State v. Peck
| Decision Date | 10 June 1968 |
| Docket Number | No. 2,No. 53109,53109,2 |
| Parties | STATE of Missouri, Respondent, v. Rex PECK, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Glen C. Schomburg, Special Asst. Atty. Gen., Kirkwood, for respondent.
William Barton, Jefferson City, for appellant.
Defendant was charged under the Habitual Criminal Act with escaping from the Missouri Penitentiary where he was confined. The trial court made the necessary findings with reference to a prior conviction and the jury found defendant guilty of escape as charged. The court then sentenced defendant to imprisonment for three years. His motion for a new trial was overruled and he appeals.
The evidence will support this narration of facts: On September 11, 1965, defendant was lawfully confined in the Missouri State Penitentiary at Jefferson City. He was serving two consecutive five-year sentences for burglary and for grand stealing, imposed in 1963. On the date charged, officials discovered that two inmates, one of whom was defendant, were missing and they found a tunnel leading from beneath the floor of 'D' dormitory to a point outside the prison wall.
At about 1:40 p.m. Sergeant Phillips of the State Highway Patrol observed a car parked alongside the road on Highway 54 south of Jefferson City. One man was inside and the other standing alongside the automobile. Thinking that the men were having car trouble, Sergeant Phillips stopped about 200 feet down the road and started to back to where the car was parked. He observed the two men leave the car and walk toward the fence at the side of the road, and when he turned on his red flasher light the men ran into a wooded area. The Sergeant ascertained by means of his radio that two men had escaped from the Penitentiary, and he then requested that assistance be sent to him, and that bloodhounds be brought from Algoa. Approximately thirty minutes later, the bloodhounds and their handlers arrived, along with a Mr. Bond, who was a guard from the Penitentiary. They started following the trail of the two men who had fled and later, at a point about two miles away, caught up with the two men. Mr. Bond knew and recognized defendant as one of the two men who had escaped from the Penitentiary. The other man with the defendant was Mr. Brodkowicz.
Counsel was appointed for defendant in the Circuit Court prior to arraignment. Counsel thereafter represented the defendant throughout the proceedings in the Circuit Court and on appeal to this court and has been diligent and painstaking in his efforts on behalf of the defendant.
The first question on appeal relates to the sufficiency of the information. It charged an offense under § 557.351 (Laws of Missouri, 1961, p. 331), 1 which provides as follows: 'Any person sentenced to the state department of corrections upon conviction of escaping or attempting to escape from any state institution in which he was lawfully confined, or from the lawful custody of any person while being transported, shall be sentenced to the department of corrections generally for a term of not less than two and not exceeding five years.'
Prior to its repeal in 1961 (when § 557.351 was enacted), § 557.350 provided that, 'If any person confined in the penitentiary for any term less than life * * * shall break such prison or custody and escape therefrom, he shall, upon conviction, be punished by imprisonment in the penitentiary for a term not exceeding five years * * *.' It will be observed that this statute covered escape from the penitentiary only. It was replaced by § 557.351 so as to cover escape from 'any state institution in which he was lawfully confined.'
The information, after charging a prior conviction, then stated as follows: 'That thereafter, on the 11th day of September, 1965, at Cole County, Missouri, the defendant, Rex Peck, was lawfully confined in the Missouri State Penitentiary, an institution under the control of the State Department of Corrections of the State of Missouri, and the said Rex Peck did unlawfully and feloniously escape therefrom and go at large, against the peace and dignity of the State.'
The contention of the defendant is that the information is bad because it follows the language of a repealed section of the law instead of the language in the statute in effect at the time of the offense. We overrule this contention. The fact that the information did not use the generalized language of the 1961 Act does not make it had. It alleged specifically the state institution from which defendant was alleged to have escaped and thereby more definitely informed him of the charge with which he was confronted. This did not alter the fact that he still was charged with escaping from a state institution in which he was legally confined, which is what § 557.351 covers. The defendant was not prejudiced by the use of the more specific language. The fact that it happened to be language used in the preceding statute is wholly immaterial under the circumstances.
Defendant next complains that counsel was not appointed for him in the Magistrate Court, although he requested such appointment. The proceedings in the Magistrate Court are not contained in the transcript on appeal, but it does contain a motion filed by defendant in the Circuit Court wherein he sought to have the information quashed and the complaint against him dismissed on the basis that his request for appointment of counsel at the preliminary hearing has been denied.
This court has held on numerous occasions that the preliminary hearing under the Missouri procedure is not a critical stage so as to require appointment of counsel. Cases so holding include State v. Durham, Mo., 416 S.W.2d 79; State v. Turley, Mo., 416 S.W.2d 75, and State v. McClain, Mo., 404 S.W.2d 186. It would serve no useful purpose to enter into a lengthy discussion of those cases and the distinction made therein from cases such as White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193; Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527, and Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114. There is nothing in the transcript before us to show that the defendant was prejudiced or deprived of constitutional rights by the absence of counsel at the preliminary hearing. We overrule this contention.
The third assignment of error by defendant involves the action of the trial court in overruling challenges for cause of prospective jurors. The defendant challenged certain prospective jurors on the voir dire on the basis that their answers disclosed that they had served as jurors during the preceding week in a trial in which some other defendant was convicted on a charge of escaping from the institution at which he was confined. No connection with the escape by this defendant is asserted or shown. This prior service, so defendant contends, entitled him to challenge such persons for cause, even though they all stated that they could fairly and impartially serve on the jury. We find no merit in this contention. The fact that a juror, for example, has served on another unrelated murder case is not per se a basis for challenge for cause of that prospective juror is a subsequent murder trial. Similarly, service on a jury in a robbery case does not disqualify one for service in a later robbery trial, and service on a jury in an automobile accident case does not disqualify a juror from service in later automobile accident cases. We find no sound basis for disqualification under such circumstances, and a rule of this nature would be wholly impractical in operation. It would disqualify persons from serving more than once in any particular type of case.
Defendant pleaded not guilty by reason of mental disease or defect. He requested that the court order an examination of him and the court entered such an order, directing that the defendant be examined by doctors at the State Hospital at Fulton. These doctors, however, did not testify at the trial.
In the trial of the case the defendant himself took the stand and testified as to early head injuries which he was permitted to testify affected his speech and his mind. He told of numerous instances when he had been arrested, convicted and imprisoned. These included several federal convictions to be served after completion of his state sentence. He also told of severe injuries received from another inmate while in jail in 1962. He testified that in 1964 he applied to the State Parole Board for probation so as to permit him to commence serving his federal sentences. His request was denied, although he contended that others similarly situated had been given favorable consideration by the Parole Board. He testified...
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