State v. Morton

• Decision Date: 14 July 1969
• Docket Number: No. 1,No. 53759,53759,1
• Parties: STATE of Missouri, Respondent, v. David Louis MORTON, Appellant
• Court: Missouri Supreme Court

Page 420

444 S.W.2d 420

STATE of Missouri, Respondent, v. David Louis MORTON, Appellant.

No. 53759.

Supreme Court of Missouri, Division No. 1.

July 14, 1969.

Springfield Baldwin, St. Louis, Court appointed for defendant-appellant.

Norman Anderson, Atty. Gen., of Missouri, Ben Ely, Jr. Special Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

STOCKMAN, Judge.

The defendant David Louis Morton was charged by indictment with the offense of first-degree robbery with a dangerous and deadly weapon and was found guilty by a jury. The court found the defendant had been convicted, sentenced and imprisoned for the commission of prior felonies as pleaded in the indictment and sentenced him to twenty-three years in the custody of the Department of Corrections. The defendant was credited with the time spent in jail prior to conviction. He was permitted to appeal as an indigent and is represented here by the same court-appointed counsel that represented him at the trial. On appeal he makes eight assignments of error with several subdivisions.

About 11 a.m., January 22, 1967, the K & G Market, 5101 St. Louis Avenue in the City of St. Louis was robbed of $500 by two men, one of whom was identified at the trial as the defendant. The defendant's companion displayed a gun which was used to put the owner and others in fear. Prior to announcing the robbery, the defendant looked at various articles in the store, pretended to shop and placed some articles of merchandise in a shopping basket. After the store was comparatively clear of customers, the defendant went behind the counter and took the money. After the robbers left, the police were called and among other things they investigated the articles which the defendant had placed in the basket. Fingerprints found on a box of cake mix were compared and found to be those of the defendant. When arrested the defendant stated to police officers that he had not been in the store for more than a year. The defendant did not testify but adduced evidence by other witnesses tending to prove an alibi and that he had been in the store in December 1966 and had handled merchandise.

The defendant does not directly challenge the sufficiency of the evidence but asserts that he was entitled to a directed verdict because reasonable men might reasonably differ as to whether the defendant was guilty or innocent and that there was a reasonable doubt as to his innocence as a matter of law on the entire record. These assertions are more in the nature of an attack on the weight of the evidence which were questions for the jury. As stated, there was direct evidence identifying the defendant as one of the robbers and his fingerprints were found on an item of merchandise which he had handled according to the state's evidence. The evidence is substantial and clearly sufficient to support the verdict of guilty. The trial court did not err in refusing to direct a verdict of acquittal.

Several points of the defendant's brief on appeal pertain to his claim that he is entitled to be discharged because he was not tried within the time provided by the rules of this court and the statutes of the state. Some of the points are overlapping and redundant. First he says that he was not tried within the time required by S.Ct. Rule 25.01, V.A.M.R., and § 545.780, RSMo 1959, V.A.M.S. The rule is a rescript of the statute. The rule and the statute provide that all indictments and informations shall be tried at the term at which the indictment is found or the information is filed, if the defendant is in custody or appears as such term, or at the first term at which the defendant appears, unless the same be continued for cause. This rule and statute and other related rules and statutes must be considered and construed together. State v. Malone, Mo., 301 S.W.2d 750, 755(1).

Four other statutes, §§ 545.890 through 545.920 prescribe the standards under which a defendant is entitled to be discharged if he is not brought to trial in the time and manner therein provided. They are in the nature of special statutes of limitation and have no counterpart in the supreme court rules. A judgment of discharge pursuant to these statutes operates as an acquittal, may be pleaded in bar of another prosecution and cannot be appealed by the state. State v. Wear, 145 Mo. 162, 46 S.W. 1099, 1105. These statutes in effect limit the number of continuances that may be granted the state 'for cause' under § 545.780 and Rule 25.01.

