State v. Martin
| Decision Date | 08 November 1965 |
| Docket Number | No. 51231,No. 1,51231,1 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Carl Alda MARTIN, Defendant-Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, Martin M. Lipsitz, Special Asst. Atty. Gen., St. Louis, for respondent.
Graham & Hawkins, by David Brydon, Jefferson City, for appellant.
Defendant, Carl Martin, was convicted of escaping from a State institution, in which he was lawfully confined, by a jury in the Circuit Court of Cole County, Missouri, and his punishment was assessed at two years in the custody of the State Department of Corrections. V.A.M.S., Sec. 557.351 (). Following rendition of judgment and imposition of sentence in accordance with the verdict, an appeal was perfected to this Court.
On September 8, 1964, defendant was arraigned, was given an opportunity to exercise his right to be represented by counsel, defendant requested the trial court to appoint counsel in his defense, and counsel was appointed.
On September 17, 1964, defendant filed a Motion for Change of Venue from Cole County, Missouri, which was denied. Defendant, on October 7, 1964, entered a plea of not guilty.
The trial began on October 22, 1964, in the Circuit Court of Cole County, Missouri. Prior to trial, defendant asked that his court-appointed counsel withdraw from the case and that defendant be given counsel of his own choosing. A hearing was held in the trial court and his request was denied. Also, prior to trial, and with leave of court, the Information was amended so as to name defendant as 'Carl Martin' rather than 'Carl Alda Martin.' The trial then proceeded before a jury.
Harry Lauf, clerk and custodian of the records of the Department of Corrections, identified copy of Sentence and Judgment on Plea of Guilty, Without Counsel, in the Circuit Court of Boone County, Missouri. This document, dated March 5, 1964, showed one Carl Martin entered a plea of guilty to uttering a forged instrument and was sentenced to two years in an institution to be designated by the Department of Corrections of the State of Missouri. Lauf also identified records showing defendant was received at the Missouri State Penitentiary on April 2, 1964, and subsequently was assigned to Algoa Intermediate Reformatory on May 5, 1964. Lauf stated that he had no records in his custody showing that the Boone County judgment had been set aside.
Cecil Riley, an officer at Algoa, testified that about 7 p. m. the evening of July 6, 1964, he was stationed on a watch tower inside a fence which extended around all of the buildings at Algoa. He saw three inmates outside the fence and observed them running east through a cornfield. Two of them ran across the railroad tracks and one stopped down by the railroad tracks. Riley sounded the alarm. Later, two of the inmates were captured on a hill beyond the railroad tracks and the other inmate was captured along the railroad tracks. The railroad is not on Algoa property. Riley identified the defendant in the courtroom as one of the inmates captured thereafter and returned to custody.
Calvin Beard, assistant superintendent at Algoa, testified that he captured one inmate after the inmate walked down the tracks. This inmate came out of the weeds and surrendered. Beard identified defendant as the man he captured. Defendant was apprehended a half-mile off the Algoa property. Beard, in company with one Lloyd Tatlock and one Herbert Rueff, employees at Algoa, returned defendant to Riley at the Algoa Administration Building. Tatlock and Rueff corroborated Beard's testimony and both stated that they knew defendant.
Defendant has filed no brief here. However, we will review all assignments of error properly preserved in his Motion for a New Trial and essential portions of the record. Rules 27.20 and 28.02 V.A.M.R.; State v. Deutschmann, Mo.Sup., 392 S.W.2d 279.
First, defendant alleges that he was denied his constitutional rights under the 1945 Missouri Constitution and under the Fifth Amendment to the Constitution of the United States because he had no hearing before a grand jury and was tried under an information rather than under an indictment. In State v. Cooper, Mo.Sup., 344 S.W.2d 72, 74, 75, this Court stated: . There is no merit in defendant's allegation of error.
Defendant next attacks the form and substance of the Information, The Information reads as follows: 'INFORMATION James T. Riley, Prosecuting Attorney within and for Cole County, Missouri, upon his oath of office informs the Court and charges as follows:
'That Carl Martin was duly convicted in the Circuit Court of Boone County, Missouri, of the crime of uttering a forged instrument, an offense punishable by imprisonment in the penitentiary, and in accordance with said conviction, Carl Martin was, on the 5th day of March, 1964, duly sentenced by said Court to imprisonment for a term of two years, and in accordance with said judgment and sentence, he was duly imprisoned in the Missouri State Penitentiary.
'That thereafter, on the 6th day of July, 1964, at Cole County, Missouri, the defendant, Carl Martin, was lawfully confined in the Intermediate Reformatory, an institution under the control of the State Department of Corrections of the State of Missouri, and the said Carl Martin did unlawfully and feloniously escape therefrom and go at large, against the peace and dignity of the State.
'/s/ James T. Riley
James T. Riley
'Comes now James T. Riley, Prosecuting Attorney within and for Cole County, Missouri, and upon his oath deposes and says that all the facts and matters set forth and contained in the foregoing Information are true according to his best information, knowledge and belief.
'/s/ James T. Riley
James T. Riley
'Subscribed and sworn to before me this 7th day of August, 1964.
'/s/ Guy M. Sone
Clerk of the Circuit Court
(SEAL)
'WITNESSES FOR STATE
Harry Lauf
Ray French
Lloyd Tatlock
Cecil Riley
H. H. Rueff
Calvin Beard'
Defendant contends that the Information is insufficient in that it fails to show upon its face that it was signed by the Prosecuting Attorney. sEe Section 545.240 RSMo 1959 and Rule 24.16 V.A.M.R. Defendant's contention is not supported by the record.
Defendant next contends that the Information fails to show upon its face that the Prosecuting Attorney had before him a copy of an indictment or a copy of an information from Boone County, Missouri, showing that this defendant was legally and lawfully charged with the crime of uttering a forged instrument or that the defendant was legally and lawfully confined under the control of the Department of Corrections under said charge. Defendant's contention is without merit.
The next contention made by defendant is that the Information fails to show upon its face that it was legally and lawfully made upon the oath of the Prosecuting Attorney so as to charge defendant with the crime of escape or to sustain the State's charge of escape or to show that this defendant was illegally or unlawfully at large from State property. Defendant also contends that the Court erred in failing to quash the Information alleging that the Information is so vague and indefinite that it does not sufficiently inform the defendant of the charge against him.
The record shows that the Information was made on the oath of the Prosecuting Attorney and fully informed the defendant of the offense of which he stood charged. V.A.M.S. Sec. 557.351. (Added Laws 1959, H.B. No. 10, Sec. 1, as amended Laws 1961, p. 331, Sec. 1.)
Defendant's next contention is that the trial court erred in refusing to grant defendant a change of venue from Cole County, Missouri. Defendant alleged in his Motion for Change of Venue that '* * * the minds of the inhabitants of Cole County are so prejudiced against inmates of the Missouri Department of Corrections charged with escape in general and this defendant in particular that he cannot obtain a fair trial here.' Five residents of Cole County made affidavits alleging that the...
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