State v. Kellar

• Decision Date: 14 December 1932
• Docket Number: No. 32415.,32415.
• Citation: 55 S.W.2d 969
• Parties: STATE v. KELLAR.
• Court: Missouri Supreme Court

55 S.W.2d 969

STATE v. KELLAR.

No. 32415.

Supreme Court of Missouri, Division No. 2.

December 14, 1932.

Appellant's Motion for Rehearing Overruled December 31, 1932.

Appeal from Circuit Court, St. Louis County; Robert W. McElhinney, Judge.

James William Kellar, alias Charles Harold Campbell, was convicted, on a plea of guilty, of murder in the first degree, and he appeals.

Judgment affirmed.

James S. McClellan, of St. Louis, for appellant.

Stratton Shartel, Atty. Gen. (Lieutellus Cunningham, of Jefferson City, of counsel), for the State.

COOLEY, C.

Defendant was charged by information in the circuit court of St. Louis county with the crime of murder in the first degree for the killing in said county of one Etta Sauer. Upon arraignment he entered a plea of not guilty. Later he withdrew that plea and entered a plea of guilty. The court assessed the death penalty. Defendant filed motion asking leave to withdraw his plea of guilty and plead not guilty, which after a hearing the court denied. Defendant was then duly sentenced to death upon his plea of guilty. There is no error in the record proper. Defendant appeals, charging error in the court's refusal to permit withdrawal of the plea of guilty. Such action of the court is the only matter presented for review on this appeal.

The information charges the murder to have been committed January 4, 1932, by striking and beating said Etta Sauer on the head and body with a piece of iron pipe. The information was filed January 16, 1932. Defendant was arraigned and entered a plea of not guilty on January 22, and the cause was set for trial for March 21. On February 29, defendant, through his attorney, made application to the court for the appointment of a commission of physicians or alienists to examine defendant as to his sanity. The court refused to make such appointment, but on March 20 defendant was examined by two alienists, one chosen by himself and one by the state. This examination will be referred to later.

On March 21, the day the cause was set for trial, defendant being present with his attorney, the state answered ready for trial. Defendant thereupon, through his counsel, made known to the court that he desired to withdraw his plea of not guilty and enter a plea of guilty. A conference was then held in the judge's chambers between the judge, defendant's attorney, and three attorneys representing the state. After this conference the judge resumed the bench, defendant withdrew his plea of not guilty, and entered a plea of guilty as charged in the information. The court announced that the sentence "will be death by hanging," but did not then formally pronounce sentence. The court asked defendant if he had any reason to show why sentence should not then be pronounced. Defendant's counsel replied that he thought there was justification for asking the clemency of the court. He stated further: "By the purview of this case, Your Honor, it does look as though the defendant were guilty of premeditated willful murder. As I have already told Your Honor, there are circumstances in this case that I do believe suggest the use and the exercise of clemency by this Court." The court replied: "That may be taken up with the court later, at some future date. Sentence will be deferred." Sentence was thereupon deferred for two weeks.

On March 31, defendant filed his motion to withdraw his plea of guilty, which motion, omitting caption, is as follows:

"Comes now James William Kellar, defendant in the above entitled cause and through his attorney moves this Court to permit said defendant to withdraw his plea of guilty, heretofore entered herein, and to have a trial upon the issues, for the following reasons, to-wit:

"1. That said defendant at the time he entered his plea of guilty was aware of the hostile public sentiment that had been directed against him by reason of the circumstances surrounding the crime, with the commission of which he is charged in the information, and believed he could not obtain a fair and impartial trial by reason of said public opinion and that acting under the misapprehension of the legal consequences attendant thereon he entered his plea of guilty in said cause.

"2. That said defendant was not informed by this Court at the time said plea of guilty was entered of the legal consequences that might be attendant upon the entering of said plea.

"Wherefore, defendant prays this court to permit him to withdraw his plea of guilty heretofore entered herein and to stand trial on the issues of said cause."

Said motion was heard by the court on April 2, Defendant did not testify nor present any affidavit. The only evidence offered by him in support of the motion was the testimony of his attorney, Mr. McClellan, who testified in chief as follows: "My name is James McClellan, and I am attorney for James Kellar in this case. On March 21, 1932, I was in the chambers of Judge McElhinney discussing the matter of entering a plea of guilty in this case. At no time was I advised that the probable or possible legal consequences of a plea of guilty would result in a sentence of death."

