State v. King, 50245
| Decision Date | 08 June 1964 |
| Docket Number | No. 50245,No. 2,50245,2 |
| Citation | 379 S.W.2d 522 |
| Parties | STATE of Missouri, Respondent, v. Lester KING, Appellant |
| Court | Missouri Supreme Court |
Lester King, pro se.
Thomas F. Eagleton, Atty. Gen., Robert R. Northcutt, Asst. Atty. Gen., Jefferson City, for respondent.
This appeal was taken from an order of the Circuit Court denying a motion to vacate a judgment and sentence of 15 years for first degree robbery. The motion was filed under our Criminal Rule 27.26, V.A.M.R. As has been stated on numerous occasions, such a motion constitutes a collateral attack on the judgment and defects must be shown which render the judgment essentially void. State v. Turner, Mo., 353 S.W.2d 602; State v. Cerny, 365 Mo. 732, 286 S.W.2d 804. The appeal was filed here pursuant to our order permitting a special notice of appeal to be filed out of time. A free transcript has been furnished to petitioner as an indigent. The motion was denied on May 31, 1963, upon consideration of the motion and exhibits.
The facts leading up to this proceeding are, in substance, as follows: petitioner was charged by information filed in the Circuit Court of Phelps County with first degree robbery by means of a dangerous and deadly weapon, actually the holdup of a liquor store; he was granted a change of venue to Cole County, where he and his counsel signed and filed a written waiver of jury trial pursuant to Criminal Rule 26.01 and Art. I, Sec. 22(a) of the V.A.M.S. Constitution; with the Court's assent, trial was had without a jury. Defendant was represented by counsel. On November 17, 1955, after hearing the evidence and arguments, the Court filed declarations of law, found the defendant guilty as charged, and assessed his punishment at 15 years in the penitentiary; the Court granted defendant 30 days in which to file motion for a new trial. The record shows no such motion. On January 3, 1956, defendant was granted allocution, judgment was entered and sentence pronounced.
In considering the substance of the present motion to vacate, we shall consider also the affidavits attached and two presubmission 'Motions for Appropriate Relief.' Defendant has briefed this matter pro se, citing many authorities ranging from Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 () to a civil case in Ohio dealing with proximate and intervening causes.
Defendant now contends: (1) That while in jail at Rolla on three burglary charges he escaped and traveled to Kansas; that he was 'kidnapped' in Topeka on January 15, 1955, and brought back to Rolla, from whence he took a change of venue to Cole County; that he was there released on bond but was later rearrested in Rolla (April 26, 1955) and charged with a robbery committed in that county on April 26, 1955; that he also obtained a change of venue to Cole County on that charge, with the results as already stated; that 'manifestly movant's existing venue and jurisdiction remains yet in the State of Kansas * * *.' (2) That after his conviction and on January 3, 1956 (the date of his allocution and sentence) he was 'denied the reappointment of another attorney' to appeal his conviction, pursuant to his motion. The transcript shows no such motion, no request for any such appointment, and no reference to a desire for an appeal; in fact, no motion for new trial was filed; he also alleges, rather vaguely, that his counsel did not represent him properly at the trial and did not procure the necessary witnesses. (3) That the information was and is invalid because Jay White, the Prosecuting Attorney of Phelps County, had employed his brother, Zane White, as Assistant Prosecuting Attorney in violation of Art. 7, Sec. 6, Mo.Const., had forfeited his office, and that he was thus unauthorized to sign and verify the information. (4) That there were inconsistencies in the testimony of the State's witnesses at his trial, that one Bessie Yowell (convicted elsewhere of the same holdup) testified under duress, and that the proof was not sufficient for a conviction. Defendant has submitted an affidavit of one Everett Yowell, stating that King was drunk and unconscious in the back seat of a car at the time of the robbery.
Before considering the merits of these contentions, we note here the prior petitions filed by this defendant, as they have some bearing on the present appeal. All of these were filed as an indigent by leave of court. On June 13, 1956, he filed petition for habeas corpus in this court, raised the socalled question of 'nepotism,' alleged perjury at his trial, and alleged improper representation by counsel at his trial and thereafter. The writ was denied on July 9, 1956. Another petition for habeas corpus was filed on February 21, 1957, and denied on March 11, 1957. On December 27, 1957, he filed another such petition specifically presenting the alleged nepotism and various irregularities which he claimed had occurred at his trial. This was denied on January 13, 1958, and a April 28, 1958, the United States Supreme Court denied certiorari. In the meantime, and on August 6, 1957, a petition for habeas corpus was denied in the United States District Court for the Western District of Missouri, for the reason, among others, that his complaints were 'subject to regulation by the State Court.' Another petition for habeas corpus has been denied in this court on February 7, 1964, during the pendency of the present appeal. A petition for habeas corpus was denied by the Circuit Court of Cole County on September 9, 1959; in or about April, 1956, such a petition was also denied, it being alleged therein that defendant was denied adequate representation by counsel. Opinions in subsequent and additional proceedings against this defendant appear at 372 S.W.2d 857 (), and at 375 S.W.2d 34, although those are of no particular significance here.
The so-called 'kidnapping' of defendant in Topeka after he escaped from the Phelps County jail is of no significance whatever here. The offense which resulted in his robbery conviction was committed in Phelps County on April 26, 1955, after he had been returned to Missouri, had procured a change of venue, had been released on bond in Cole County and had voluntarily returned to Phelps County and there tangled anew with the law. If there was any 'kidnapping,' which from the record seems most improbable, that act certainly would not follow him through life like part of a 'chain of title' and invalidate all future criminal charges. Moreover, our transcript contains copies of certain extradition papers for this defendant which, although apparently incomplete, indicate that extradition was applied for. Defendant has presented these by attaching them to his present motion as exhibits, for some unexplained reason.
The assertion that defendant requested and was denied counsel to represent him upon an appeal is not corroborated in any respect by the record. Also, nothing in the record indicates that defendant expressed any desire to appeal, which, of course, he could have done pro se. We are convinced that the able and experienced trial judge...
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