State v. Hart, 51516

• Citation: 411 S.W.2d 143
• Decision Date: 13 February 1967
• Docket Number: No. 1,No. 51516,51516,1
• Parties: STATE of Missouri, Respondent, v. Clifford HART, Appellant
• Court: United States State Supreme Court of Missouri

Page 143

411 S.W.2d 143

STATE of Missouri, Respondent, v. Clifford HART, Appellant.

No. 51516.

Supreme Court of Missouri, Division No. 1.

Feb. 13, 1967.

Norman H. Anderson, Atty. Gen., Jefferson City, Mo., Norman Humphrey, Jr., Sp. Asst. Atty. Gen., Independence, Mo., for respondent.

Robert B. Baker, Ellington, Mo., for appellant.

HOLMAN, Presiding Judge.

Defendant was charged with breaking and excaping from the Reynolds County jail while being lawfully imprisoned upon a felony charge, i.e., subornation of perjury before conviction thereon. See § 557.390 (all statutory references are to RSMo 1959, V.A.M.S.). A trial resulted is a verdict of guilty and defendant's punishment was fixed by the jury at imprisonment in the county jail for six months. He has appealed from the judgment.

The evidence offered was not extensive and hence a brief statement of facts will suffice. Timon Johnson, Sheriff of Reynolds County, testified that he arrested defendant at about 3 p.m. on June 13, 1963, and locked him in the county jail about 4 p.m.; that about 5 p.m. on June 15 he fed the defendant who was the only prisoner in the jail at that time; that when he returned to the jail the next morning he discovered that a door leading into a storage room was open and found a pile of brick where a hole had been chiseled out of the outside wall; that defendant was not in the jail at that time.

It was shown by the testimony of the clerk of the magistrate court, and a transcript of the proceedings, that defendant, on June 12, 1963, had been charged with subornation of perjury; that a warrant was issued to the sheriff and the defendant was brought before the magistrate court on June 14, 1963; that the bond of defendant was fixed at $200 and his preliminary hearing set for June 21, 1963; that defendant did not furnish bond and a commitment was issued directing the sheriff to commit defendant to the county jail until a bond was given or until the date of the preliminary hearing. There was testimony that defendant did not obtain his release upon bond prior to the time he disappeared from the county jail.

Defendant did not testify. The only witness offered by defendant was D. D. Walton who testified that defendant had lived on some property he owned in Shannon County and had worked for him; that on the day defendant was arrested he went to the county seat and talked with the sheriff; that he told the sheriff he would be willing to sign a small bond for the release of defendant; that the sheriff said the bond would be $1,500 and that 'I should be careful who I signed a bond for'; that 'when I said I couldn't raise the $1,500 he just dropped the matter.' He further stated that he owned real estate worth $12,500, but it was shown on cross-examination that his wife had an interest in the real estate and that she was not with him at the time but was in St. Louis.

The information charged that defendant wsa imprisoned in the jail upon a charge of 'Subornation of Perjury, being Case Number 1598 of the Magistrate Court of Reynolds County, Missouri * * *.' Thereafter, in the information, in alleging that he had not yet been convicted, it is said that the charge was under § 557.080. The last mentioned section defines the offense of attempting to corrupt witnesses. Defendant says that the court erred in overruling his motion to dismiss the information because there was no way of ascertaining which charge defendant was being imprisoned on and therefore the information failed to charge a crime. We have concluded that the information sufficiently charged the offense. It correctly stated that defendant had been charged with 'subornation of perjury.' It also stated that the charge was in Case Number 1598 of the Magistrate Court of Reynolds County, and a reference to the complaint in Case Number 1598 would have disclosed that the charge was subornation of perjury. The inadvertent inclusion thereafter of a reference to a statute which defined a different but similar offense may be disregarded as surplusage. We rule this point against defendant.

The second point briefed is that the court erred in overruling defendant's motion to dismiss which was based upon the fact that an attorney was not appointed for him prior to the time he waived his preliminary hearing. There is no merit in that contention. Defendant admittedly waived the preliminary hearing. As we understand his present contention, it is that he should not have been bound by that waiver because he had not been advised by counsel, nor advised of his right to counsel, prior to the waiver. In that connection we have consistently held that 'the mere lack of counsel at a preliminary hearing held under the Missouri practice is not a deprivation of due process or of any other constitutionally protected right.' State v. McClain, Mo.Sup., 404 S.W.2d 186, 189. There is nothing in the circumstances of the case at bar that would preclude the application of the quoted rule. As indicated, the point is disallowed.

It appears from statement made by defendant's attorney during the voir dire examination of the jury panel that on the day prior to the trial the court revoked defendant's bond, giving as the reason therefor that defendant was unreliable and that the bond was revoked in order to be sure defendant would appear for the trial. It was brought out on voir dire that several members of the panel were present in the courtroom and heard what was said at that time. Thereafter, the court asked the members of the panel if anything they had heard concerning the foregoing would prejudice them against defendant, and if they could disregard the occurrence and give the defendant a fair and impartial trial. The jurors indicated that they were not prejudiced and that they would give defendant a fair trial. Defendant moved to discharge the entire panel because of the occurrence, and the motion was overruled. Defendant here contends that said ruling constituted prejudicial error. In deciding this point we are mindful of the rule that the trial court has considerable discretion in ruling on challenges of veniremen that are not disqualified as a matter of law. State v. Spica, Mo.Sup., 389 S.W.2d 35. In this instance the jurors indicated that they were not prejudiced by the incident and would give the defendant a fair trial. We see nothing in the circumstances which would cause us to conclude that the court abused its discretion in overruling the motion. The contention is overruled.

During the selection of the jury the sheriff, at the direction of the court, selected four special jurors from the bystanders to fill vacancies on the panel. After the voir dire examination had been completed the defendant challenged those four jurors because they had been selected by the sheriff who was to be an important witness in the case. The court overruled the challenge because the objection was not made at the time the sheriff was directed to obtain the jurors. Defendant here contends that the ruling was erroneous. In a similar situation this court stated that 'if the defendant desired to object to the sheriff summoning the jurors, a timely motion should have been made before the venire had been summoned, and he should not have waited until the jurors were in court.' State v. Jeffries, 210 Mo. 302, 109 S.W. 614, 621. In this case the defendant not only waited until the jurors were in court, but did not object until the voir dire examination had been completed. The trial court ruled correctly in denying the challenge.

In the cross-examination of the circuit clerk defendant's attorney asked if the subornation case had been dismissed and the clerk answered that she did not know. At the conclusion of the State's evidence the following occurred:

'The ...