State v. Morton
| Decision Date | 09 October 1961 |
| Docket Number | No. 2,No. 48762,48762,2 |
| Citation | 349 S.W.2d 914 |
| Parties | STATE of Missouri, Respondent, v. Walter Lee MORTON, Appellant |
| Court | Missouri Supreme Court |
Walter Morton, appellant, pro se.
Thomas F. Eagleton, Atty. Gen., Edward A. Glenn, Sp. Asst. Atty. Gen., for respondent.
STOCKARD, Commissioner.
This is an appeal from the judgment of the Circuit Court of Jackson County overruling appellant's motion filed pursuant to Supreme Court Rule 27.26, V.A.M.R.
Appellant was tried and found guilty of robbery in the first degree. The information charged and the evidence established two prior felony convictions. Pursuant to Section 556.280 RSMo 1959, V.A.M.S., as amended in 1959, the trial court determined and fixed the punishment after the jury returned its verdict of guilty. Appellant appealed from that judgment and it was affirmed by this court. State v. Morton, Mo.Sup., 338 S.W.2d 858. Appellant has now filed in the trial court, pro se, a motion pursuant to Supreme Court Rule 27.26 to vacate the sentence and judgment, and he has appealed from the judgment of the trial court overruling that motion.
The contents of the motion demonstrate a misunderstanding of the purpose and scope of Rule 27.26. The substance of the first and third contentions in appellant's motion under Rule 27.26 is as follows: the verdict-directing instruction did not require the jury to find that the property which was taken 'did belong to the person,' and in that way the 'court got across to the jury its view of the evidence as it should be considered, and constituted a comment upon the evidence;' and the trial court 'erred by holding as a matter of law that the property allegedly taken constituted 'robbery' for the reason that the state's evidence shows conclusively that 'no-force' was employed by [appellant] preceding the taking.' We note from the reported opinion in the previous appeal that these matters were not presented to the trial court in a motion for new trial, and of course were not considered on the appeal.
These contentions obviously relate only to alleged trial errors. If appellant desired a review of the sufficiency or correctness of an instruction given at the trial or a review of the sufficiency of the evidence to sustain a finding of robbery in the first degree, he should have made proper complaint in his motion for new trial. In that event we would have ruled his contentions when the case was here on appeal from the original judgment of conviction. Rule 27.26 does not afford a basis for review of trial errors such as appellant has set forth nor does it subject the judgment of conviction and sentence to a collateral attack for such errors. State v. Childers, Mo.Supp., 328 S.W.2d 43; State v. Rutledge, Mo.Sup., 317 S.W.2d 365. We might add that an examination of the transcript in the previous appeal discloses that the instruction required the jury to find that appellant made a felonious assault upon one Dave Zusman with a deadly and dangerous weapon, a pistol, and that appellant took and carried away property from his person or in his presence with the intent to deprive the 'said Dave Zusman of his ownership' without his consent. The statement by this court of the evidence adduced at the trial clearly demonstrates that the contention now made as to the sufficiency of the evidence is without merit. Therefore, the contentions of appellant would be unavailing even if they could now be presented for review by use of a motion made pursuant to Rule 27.26.
Prior to the 1959 amendment to Section 556.280 (Laws of Missouri 1959, S.B. No. 117) evidence of prior convictions, imprisonment and discharge of a defendant charged under...
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...errors, State v. Schaffer, Mo., 383 S.W.2d 698; State v. Worley, Mo., 371 S.W.2d 221; State v. Mallory, Mo., 349 S.W.2d 916; State v. Morton, Mo., 349 S.W.2d 914; State v. Wiggins, Mo., 360 S.W.2d 716; nor does defendant on this point even approach the position of establishing any trial The......
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... ... State v. Mallory, supra, 349 S.W.2d 916, 917[2, 3]; State v. Morton, Mo.Sup., 349 S.W.2d 914, 915; State v. Wiggins, Mo.Sup., 360 S.W.2d 716, 718[1, 2]; State v. Turner, Mo.Sup., 353 S.W.2d 602, 603; State v. Thompson, Mo.Sup., 324 S.W.2d 133, 135, et seq ... Appellant further contends 'that his court appointed counsel so mishandled the case that ... ...
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...Statler, Mo., 331 S.W.2d 526. Issues which have once been fully adjudicated do not constitute grounds for collateral attack. State v. Morton, Mo., 349 S.W.2d 914; State v. Thompson, Mo., 324 S.W.2d 133; State v. King, Mo., 380 S.W.2d 370. The voluntary nature of the confession has been adju......
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