State v. Kackley, s. 50927-50930

• Decision Date: 14 June 1965
• Docket Number: No. 1,Nos. 50927-50930,s. 50927-50930,1
• Citation: 391 S.W.2d 350
• Parties: STATE of Missouri, Respondent, v. Ralph Glen KACKLEY and Gaylord Robert Kackley, Appellants (four cases)
• Court: Missouri Supreme Court

Page 350

391 S.W.2d 350

STATE of Missouri, Respondent, v. Ralph Glen KACKLEY and Gaylord Robert Kackley, Appellants (four cases).

Nos. 50927-50930.

Supreme Court of Missouri, Division No. 1.

June 14, 1965.

Norman H. Anderson, Atty. Gen., Donald L. Randolph, Asst. Atty. Gen., Jefferson City, for respondent.

Taken as submitted by appellants.

HENLEY, Judge.

These are appeals in forma pauperis by defendants, prisoners in the custody of the Warden of the Missouri Penitentiary, from orders and judgments denying their joint motions to vacate and set aside prior sentences and judgments of conviction in each of four criminal cases. The allegations of the motion filed in each case are identical and identical orders were entered in each. The issues being the same, on motion of respondent, the four cases were consolidated for briefing and argument. Defendants were permitted to and did appear in this court in person and presented oral arguments in their own behalf. On consideration of the transcript of the record in each case, the brief of respondent and oral arguments we determine that one opinion will suffice to dispose of the issues in the four cases.

In each of four amended informations filed October 29, 1963, the defendants were jointly charged under the Habitual Criminal Act with convictions of prior felonies and in separate counts with (1) forgery of a check, and (2) uttering a forged check. ¹ On the same date, Count I (forgery) of each information was dismissed by the prosecuting attorney and each of the defendants admitted the prior convictions and entered a plea of guilty to each charge of uttering a forged check. The cases were numbered 9663, 9664, 9665 and 9666 in the trial court. In case No. 9663 Ralph Glen Kackley was sentenced to confinement in the custody of the State Department of Corrections for seven years; the sentence of Gaylord Robert Kackley was for a term of six years. In cases numbered 9664, 9665 and 9666, each defendant was sentenced to a like term as that imposed on him in Case No. 9663, the sentence in each to run concurrently with his sentences in the prior numbered cases.

Seven months later defendants filed their joint motions to vacate and set aside the above-mentioned sentences and judgments under and pursuant to Rule 27.26. (All references to rules are to Supreme Court Rules and V.A.M.R.) The orders and judgments of the trial court resulting in these appeals were made upon a review by it of the motions, files and records of the cases without hearing evidence, the court being satisfied from such review that the defendants were not entitled to the relief prayed. The procedure followed by the court was in accord with the provisions of Rule 27.26. State v. Kitchin, Mo., 300 S.W.2d 420, 421, certiorari denied, 354 U.S. 914, 77 S.Ct. 1299, 1 L.Ed.2d 1429.

This court reviews the matter de novo. Rule 28.05.

From the morass of entangled allegations of defendants' motions we have extracted these as the substance of their contentions in the trial court and here: that they were denied due process of law in that (1) after sentencing, their personal property was levied upon and sold under an execution for costs accrued in these cases, (2) each information was insufficient because it did not inform them of the nature of the charges against them and was duplicitous, and, (3) they were denied the assistance of counsel.

The allegation that defendants' property was levied upon and sold under an execution for costs does not state a ground for relief under Rule 27.26. Somewhat allied to this allegation is the contention that defendants' automobile and suitcases were searched and their property seized after their arrest and outside their presence without a search warrant. Perhaps the only justification for saying that the allegation and contention are somewhat allied is their close proximity within the motion although there is the rather vague suggestion that the sheriff had no right to seize the property under execution because he was not armed with a search warrant as well as the execution. There is no merit in the suggestion. It is not alleged or contended that evidence was seized by an illegal search and used against them. However, they do say, in which they describe as 'Amendments to Appeal' forwarded to this court and lodged in the files since the appeal was perfected, that the articles taken from their automobile 'were to be used as evidence.' (Emphasis added.) But that would avail them nothing even had it been alleged in their motion to vacate for it is insufficient to raise any issue cognizable under Rule 27.26. Had evidence thus acquired been used against them, the proper procedure to challenge the validity of the method used to obtain that evidence is by a timely motion to suppress the evidence; not by a collateral attack on the judgment. State v. Howe, Mo., 364 S.W.2d 546, 547, certiorari denied, 373 U.S. 943, 83 S.Ct. 1552, 10 L.Ed.2d 698.

The allegations of defendants' motions that the informations are insufficient and do not inform them of the charges against them because they are 'misleading, ambiguous and untruthful recital[s] of the facts' are conclusions and are insufficient to state grounds for relief under Rule 27.26. The motion must state facts sufficient to establish grounds for the relief contemplated by the rule; not mere conclusions. State...