State v. Nolan
| Decision Date | 10 July 1967 |
| Docket Number | No. 52299,No. 2,52299,2 |
| Citation | 418 S.W.2d 51 |
| Parties | STATE of Missouri, Appellant, v. Walter E. NOLAN, Respondent |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Howard L. McFadden, Asst. Atty. Gen., Jefferson City, for appellant.
Orville Richardson, St. Louis, for respondent.
PRITCHARD, Commissioner.
Upon petition of respondent, here and in the trial court represented by able appointed counsel, respondent's 1943 conviction and sentence of fifty years assessed by a jury for robbery in the first degree was by the trial court set aside and a new trial was ordered. Respondent's conviction was affirmed by this court, State v. Nolan, Mo., 171 S.W.2d 653. The state's right of appeal in proceedings such as this under Supreme Court Rule 27.26, V.A.M.R. (a final judgment being set aside), was settled in State v. Parker, Banc, Mo., 413 S.W.2d 489, Nos. 51,972, 51,973 and 51,974. See also §§ 547.200, 547.210, RSMo 1959, V.A.M.S., and Supreme Court Rule 28.04, V.A.M.R.
By amended information, respondent was charged with robbery in the first degree 'with force and arms,' which occurred in 1929 after he statute was amended authorizing imposition of a sentence of ten years' imprisonment to death for the aggravating fact of such robbery being committed 'by means of a dangerous and deadly weapon.' (This latter fact was not charged in the amended information.) See § 3310, R.S.Mo. 1919, and the amended statute, § 4061, R.S.Mo. 1929, the latter being in force today except that in 1943 an amendment was added reducing the minimum punishment from ten to five years, which is incorporated in § 560.135, RSMo 1959, V.A.M.S.
There was evidence that respondent did, on March 23, 1929, commit the robbery 'at the point of a revolver.' State v. Nolan, loc.cit. 171 S.W.2d 654(1). The jury was instructed that 'the defendant, Walter E. Nolan, with force and arms, by means of a dangerous and deadly weapon, to-wit: a pistol, feloniously dis make an assault upon one Joseph Rapp by pointing a pistol at him * * *' The jury returned its verdict:
Respondent's contention was and is that the trial court in 1943 had no jurisdiction to sentence him for robbery by means of a dangerous and deadly weapon because he had not been charged with that offense; the sentence was an illegal violation of his right to be informed of the nature and cause of his accusation, guaranteed by Mo. Const.1875, Art. 2, § 22, and the Sixth and Fourteenth Amendments of the Constitution of the United States.
The state first says 'The trial court was without jurisdiction to discharge petitioner on motion to vacate on the point at issue because this court has previously ruled the point adversely to him on two different occasions and for the further reason that the issue passed on goes to a mere irregularity and not a fundamental error.' It is said that the first occasion where this court ruled the point against respondent was on the original appeal, 'We have examined the record proper and find it free from error.' State v. Nolan, Loc.cit. 171 S.W.2d 655. At the time of the original appeal, the 'record proper' consisted in part of the information, the verdict and judgment. State v. Willard, 228 Mo. 328, 128 S.W. 749. The original record here does contain the questioned information, the instruction, and the verdict above mentioned. The second occasion was in 1962 when respondent filed his application for a writ of habeas corpus alleging among other matters, that his imprisonment was unlawful because the information upon which he was tried did not charge him with the crime of robbery in the first degree by means of a dangerous and deadly weapon; and that the verdict of the jury found him guilty of a crime with which he was not charged in the information. The application for said writ was denied on September 10, 1962, 'for failure to state a claim upon which relief may be granted.'
Respondent was not represented by counsel on the original appeal and filed no brief. The case was reviewed upon the assignments of error in the motion for new trial, none of which raises an issue of the necessity for pleading aggravating circumstances which would authorize the imposition of additional punishment. In the habeas corpus proceeding, although the matter of the charge omitting the allegation of robbery with a dangerous and deadly weapon was mentioned, respondent, again not represented by counsel, stated no reason why matters in aggravation should be pleaded. If the infirmity in the information existed at the time of the 1943 review, or at the time of the habeas corpus application, and was not disposed of, it still exists, and it constitutes a ground for collateral attack and the matter, quite apparently not fully considered in the aspects now presented, may be corrected under the broad provisions of said Rule 27.26. The prevailing view is that proceedings in habeas corpus, not disposed of on the merits, are not res adjudicata. 25 Am.Jur. Habeas Corpus, § 156, p. 250, and pocket part; 39 C.J.S. Habeas Corpus § 105, p. 698, and pocket part; Anno. 161 A.L.R. 1332; as to Federal Courts, Anno. 92 L.Ed. 1381 et seq.; notably the case of United States ex rel. McCann v. Thompson (C.C.A.2d), 144 F.2d 605, 606, 156 A.L.R. 240, where Judge Learned Hand said, In this state see Ex parte Clark, 208 Mo. 121, 106 S.W. 990, 996, 15 L.R.A.,N.S., 389, quoting Weir v. Marley, 99 Mo. 484, 12 S.W. 798, '' In State v. Goodwin, Mo., 396 S.W.2d 548, a previous hearing on the prisoner's application for a writ of habeas corpus, a full evidentiary proceeding, with all relevant documents presented, was had, hence, as properly held, there was no basis for the Rule 27.26 proceedings. So also in State v. Thompson, Mo., 324 S.W.2d 133. Under the particular circumstances of this case, respondent is not barred from presenting the matter of failure to plead the aggravating fact of his use of a dangerous and deadly weapon in the robbery for which he was found guilty.
The state next says that 'The information herein was sufficient to apprise the petitioner of the cause and the nature of the offense for which he was convicted.' The argument proceeds: First, the state says respondent himself knew, as evidenced by the statement in his present motion to vacate, that at the time of the voir dire examination of the jury panel the state intended to try the case under R.S.Mo. 1929, § 4061, Clause 1, robbery in the first degree by means of a dangerous and deadly weapon. Second, the trial judge permitted a continued qualification of the panel on the death sentence and subsequently instructed the jury thereon, all without objection.
The amended information charging first degree robbery 'with force and arms' (although that phrase is 'superfluous and a meaningless bit of antiquity', State v. Pope, Mo., 364 S.W.2d 564, 568) does not charge that the act was done by means of a dangerous and deadly weapon. Respondent had a right to rely upon the accusion of the information, which, as worded, would not make a graver penalty applicable under § 4061, R.S.Mo. 1929. Mo.Const.1875, Art. 2, § 22, 'In criminal...
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