State v. Harris

• Decision Date: 30 March 1935
• Citation: 81 S.W.2d 319,336 Mo. 737
• Parties: The State v. Fay C. Harris, Appellant
• Court: Missouri Supreme Court

81 S.W.2d 319

336 Mo. 737

The State v. Fay C. Harris, Appellant

Supreme Court of Missouri

March 30, 1935

Appeal from Jackson Circuit Court; Hon. James R. Page Judge.

Reversed and remanded (with directions).

A. N Abrams for appellant.

(1) The court erred in overruling the defendant's three motions and in sentencing the defendant to serve a term of fifty years upon each of the charges of robbery, the sentences to run concurrently, because it is shown on the face of the record proper and by the defendant's motions in arrest of judgment that the court had no power to so sentence the defendant. Sec. 4456, R. S. 1929; State v. McFadden, 309 Mo. 112, 274 S.W. 354. (2) The court erred in overruling appellant's motion for a new trial, motion to set aside the plea of guilty, and the sixth assignment of the motion in arrest of judgment for the reason that the appellant was induced to enter his pleas of guilty upon the representation and guaranty made him by the assistant prosecuting attorney that he would not receive any punishment in excess of ten years. State v. McFadden, 309 Mo. 112, 274 S.W. 354; State v. Cochran, 332 Mo. 742, 60 S.W.2d 1; State v. Meyer, 293 Mo. 112, 238 S.W. 458; State v. Dale, 282 Mo. 663, 222 S.W. 763; State v Stephens, 71 Mo. 535; State v. Meyer, 222 S.W. 765; Henslee v. Cannefax, 49 Mo. 295; Davis v. State, 20 Ga. 674; 1 Bishop's Criminal Practice, section 465; State v. Hare, 56 S.W.2d 141; State v. Kellar, 55 S.W.2d 969.

Roy McKittrick, Attorney General, and Wm. Orr Sawyers, Assistant Attorney General, for respondent.

(1) The formality of the judgments and sentences of the trial court, in the instant consolidated cause, were by authority of law and were rendered within the jurisdiction of said Circuit Court of Jackson County. Sec. 648, R. S. 1929; Art. VI, Sec. 22, Mo. Const.; Chap. 29, R. S. 1929; Secs. 3615, 3704, 3715, R. S. 1929; State v. Hedrick, 296 S.W. 154; 16 C. J. 1372, sec. 3228; Sec. 4456, R. S. 1929. (2) Allocution is not required in Missouri, where defendant is convicted and sentenced on a plea of guilty. Sec. 3713, R. S. 1929; State v. Rogers, 285 S.W. 978. (3) The trial court committed no error when he accepted defendant's pleas of guilty without appointing him counsel. Sec. 3614, R. S. 1929; State v. Miller, 292 S.W. 442. (4) The court did not err when he refused to set aside the plea of guilty for the reason that same was induced upon promise, threats, duress or fraud perpetrated by the assistant prosecuting attorney for the arresting officer. State v. Rogers, 285 S.W. 978. (5) The court committed an error of discretion in sentencing defendant to serve a sentence of fifty years each upon the informations filed in this consolidated cause, but said error is not reversible error. Sec. 3765, R. S. 1929.

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

OPINION

COOLEY

Defendant was charged by informations filed at the same time in the Circuit Court of Jackson County with five separate offenses of robbery in the first degree, alleged to have been committed by means of a deadly weapon, a pistol. The cases were conducted in the circuit court substantially as one case. Defendant entered pleas of guilty to all the charges at the same time and immediately upon the filing of the informations and was on the same day sentenced to fifty years' imprisonment in the penitentiary on each charge. Thereafter, within four days, he filed in each case motions asking leave to withdraw his pleas of guilty and substitute pleas of not guilty, motions for new trial and motions in arrest of judgment, all of which were heard together by the court and overruled and defendant has appealed. The cases have been consolidated and briefed, argued and submitted together in this court.

