State v. Lahmann
| Decision Date | 14 December 1970 |
| Docket Number | No. 1,No. 55460,55460,1 |
| Citation | 460 S.W.2d 559 |
| Parties | STATE of Missouri, Respondent, v. Archie L. LAHMANN, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., John W. Cowden, Asst. Atty. Gen., Jefferson City, for respondent.
Ronald L. Boggs, Ellsworth Cundiff, Jr., St. Charles, for appellant.
HIGGINS, Commissioner.
Archie L. Lahmann was convicted by a jury of burglary, second degree, and stealing. The jury failed to agree on punishment, and the court assessed punishment at consecutive terms of five years' imprisonment for each offense. Sentence and judgment were rendered accordingly. §§ 560.070, 560.095, 560.110, V.A.M.S.; Criminal Rule 27.03, V.A.M.R.
Appellant does not question the sufficiency of evidence to support his conviction and a brief statement demonstrates a case of burglary, second degree, and stealing against him.
Carl Waldvogel managed the St. Charles Dairy Store at 2600 West Clay, St. Charles (St. Charles County), Missouri. At 11:00 p.m., June 17, 1969, he and an employee removed four to five hundred dollars in paper and coins from the cash register, put it in a moneybag and stored it in a freezer for safekeeping. They closed and locked the premises, including the gate which enclosed the refrigeration compressors at the rear of the premises.
At 1:00 a.m., June 18, 1969, Mr. Waldvogel returned to the premises with the police and found a hole cut in the ceiling immediately above the freezer where the money had been stored. Entry had been made by breaking the lock on the rear gate, going into the gable end of the building and cutting through the ceiling. The store had been 'messed up' and two moneybags and the money were missing. Mr. Waldvogel saw the moneybags and some money at the police station at 12:30, June 18, 1969, and identified them at trial. He estimated the money loss to be in excess of $400.
Roger Lee Williams lived in an apartment adjacent to the St. Charles Dairy Store premises. At 11:45 p.m., June 17, 1969, he stopped defendant and two other men as they attempted to leave in an automobile which had been parked in the street near the dairy store. He had seen the men earlier standing between the apartments. They threw something into the trunk and into the car, after which they started to drive away. He made the men get out of the car. 'The officers came and I was standing there holding them at gun point and he took my gun and he walked over and looked in the car and there was some money bags there and he reached in and picked up the money bags. * * *' Defendant was the owner and operator of the automobile. The moneybags taken from the car were identified by Mr. Williams at trial and they were the same bags identified by Mr. Waldvogel as missing from his store following its burglary.
Robert J. Boehle was the police officer who received a dispatch to the scene and relieved Mr. Williams of defendant and his other two prisoners. He looked into the automobile and 'saw two money bags and money laying on the floor board.' He took the bags and money into his custody and identified them at trial. This identification was identical to that of Mr. Waldvogel.
Reciting that 'While justice should be administered with dispatch, the essential ingredient is orderly expedition and not mere speed,' Smith v. United States, 360 U.S. 1, 10, 79 S.Ct. 991, 997, (11) 3 L.Ed.2d 1041 '* * * delay alone, unfortunate though it is, is not sufficient cause to bypass the orderly processes of judicial review,' Coppedge v. United States, 369 U.S. 438, 452, 82 S.Ct. 917, 925, 8 L.Ed.2d 21, and 'In the absence of express statutory authorization, courts have been extremely reluctant to allow proceedings more summary than the full court trial at common law,' New Hampshire Fire Ins. Co. v. Scanlon, 362 U.S. 404, 407, 80 S.Ct. 843, 845, 4 L.Ed.2d 826, appellant contends the court erred in denying his requests for continuance, to employ other counsel, and to permit counsel to withdraw.
Appellant's citations are not similar on their facts, and State v. Le Beau, Mo., 306 S.W.2d 482, 483(3), which is to say, the grant or refusal of continuance rests within the sound discretion of the trial court subject to review. State v. Belleville, Mo.App., 362 S.W.2d 77, 80(2--5); State v. Ross, Mo., 375 S.W.2d 182, 185(3--6).
The matter of continuance arises from and is for ruling under these circumstances on the record: Defendant at time of trial was 30 years old and possessed of an eighth grade education. He was first accused on June 18, 1969, and was accorded a preliminary hearing June 26, 1969. The information was filed June 30, 1969, and he was released on bond on that date. Sometime between arraignment July 7, 1969, and July 18, 1969, he employed Ronald L. , boggs as counsel and, on July 18, 1969, Mr. Boggs filed a motion to remand the cause for preliminary hearing with assistance of counsel. The motion was denied August 4, 1969, and on that date defendant, with Mr. Boggs present, entered a not guilty plea. At defendant's request the cause was continued to September 2, 1969. On September 2, 1969, defendant secured another continuance to October 6, 1969, and on that date the cause was set for trial on November 25, 1969. Defendant was being held in jail in St. Louis after August 17, 1969, on charges in that jurisdiction.
Defendant appeared with counsel for trial November 25, 1969, at which time Mr. Boggs, when asked if ready for trial, stated that he had been advised by defendant the previous evening that he no longer wished him as counsel. 'He further disclosed to me this morning * * * that he did not trust me and he hasn't told me everything about the case.' Defendant stated, 'I just don't feel that he can handle the case because I haven't told him everything, and he was the only lawyer I could find to get the case at the present time.' The court indicated that none of this colloquy constituted any lawful reason not to proceed to trial with Mr. Boggs as counsel. Mr. Boggs then requested leave to withdraw, after which the court granted a 15-minute recess for Mr. Boggs and his client 'to determine whether or not there are matter(s) * * * that have been undisclosed to you that might affect your ability to proceed. * * *'
After the recess Mr. Boggs recited that he had * * *'
The court then granted leave to be heard on a motion to suppress 'at this time or to have any voir dire examination prior to the...
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