State v. Pace, 51852
| Decision Date | 09 May 1966 |
| Docket Number | No. 51852,No. 2,51852,2 |
| Citation | 402 S.W.2d 351 |
| Parties | STATE of Missouri, Respondent, v. Paul PACE, Appellant |
| Court | Missouri Supreme Court |
L. Glen Zahnd, Savannah, for appellant.
Norman H. Anderson, Atty. Gen., Howard L. McFadden, Asst. Atty. Gen., Jefferson City, for respondent.
The defendant has appealed from the denial of his motion to vacate a judgment of conviction, the motion being filed pursuant to our Rule 27.26, V.A.M.R. The judgment was entered upon a plea of guilty to an information alleging that defendant had, on or about December 21, 1964, unlawfully and feloniously escaped from the Andrew County jail while confined there, before conviction, for the violation of a penal statute. See Section 557.390, RSMo 1959, V.A.M.S. The requirement of the statute is that the defendant be "lawfully imprisoned or detained * * * upon any criminal charge, before conviction," and that he break prison or escape therefrom.
The plea of guilty to the escape charge was made and received on March 31, 1965, with counsel present, and defendant was sentenced to serve a term of two years. On August 9, 1965, he filed the motion to vacate that judgment. From his own statements in that motion the following facts appear: he had previously been arrested on a warrant issued by the Magistrate of Andrew County charging him with the "taking and carrying away" of a tractor and trailer on or about May 1, 1961, and he had been imprisoned in the Andrew County jail; that thereafter he was "accused of escaping" therefrom; that he waived extradition and was returned to Missouri for trial; that on March 31, 1965, the original stealing case against him was dismissed and he was also sentenced to imprisonment for two years on the escape charge. It is not shown, nor is it material to know, which of those latter events occurred first.
It is defendant's contention that no lawful "imprisonment, arrest, or accusation" was proven or made, and that there was no foundation for a charge of escape; and that, therefore, he should be discharged from the judgment and sentence therefor. His sole additional point is that the information on the escape charge was void because it was only verified by the Prosecuting Attorney upon information and belief, whereas it should have been supported by the affidavit of someone competent to testify.
On the first point he cites the case of State v. King, Mo., 372 S.W.2d 857, which, as we shall see, in no way supports his position. His contention is not elaborated, but it seems to rest solely on the proposition that the original stealing charge was dismissed and that, consequently, he was never lawfully imprisoned. It is material to note the dates: the alleged theft occurred on or about May 1, 1961; he was not arrested on that charge until November 14, 1964, at which time he was imprisoned; he escaped on or about December 21, 1964, approximately five weeks after his arrest; the information on the escape charge was filed on January 6, 1965, and thereafter, according to defendant's own statement, it was necessary to return him from another state. We thus see that while imprisoned in a county jail upon a warrant "issued by the Magistrate Court of Andrew County" upon a criminal charge, he escaped. His statement that he was "accused of escaping" is the equivalent of a statement that he did escape, in view of his plea of guilty to the charge. He does not attack the validity of his original incarceration but, so far as we can tell, relies solely upon the fact that the stealing charge was dismissed at substantially the time he was sentenced for the escape; however, this was long after his actual escape.
The case of State v. King, Mo., 372 S.W.2d 857, involved the attempted escape of three inmates of the penitentiary. While the escape charge against King was pending, he sought to attack the validity of his original fifteen year sentence for robbery, doing so in a court which had no jurisdiction of that proceeding. The appeal was from his conviction for the attempted escape, and the court held that his claim of the invalidity of the prior conviction (which was the cause of his being in the penitentiary) could not affect the validity of his escape conviction. In so ruling the court said, in part quoting, loc. cit. 859:
In State v. Shirley, 233 Mo. 335, 135 S.W. 1, the defendant was contesting the validity of his custody by a constable from whom he escaped; the court said, quoting from Turner v. Wilson, 49 Ind. 581, loc. cit. 585: " 'A person arrested by law and put in the custody of the law remains in custody either actually or potentially until discharged according to law.' " There are sundry authorities on this subject from other states and from the federal courts. In Godwin v. United States (C.A.8), 185 F.2d 411, the defendant was indicted in Florida, arrested in Texas, arraigned, and confined in an Arkansas jail; he escaped about seven days after his arrest and four days after his formal commitment; he was subsequently indicted and convicted for the escape. Just prior to the return of the indictment for escape, the original Florida indictment was dismissed, but this action was taken approximately...
To continue reading
Request your trial
-
State v. Alderman
...statute' (Wynes v. State, 468 S.W.2d 7, 8 (Mo.1971)), and that he 'break such prison or custody and escape therefrom.' State v. Pace, 402 S.W.2d 351, 352 (Mo.1966). To determine if the evidence presented was enough to sustain the conviction and judgment entered thereon, we test it in the li......
-
State v. Crump
... ... Pace, Mo., 402 S.W.2d 351, 354(3, 4); State v. Statler, Mo., 383 S.W.2d 534, 536(1). So also in appellant's State v. Simpson, 136 Mo.App. 664, 118 S.W ... ...
-
Wintjen v. State, 53640
...of violence to or an assault upon a guard. State v. Hayes, 52 N.J.Super. 178, 145 A.2d 28; State v. King, Mo., 372 S.W.2d 857; State v. Pace, Mo., 402 S.W.2d 351; State v. Johnson, Mo., 432 S.W.2d 284; Annotation 70 A.L.R.2d 1430, For the reasons indicated the judgment in this particular pr......
-
State v. Green, 55031
...escape Generally, conditions of confinement do not justify escape and are not a defense. State v. King, Mo., 372 S.W.2d 857(6); State v. Pace, Mo., 402 S.W.2d 351; State v. Hart, Mo., 411 S.W.2d 143; State v. Rentschler, Mo., 444 S.W.2d The judgment is affirmed. All concur except SEILER, J.......