State v. Herron
| Decision Date | 09 March 1964 |
| Docket Number | No. 49867,No. 1,49867,1 |
| Citation | 376 S.W.2d 192 |
| Parties | STATE of Missouri, Respondent, v. Richard HERRON, Appellant |
| Court | Missouri Supreme Court |
Richard Herron, pro se.
Thomas F. Eagleton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., Jefferson City, for respondent.
This is a proceeding brought by defendant under S.Ct. Rule 27.26, V.A.M.R., 4 RSMo 1959, p. 4924, to vacate and set aside a sentence of imprisonment imposed upon him for the crime of robbery in the first degree and under which sentence he is now imprisoned in the State Penitentiary. Denied the relief sought, he has appealed to this court.
Upon trial by jury in the Circuit Court of Mississippi County, at which he was represented by counsel, defendant was found guilty of the crime of robbery in the first degree of one J. C. Happe and his punishment was assessed at imprisonment in the State Penitentiary for a term of fifty years. See Secs. 560.120 and 560.135 RSMo 1959, V.A.M.S. (to which revision all statutory references herein are made). Following rendition of judgment and imposition of sentence in accordance with the verdict, defendant perfected his appeal to this court, where, on review, the judgment was affirmed. State v. Herron, Mo.Sup., 349 S.W.2d 936.
The pro se motion filed by defendant to vacate and set aside the judgment rendered in the trial court and affirmed on appeal by this court is quite illiterate and frequently so incoherent as to defy understanding of the meaning intended. It is clear, however, that it sufficiently, among other things, alleges: (1) that the complaint upon which defendant was arrested and thereafter ordered held for trial in the circuit court was insufficient; (2) that he had ineffective assistance of counsel and was deprived of a fair trial because of the youth and inexperience of the attorney who presented himself to and did represent defendant when an attorney theretofore designated by the trial court to represent him did not appear on the day the case came on for trial; (3) that the prosecuting attorney and sheriff threatened that they would see that he was given the death penalty, following which defendant made a 'supposed' confession; and (4) that he was denied use of the trial transcript in preparing the instant motion.
The transcript of the files and records certified here on this appeal shows that on the 12th day of September, 1962, the trial court permitted defendant, as an indigent person, to file the motion to vacate and set aside the sentence imposed upon him for the crime of robbery; and that upon examination of the motion and the files and records of the case the trial court was satisfied that defendant was not entitled to the relief sought and denied his motion without hearing.
Defendant's contention that the complaint filed against him was void and did not lawfully warrant his arrest is predicated upon the fact that it was signed by the prosecuting attorney, who, defendant alleges, was not a lawful 'complaining witness' within the meaning of Sec. 544.020, which reads: 'Whenever complaint shall be made, in writing and upon oath, to any magistrate setting forth that a felony has been committed, and the name of the person accused thereof, it shall be the duty of such magistrate to issue a warrant * * *.' He insists that there is no showing that the prosecuting attorney was a 'credible witness' having knowledge of the facts.
It is not necessary that the prosecuting attorney have firsthand knowledge of the crime alleged in order to be qualified to make the complaint. S.Ct. Rule 21.08. See also State on inf. McKittrick v. Wymore, 345 Mo. 169, 132 S.W.2d 979, 987 [15, 16]; State v. Thomas, 353 Mo. 345, 182 S.W.2d 534, 539 . Moreover, the record is clear that following arrest (and, we may assume, preliminary examination under Sec. 544.420 or waiver thereof under Sec. 544.250--the record does not show) defendant, as provided by Sec. 544.250, was charged on information filed in the circuit court by the prosecuting attorney with the offense charged in the complaint filed in the magistrate court and that thereafter defendant, upon arraignment in open court with his counsel present, entered plea of not guilty and announced ready for trial. In so doing, he waived the herein alleged invalidity of the complaint upon which the warrant for his arrest was issued. State v. Richardson, Mo., 347 S.W.2d 165, 169, cert. den. 83 S.Ct. 953, 372 U.S. 954, 9 L.Ed.2d 978.
Defendant's contention that he did not have effective assistance of counsel and did not therefore receive a fair trial presents a vexing problem, due, in part at least, to the confusing state of the record in the robbery case. His contention in that regard stems from the fact that the trial court appointed Honorable Warren E. Hearnes, an experienced trial lawyer, to represent defendant. But, when the case came to trial Mr. Hearnes' associate, Mr. James E. Spain, who at that time had been admitted to the Bar less than two months, alone appeared for and represented defendant throughout the trial and, following defendant's conviction, prepared and filed defendant's motion for new trial and thereafter signed and filed defendant's notice of appeal to this court.
A duly certified photostatic copy of the minutes entered by the trial judge and made a part of the transcript herein filed, to the extent here material, shows as follows:
'9-13-1960--Comes now State by pros. atty. Def. in person custody of Sheriff, without counsel. Court finds Def. is unable to retain counsel and appoints Warren E. Hearnes to represent the Defendant. 1
'10-11-1960--Set for trial on October 19, 1960. Venire facias for 10 jurors.
'10-19-1960--Comes now State by pros. atty. Def. in person and by his retained attorney James Spain. 2 Defendant formally arraigned 'not guilty'
'Parties announce ready for trial. Jury panel sworn and questioned--Scratched--selected.
'Jury sworn to try case.'
A certified copy of the judgment and sentence rendered on November 8, 1960, recites in material part:
'Now at this time comes the State by Roderic R. Ashby, Prosecuting Attorney, also comes the defendant herein, in person, in the custody of the Sheriff of this County, and in the presence of James E. Spain, his attorney, in open Court, the said James E. Spain being associated with Warren E. Hearnes, a member of the bar of this Court, who has heretofore been appointed by the Court to represent the defendant; and the defendant, having had reasonable time and opportunity to consult with his attorney and with friends before entering upon the trial of this case, is now informed by the Court that he was tried before a jury on October 19th, 1960 said trial resulting in a verdict of guilty of robbery in the first degree and that his punishment was assessed at 50 years and being now asked by the Court if he has any legal cause to show why Judgment should not be pronounced against him according to law, and still failing to show such cause, it is therefore sentenced ordered and adjudged by the court', etc.
In the motion herein filed, defendant alleges that at 'no time did said Warren E. Hearnes contact' him but that instead Mr. Hearnes assigned the defense of the case to his partner, Mr. Spain; that if Mr. Hearnes had represented defendant as ordered he (defendant) would have been afforded the same consideration as was his co-defendant, Raymond Herron, who, on change of venue to Cape Girardeau County 'was allowed by the same prosecuting attorney * * * to plead guilty to a charge of stealing over fifty dollars' and was sentenced to imprisonment for a term of eight years; that at no time did defendant hire Mr. Spain as his attorney; and that Mr. Spain was 'just out of law school and not versed in law' as was Mr. Hearnes; and that Mr. Spain did not cause to be subpoenaed or interview or place upon the witness stand in behalf of defendant certain witnesses whose names defendant allegedly furnished to him, thereby depriving defendant of a just and fair trial.
Defendant's motion further states: ...
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Smith v. Wyrick, 82-0916-CV-W-1-R
...results in the waste of appellate judicial time and in further litigation in both the State and federal courts. See also State v. Herron, 376 S.W.2d 192 (Mo.Sup.1964), and State v. Gee, 408 S.W.2d 1 (Mo.Sup.1966), both of which were decided before Missouri's Rule 27.26 was amended in 1967, ......