Section 545.890 provides in substance that if a person under indictment and in custody shall not be brought to trial before the end of the second term after the indictment is found, he shall be entitled to be discharged unless the delay shall happen on the application of the prisoner or shall be occasioned by want of time to try the cause at such second term. Section 545.920 provides that in cities or counties in which there shall be more than two regular terms of the court having jurisdiction of criminal cases, the defendant shall not be entitled to be discharged for the reasons and under the circumstances mentioned in § 545.890 until the end of the third term after the indictment was found, and under the circumstances mentioned in § 545.900 the defendant shall not be discharged until the end of the fourth term after the indictment was found, and in either case the matter of discharge shall at the end of such third and fourth terms be governed by the provisions of § 545.910. Section 545.900 provides for three terms instead of two before discharge if the defendant is on bail. Section 545.910 permits the court to grant an additional term before discharge if it shall be satisfied that the state has been diligent and there is material evidence which the state can produce at a succeeding term.

The defendant was in custody when the indictment was returned and the City of St. Louis has five regular terms of court. Sec. 478.263. Therefore, § 545.920 is applicable and the defendant was entitled to be discharged at the end of the third term if the trial was not delayed on the defendant's application or by want of time to try the cause. State v. Malone, Mo., 301 S.W.2d 750, 755(4); State v. Newstead, Mo., 280 S.W.2d 6, 10(9), cert. den. 351 U.S. 956, 76 S.Ct. 857, 100 L.Ed. 1479.

The term at which the indictment or information is filed is properly excluded in computing the time in which the defendant must be brought to trial under §§ 545.890--545.920. State v. Malone, Mo., 301 S.W.2d 750, 755(3); State v. Newstead, Mo., 280 S.W.2d 6, 10(9), cert. den. 351 U.S. 956, 76 S.Ct. 857, 100 L.Ed. 1479; State ex rel. Stevens v. Wurdeman, 295 Mo. 566, 246 S.W. 189, 192--193(1); State v. Wigger, 196 Mo. 90, 94, 93 S.W. 390, 391. Furthermore, the resetting or continuance of a criminal case within a term or to an adjourned term is not a continuance within the purview of §§ 545.890--545.920 limiting the number of terms that the state has to bring a defendant to trial after the indictment or information is filed. State ex rel. Billings v. Rudolph, 322 Mo. 1163, 17 S.W.2d 932, 934(5); State v. Farrar, 206 Mo.App. 339, 227 S.W. 1078, 1079(3).

S.Ct. Rule 25.01 and § 545.780 specifically authorize continuances 'for cause' and do not purport to be a limitation of the criminal action. The time and manner in which continuances on behalf of the state will entitle the defendant to be discharged are provided by §§ 545.890--545.920. The trial court did not err in refusing to discharge the defendant because of the provisions of Rule 25.01 and § 545.780. State v. Barlish, Mo.App., 421 S.W.2d 558, 559(2), 563(6, 7).

Our next inquiry is whether the defendant was brought to trial within the three terms allowed after the term at which he was indicted; in other words, whether he is entitled to the protection of the special statute of limitations provided by §§ 545.890 and 545.920. The five terms of the Circuit Court of the City of St. Louis begin on the first Mondays of February, April, June, and December, and on the second Monday of September. Sec. 478.263, RSMo 1959, V.A.M.S. In 1967, the terms began on February 6, April 3, June 5, September 11 and December 4.

The first indictment was filed March 9, 1967, during the February term. On March 16 the defendant appeared with counsel from the Public Defender Bureau and entered a plea of not guilty. The trial was set for April 17 which was at the April term. The defendant did not request a setting at the February term and made no objection to the April 17 setting. Shortly before the trial setting, the first court-appointed counsel was appointed to a state office and was permitted to withdraw. Present counsel was then appointed and the cause was reset for May 22 which was still within the April term. Counsel stresses these resettings within the term, but as previously indicated we are only concerned with the continusances from term to term. It is sufficient for our purpose that the cause was continued from the April to the June term on behalf of the state. The defendant made no objection as to the form of application at the time the order of continuance was entered. S.Ct. Rule 25.08(b).

A trial which began on June 6 ended in a mistrial declared on motion of the defendant. The cause was then continued by the court to the September term 'for want of time to try'. On the setting of September 18 at the September term, the defendant announced ready for trial. The prosecution stated that the attorney assigned to prosecute the case had been injured in an automobile accident and could not be present until a couple of days later. When the court indicated the trial must proceed, the state entered a nolle prosequi. The defendant was re-indicted on October 17 at the September term. He was arraigned and the trial was set for December 11 at the December term on which date the trial was begun and prosecuted to a conclusion.

The rule in Missouri is that when a nolle prosequi is entered in a criminal case and a...