State v. Medley, 39155.

• Decision Date: 05 February 1945
• Docket Number: No. 39155.,39155.
• Citation: 185 S.W.2d 633
• Parties: STATE, Defendant in Error. v. MAX M. MEDLEY, Plaintiff in Error.
• Court: Missouri Supreme Court

185 S.W.2d 633 STATE, Defendant in Error.
v.
MAX M. MEDLEY, Plaintiff in Error. No. 39155. Supreme Court of Missouri. Division Two, February 5, 1945. Rehearing Denied, March 5, 1945.

Writ of Error to Bates Circuit Court. — Hon. Dewey P. Thatch, Judge.

AFFIRMED.

Max M. Medley, pro se, for plaintiff in error.

(1) The information is fatally defective in that it fails to charge all the essential elements of robbery in the first degree. Sec. 4450, R.S. 1939; State v. Lasky, 133 S.W. (2d) 334; State v. Weinhardt, 161 S.W. 1151; State v. Roderman, 248 S.W. 964; State v. Smith, 68 S.W. (2d) 696. (2) If it be true that appellant was sufficiently charged with robbery in the first degree, and that he was convicted and sentenced upon said charge, then the judgment is null and void and operates to imprison appellant without due process of law, in violation of the Federal Costitution, by reason of the fact that he was not represented by counsel and was denied the aid of counsel by the trial court. Amendment 14, U.S.C.A., Sec. 1; Powell v. Alabama, 287 U.S. 45; Chambers v. State of Florida, 60 S. Ct. 472; 1 Cooley's Const. Lim. (8 Ed.) 700; Johnson v. Zerbst, 58 S. Ct. 1019.

Roy McKittrick, Attorney General, and Aubrey R. Hammett, Jr., Assistant Attorney General, for respondent.

(1) Only the record proper is before this court for review, since no bill of exceptions has been filed in this case. Sec. 4151, p. 342, Laws 1941; State v. Hardy, 98 S.W. (2d) 593, 339 Mo. 897; State v. Day, 124 S.W. (2d) 1189. (2) The information is sufficient in form and substance and fully apprises the defendant of the crime charged. Sec. 4450, R.S. 1939; State v. Sharpe, 326 Mo. 1063, 34 S.W. (2d) 75; State v. Kennedy, 154 Mo. 268, 55 S.W. 293; State v. Affronti, 292 Mo. 53, 238 S.W. 106. (3) The judgment and sentence is in proper form and complies with the law in every respect. Sec. 4453, R.S. 1939.

ELLISON, P.J.

This case was brought here by writ of error to review the conviction of the plaintiff in error (hereafter called the appellant) on a plea of guilty in the Bates county circuit court, the information charging robbery in the first degree in violation of Sec. 4450.¹ We are not fully informed as to the facts because the record brought up is only the record proper. No bill of exceptions preserving the evidence is presented. Indeed, for that reason defendant has moved that the record here be amended by striking out his written confession, which was sent up with the other papers. The punishment for the crime ranges from life to five years imprisonment in the penitentiary. Sec. 4453. The punishment assessed by the trial court was fifty years. Two assignments of error are made: (1) that the information is fatally defective; (2) that defendant was convicted without due process because he was not represented by counsel in the trial court and was denied the benefit of counsel.

[1] The pertinent part of Sec. 4450 reads as follows:

"Every person who shall be convicted of feloniously taking the property of another from his person, or in his presence, and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person; ... shall be adjudged guilty of robbery in the first degree."

The prosecuting attorney's information was as follows:

"Theo. R. Schneider, Prosecuting Attorney within and for Bates County, Missouri, upon his oath of office and information informs the Court that on or about the 20th day of August, 1943 in the Township of Osage, at the County of Bates and State of Missouri, one Max M. Medley in and upon one Anna M. Wilson unlawfully and feloniously did make an assault, and one 1938 Plymouth Coach automobile, Motor No. P8-210991, of the value of four hundred...