On cross-examination he testified in substance: That he was a practicing lawyer, had been retained to represent defendant in this case, and had represented him as his attorney for a month or more before the plea of guilty was entered; that on February 9 (29?), he had made application for the appointment of a commission to examine the defendant as to sanity, which was denied; that defendant was examined as to his sanity on March 20, 1932, by Dr. Unterburg, chief of staff of the Alexian Brothers Hospital, and Dr. Francis Barnes, an alienist of St. Louis, in the presence of witness and others, the examination lasting about three hours, Dr. Unterburg having been selected by the witness and Dr. Barnes by the state. The state offered to prove by the witness that both doctors found the defendant to be sane. The defendant objected, his counsel stating: "I do not see any purpose in the admission of such testimony as that. I am not making any defense here on insanity whatever. I am asking to be allowed to withdraw the plea of guilty." The court sustained the objection.

Proceeding, witness testified that when the case was called on March 21, the state answered ready, and witness, as defendant's attorney, informed the court that defendant desired to plead guilty; that he (McClellan) then knew that the punishment prescribed by statute for first-degree murder was either life imprisonment or death by hanging; that the court thereupon said he would "take up the matter" later and that after the docket was called that morning a "consultation" took place in the judge's chambers, there being present Messrs. Ziercher, Noble, and Castlen, counsel for the state, Mr. McClellan for the defendant, and the judge; that the judge did not then, or at any time before the plea of guilty was entered, indicate what the sentence would be if such plea were entered; he was not asked to do so; that counsel for the state at the conference said the state intended to ask and would ask for the death penalty, and at all times maintained that attitude.

"Q. In the face of those things you had Mr. Kellar enter a plea of guilty in this case? A. That is right.

"Q. After the judge considered this matter in chambers by himself for an hour and a quarter, he assumed the bench again, did he not, at which time the defendant was arraigned, and at that time the defendant pleaded guilty as charged? A. Yes, sir." (Note.—The defendant had been arraigned when he entered the original plea of not guilty.)

This testimony followed:

"Mr. McClellan (testifying): Mr. Ziercher, and if the Court please, I notice in the first statement I made I say at `no time advised'; I didn't mean you had not advised me, but I meant the court had not advised me, so I would like, with your permission, to amend my original statement.

"Mr. Ziercher: The Court had not advised—

"The Witness: As to the possible legal consequences.

"Mr. Ziercher: You knew that sentence might be fixed at death, did you not?

"The Witness: Yes. Mr. Ziercher, I will again ask your permission to amend that original statement; it is not accurate and it is not what I mean. I stated originally I was at no time advised what the probable legal consequences might be in the chambers, I wish to amend that, that I was at no time advised by the Court of the possible legal consequences, and that is what I intended to state.

"Mr. Ziercher: I will let the court rule on that.

"By the Court: Q. Mr. McClellan, what did the Court advise you when you spoke about withdrawing the plea of not guilty, and entering a plea of guilty? What did the Court state to you? A. As I recall that, part of the words you used were, it was putting a large or heavy burden on you.

"Q. I will ask you, if the Court did not state to you, on several occasions, both before and after the reading an alleged confession in this case, that the Court would rather have a jury pass on the matter? A. You stated that to me; yes, sir."

The foregoing was all the evidence offered, except that the state offered and read the record entries in the cause. The record entry on March 21 reads: "On March 21, 1932, defendant being in court, with his attorney, withdraws his former plea of not guilty and pleads guilty as charged. Punishment assessed at death by hanging. Allocution granted defendant. Sentence deferred until April 4, 1932."

In argument to the court following the introduction of the evidence on the motion, Mr. Ziercher said that he had told defendant's attorney when the latter expressed his intention of pleading guilty that it was placing a terrible burden upon the shoulders of the court and that Mr. McClellan replied: "I am going to enter a plea of guilty regardless of that fact." Mr. McClellan did not deny the statement.

At the close of the hearing the court took the matter under advisement, and two days later, on April 4,...