State v. Mimms, 48679
| Decision Date | 09 October 1961 |
| Docket Number | No. 1,No. 48679,48679,1 |
| Citation | 349 S.W.2d 925 |
| Parties | STATE of Missouri, Respondent, v. Lee Charles MIMMS, Appellant, |
| Court | Missouri Supreme Court |
Hugh J. White, St. Louis, for appellant.
Thomas F. Eagleton, Atty. Gen., Frank P. Motherway, Sp. Asst. Atty. Gen., for respondent.
The defendant Lee Charles Mimms was, by an information, charged with robbery in the first degree 'by means of a dangerous and deadly weapon, to-wit: a pistol.' It was further alleged in the information that the defendant had previously been convicted on three separate charges of robbery in the first degree and had served prison sentences therefor. Upon a trial in the Circuit Court of the City of St. Louis, Missouri, a jury found defendant guilty of robbery in the first degree. The trial court heard evidence in support of the allegation of previous convictions and sentenced the defendant to serve forty years in the State Penitentiary. An appeal was taken to this court.
In the brief filed in this court, the defendant has made four assignments of error which are: that the evidence is insufficient to sustain the charge; that the trial court erred in not granting a continuance because of the absence of a material witness; that the court erred in not permitting the attorney for the defendant to withdraw from the case; and that the court erred in admitting the evidence of prior convictions because it was not shown that the defendant was the person named in the records of the prior convictions.
The State's evidence disclosed that a robbery was committed at about 10 o'clock on the morning of June 18, 1960, at the office of the Parkway Motors located at 4162 Natural Bridge Avenue, St. Louis, Missouri. Freddie Clemmons, the owner of the business, and Lee Haney, an employee, were on duty that morning. Two men identified as the defendant and a man named Taylor came to the office. Each had a gun. The defendant announced, 'This is a stick-up.' It was shown that about $580 in cash, a ring valued at $1,500, some checks, and a watch valued at about $500 were taken.
Defendant did not take the witness stand. His wife testified that defendant was at home on the morning of the robbery and could not have been at the Parkway Motors. Three witnesses for the State testified that Mimms was one of the men who committed the robbery. When Mimms was arrested, his apartment was searched but no stolen property was found. When Taylor was arrested, he was wearing a watch which according to the State's evidence was the watch taken in the robbery by Mimms. Mimms claimed mistaken identity. It is apparent that the question of whether Mimms took part in the robbery was for a jury.
On the morning of the day the case was set for trial, November 21, 1960, defendant's attorney made an oral motion for a continuance on the ground that a material witness could not be present; that the witness was pregnant and was expecting to be removed to a hospital. The name of the witness was given by the attorney as Mrs. S_____, living on Carr Street. It was stated that this witness would testify that defendant was at her home at the time the robbery took place; that a second witness was present and heard defendant talking with Mrs. S_____. At this point, the record shows the following to have occurred:
'The Court: Who is the second witness?
'Mr. White: The girl's mother.
'The Court: She can testify.
'Mr. White: She won't come in.'
The court then gave the defendant until 2 o'clock on the same day to prepare an affidavit. At 2 o'clock, an affidavit signed by the defendant was filed. In this affidavit, defendant stated that a material witness was absent and because of pregnancy could not be in court without jeopardizing her health. However, the witness named in the affidavit was a Mrs. T_____, living on Enright Avenue, and not Mrs. S_____ as mentioned in the motion made during the morning session.
The trial...
To continue reading
Request your trial
-
State v. Wilkinson
...whether counsel should be permitted to withdraw from a case is generally within the sound discretion of the trial court. State v. Mimms, Mo., 349 S.W.2d 925, 927(3). Furthermore, a convicted defendant who asserts that his attorney did not render adequate and effective legal assistance comme......
-
Grunewald v. Missouri Pacific Railroad Company
...350, 354 (1886); Carr v. Carr, 308 S.W.2d 357, 359 (Mo.App.1957); Harms v. Simkin, supra, p. 933 of 322 S.W.2d. See State v. Mimms, 349 S.W. 2d 925, 927 (Mo.Sup.1961). All this means, of course, that each case is to be viewed in the light of its particular facts. In Janousek v. French, supr......
-
State v. Hollins, KCD
...be permitted to withdraw lies within the sound discretion of the trial court. State v. Wilkinson, 423 S.W.2d 693 (Mo.1968); State v. Mimms, 349 S.W.2d 925 (Mo.1961). Similarly, the selection of counsel to represent defendant was within the discretion of the trial court, and a trial court do......
-
State ex rel. Wishom v. Bryant
... ... appointed on June 21. State v. Wilkinson , 423 S.W.2d ... 693, 697 (Mo. 1968) (citing State v. Mimms , 349 ... S.W.2d 925, 927 (Mo. 1961)) ("[T]he determination of ... whether counsel should be permitted to withdraw from a case ... ...