The five offenses are charged to have been committed within a period of some six weeks, the first in point of time being charged to have been committed on August 14, 1933, and the last on September 29, 1933. The amounts charged to have been taken vary from $ 8.50 (in money, groceries and cigarettes) in one case to $ 19 in money in another, and aggregate in the five cases $ 66.80. On the hearing of defendant's motions it was shown that he was arrested on Friday, September 29, 1933, and taken to the police station where he was held until the following Monday morning, October 2, when he was taken to the prosecuting attorney's office. There he was questioned by Assistant Prosecuting Attorney Boyle who prepared the informations and subsequently handled the cases for the State. Defendant had been questioned at the police station where he admitted his guilt of at least one of the offenses, that of September 29, in which he had robbed Thomas H. Howle of $ 7.50 in money, $ 1 worth of cigarettes and rolls and coffee valued at thirty cents. At Mr. Boyle's office defendant confessed to all five of the robberies. Informations were prepared, defendant signed a written waiver of his right to preliminary examinations and to consult with friends or attorney, and was taken to the courtroom where the informations were all read to him and he was asked by Mr. Boyle if he desired to plead guilty to each, to which he replied in the affirmative and the pleas were entered accordingly. Mr. Boyle then stated to the court: "Now, Your Honor, in this case, before filing these five informations, I informed this defendant of his rights to a preliminary hearing before a Justice of the Peace and his rights to consult with friends and attorneys and to his trial before twelve men. I also informed him that he could waive that hearing and be filed on directly before this court here. I also informed him that if he waived his preliminary hearing and wanted to plead guilty before Your Honor that the penalty would be somewhere between ten years in the penitentiary and death and the exact amount would be in your discretion. He asked if I could give him any idea of the amount you would give him. I told him it would be entirely up to you. That is right, isn't it?

"The Defendant: Yes, sir.

"Mr. Boyle: Under these facts and circumstances he signed his waiver, waiving his preliminary hearing. Is that your signature?

"The Defendant: Yes, sir.

"Mr. Boyle: That is what you want to do now?

"The Defendant: Yes, sir.

"Mr. Boyle: The facts are this man got out of the penitentiary in New Mexico and that May fourteenth this year he was paroled from a three to twenty-five year sentence for robbery in Santa Fe and served two years. He came to Kansas City where his sister lives, . . .

"The Defendant: (Interrupting): My folks live here also.

"Mr. Boyle: And he bought a gun. May I see the gun, Frank?

"Frank Howland: Yes, sir. (Hands gun to Mr. Boyle.)

"Mr. Boyle: He bought this gun in Kansas City for $ 15.00 and bought the cartridges.

"The Defendant: They gave me the cartridges.

"Mr. Boyle: Did you just have five?

"The Defendant: Six.

"Mr. Boyle: And he borrowed his sister's car and started out to hold up these places and it went on about a month's time, I guess.

"The Defendant: Yes, sir.

"Mr. Boyle: And on the twenty-ninth he held up this building wherein a grocery store is located at Thirty-third and Penn. They broadcast it over the radio and he left in his sister's car and drove out in the Northeast district and to Nineteenth and Paseo. Officers Howland and Johnson had received the radio call and description and when they arrested him, found this gun in his pocket and cartridges. He left the rolls and cake in the car, they found those in the car and a carton of Lucky cigarettes in the car, and the money that was stolen. He readily admitted his guilt. Mr. Howland identified him and that is about as much as I know about it."

At the request of the court Mr. Howle then described the "last holdup," that in which he was robbed. The defendant then stated in answer to questions by the court that he was thirty-three years old; that he had been receiving a pension because of disabilities resulting from his service in the war, and that the pension had been discontinued about July 1, 1933, leaving him and his wife and child destitute and that he had been unable to get work because of his physical condition; that he and another had "held up" a filling station in New Mexico when he was on his way to California seeking work, and had taken some gasoline; that they were caught "right there," and that on a plea of guilty he had been given an indeterminate sentence of from three to twenty-five years, from which, after serving about two years, he had been paroled. The court then said:

"The man was out on parole and given a chance. I want to double that sentence to what it was before. Fifty years in the State Penitentiary on each charge to run concurrently. I can't give you the same consideration as a man who never had a chance. The sentence will be fifty years on each charge to run concurrently."

Thereupon and all at the same time judgments of fifty years' imprisonment in each case were entered.

In his motion for leave to withdraw the pleas of guilty and enter pleas of not guilty and for new trial the defendant asserted in substance that he had pleaded guilty under misapprehension as to his rights and the results of such pleas induced by what the assistant prosecuting attorney had told him; that he had understood from what the assistant prosecuting attorney had told him that he would receive on pleas of guilty punishment aggregating only ten years' imprisonment and would not have entered such pleas had he not so understood and been led so to believe. His testimony at the hearing of the motions tended to support his contentions. He had not consulted an attorney when he entered the pleas and did not then have counsel. At the hearing it appeared that his brother-in-law was...