion to strike is overruled. The real contention of the state, presented by its motion and the supporting memorandum, is that defendant by requesting the trial court to 'refuse' his motion for new trial has waived his right to, or is estopped to, urge on this appeal any alleged errors committed in the trial of the case and preserved in his motion for new trial for review. These contentions, while not supporting a motion to strike, will be considered sidered and determined although not presented as they should be as a part of state's brief on the merits.
A defendant in a criminal case may expressly or by acts and conduct waive statutory and constitutional provisions conferred for his protection. Illustrative of the principle are cases holding that a defendant may waive his right to appeal; his right to be confronted with adverse witnesses; his right to disqualify a judge or to obtain a change of venue. He may stipulate for a change of venue and thereby waive the necessity for a written application and affidavit therefor. He may waive the necessity for signatures of witnesses to their testimony at a preliminary hearing. 17 C.J. 48, Sec. 3326 (24 C.J.S., Criminal Law, Sec. 1668); State v. Perkins, 339 Mo. 27, 31, 95 S.W.2d 75, 76, 77; State v. Logan, 344 Mo. 351, 354, 355, 126 S.W.2d 256, 259, 122 A.L.R. 417; State v. Naves, 185 Mo. 125, 133, 84 S.W. 1, 3; State v. Taylor, 132 Mo. 282, 287, 33 S.W. 1145, 1146, 1147; State v. Lloyd, 337 Mo. 990, 993, 87 S.W.2d 418, 420. And, of course, a defendant may not take advantage of self-invited error. State v. Woodward, 182 Mo. 391, 414, 81 S.W. 857, 864; State v. Nenninger, 354 Mo. 53, 59, 188 S.W.2d 56, 58.
Here, whether it be contended that appellant waived his right to appeal, or waived his right on appeal to urge any alleged errors occurring during trial, or is estopped to assert such alleged errors on the theory that they were self-invited, the answer must depend upon the interpretation which may be placed upon the entry made by the trial judge in the light of the acts of the parties concerned and other existing circumstances.
We are convinced that an appellate court should not hold that a defendant in a criminal case has waived a right or find that he is estopped unless the record, the acts of defendant and all the circumstances are inconsistent with any other interpretation. The docket entry of July 7, 1950 is: 'On request of defendant his motion for new trial is refused.' We shall assume that the word 'refused' means 'overruled.' We note certain other record entries which are not consistent with the conclusion that appellant intended to waive his right to urge alleged errors occurring during the trial on appeal or to waive his right of appeal but, on the contrary, indicate an opposite intention.
As stated, the record shows the entry by the trial court was made on July 7, 1950. The record also shows that appellant on the same date was granted allocution and sentenced in accordance with the verdict of the jury; on the same day appellant's notice of appeal was filed; on the same day the court fixed the amount of an appeal bond at $4,000; on July 12, 1950 appellant's recognizance on appeal was filed and approved by the trial court.
The act of defendant, through his attorneys, following a 'request' that the motion for new trial be 'refused' and after judgment had been pronounced, in filing a notice of appeal on the same day the motion was 'refused,' the action of the court at the same time in fixing the amount of the appeal bond of the defendant and thereafter approving the bond, are inconsistent with an understanding among the court, the appellant, and counsel for both sides that appellant, by his request, was waiving or intended to waive either his right to appeal or his right to urge alleged error on appeal. Further, prior to the time the bill of exceptions was submitted to the trial judge for approval, attorneys for the state and appellant agreed by written stipulation that the bill of exceptions was true and correct. The bill of exceptions so agreed upon contained the following under date of July 7, 1950: 'Now comes the Prosecuting Attorney for the State and the Defendant in person, and by his attorneys, and the motion of the defendant for a new trial of this cause is here called up and submitted to the Court for determination; and the Court, having heard and duly considered said motion, doth order that the same be overruled.' We make clear that we do not refer to this entry in the bill of exceptions as in any way indicating that the docket entry made by the trial judge is not accurately reflected in the trial judge's statement heretofore set forth and appearing in the record proper as corrected after filing here. We make this reference only as indicative of the fact that counsel for the state and appellant did not understand that whatever proceedings occurred before the trial judge on July 7, 1950 resulted in, or that the result was intended to be, an intentional waiver of any right relating to appeal on the part of appellant.
It is also proper, we think, in considering this question to point out that if appellant, through his attorneys, did make clear to the trial judge that appellant desired to waive any rights he might have to appeal or to urge alleged errors occurring during trial on appeal, then such intention could have been unmistakably reflected in the record by the withdrawal by appellant of his motion for new trial. In Commonwealth of Pennsylvania v. Bailey & Ford, 92 Pa.Super. 581, the record showed that defendants agreed to a withdrawal of their motion in arrest of judgment and agreed to accept without further exception or objection sentences imposing imprisonment, and that this agreement was entered into by the defendants after the advice of counsel and with a full understanding of the implications of the agreement. The...
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...not have inquired of Patton's mother about her son's desire to appeal if counsel believed no right of appeal existed. See State v. Harmon, 243 S.W.2d 326, 330 (Mo.1951) (appellate court should not hold criminal defendant waived right to appeal unless record, acts of defendant, all circumsta......
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...stating 'in detail and with particularity' the specific grounds or causes of complaint in the motion for a new trial. State v. Harmon, Mo.Sup., 243 S.W.2d 326, 332(12); State v. Gaddy, Mo.Sup., 261 S.W.2d 65, 67(2); State v. Powell, 339 Mo. 80, 95 S.W.2d 1186, 1189(4); State v. Grubbs, 358 ......
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