State v. Rentschler

• Decision Date: 08 September 1969
• Docket Number: No. 2,No. 53773,53773,2
• Citation: 444 S.W.2d 453
• Parties: STATE of Missouri, Respondent, v. Charles W. RENTSCHLER, Appellant
• Court: Missouri Supreme Court

Page 453

444 S.W.2d 453

STATE of Missouri, Respondent, v.Charles W. RENTSCHLER, Appellant.

No. 53773.

Supreme Court of Missouri, Division No. 2.

Sept. 8, 1969.

John C. Danforth, Atty. Gen., Jefferson City, Robert K. Waldo, Special Asst. Atty. Gen., Kansas City, for respondent.

Charles Rentschler, appellant, pro se. and by Channing D. Blaeuer, Moberly, for appellant.

MORGAN, Judge.

Defendant was convicted by a jury of attempting to escape from a state institution in which he was lawfully confined.Section 557.351, V.A.M.S., 1959.(All statutory references are to this revision.)Under the Habitual Criminal Act, Section 556.280, the court assessed punishment at three years confinement.Defendant has appealed.

Prior to the proceedings now challenged, defendant had been charged only with attempt to escape.With counsel, he had waived a preliminary hearing, entered a plea of guilty and been sentenced to a term of two years.His pro se motion to vacate this sentence and judgment under Rule 27.26, V.A.M.R. was sustained by the trial court.The state, with leave, filed the amended information with which we are now concerned.Under the provisions of Section 556.280, it further charged defendant with being a second offender.New counsel was appointed, and from the record it is obvious he has represented defendant at all stages of this proceeding with diligence and dedication to his assigned task.

Defendant, being convicted of Robbery First Degree, had been committed to the penitentiary in Jefferson City.After a quarantine period of thirty days, he was assigned to the Missouri Training Center For Men at Moberly.He was assigned to work in the printing shop which was located some distance from the living quarters.This work area was surrounded by its own fence in addition to the two perimeter fences.On the date of the alleged offense, it is agreed defendant did not leave the stop at 4:15 p.m. with the other inmates but hid in a tool cabinet.Sometime later he left the shop through a window and was found at about 10:15 p.m. lying in a ditch some 125 to 150 feet away from the print shop.It appears the fence was a similar distance farther away.When apprehended, defendant had in his possession: a pair of wire cutters (7 or 8 inches long), a knife-like tool (10 to 12 inches long) used to clean lead from the linotype machine and a $1.00 bill.Each of the items listed was known as contraband at the institution.Soon thereafter, defendant was transferred back to the main penitentiary in Jefferson City.

Defendant testified he had no thought of escaping but only sought to violate such regulations as would assure his return to Jefferson City.This desire for transfer resulted from two incidents which defendant described.On the day of his arrival in Moberly, at the first meal, he selected a table at which to eat.A brief argument developed when another inmate said it was his place.When told that each had his own place to eat, defendant said, 'I told the dudes I was sorry for taking their table and got up and left.'Approximately two months later, while combing his hair in the washroom, he said an inmate 'touched me on the back side (buttock) and I didn't like it.'With the expressed thought, 'I guess he was trying to get me into some kind of a homosexual act,'defendant hit the alleged offender.Later that day, two friends of the latter asked defendant if he was 'tough,' and he considered their further comments to be a threat to him.No other specific incidents were related.Defendant further testified he had advised the superintendent, both personally and by letter, of his desire to be transferred from Moderly.The superintendent did not recall either request.

The alleged errors are numerous as counsel complied with defendant's request that his pro se brief be incorporated into that of counsel.

Two attacks are directed toward the information.First, that after setting out that defendant was lawfully confined, it only provided that (he)'* * * did unlawfully and feloniously attempt to escape therefrom and go at large * * *' and thus failed to detail the manner by which he attempted to escape.We find the allegations, in the language of the statute, sufficient to support the judgment.State v. Gooch, Mo., 420 S.W.2d 283, 289.Had defendant thought he needed further enlightenment on the details, which he testified he planned to feign an escape, he could have availed himself of Criminal Rule 24.03 and moved for a bill of particulars.Second, that the allegations of the amended information were insufficient to invoke the provisions of the Habitual Criminal Act.That act provides that its provisions may be enforced against an accused who has previously been convicted and thereafter was '* * * placed on probation, paroled, fined or imprisoned * * *' for the previous offense.Objection is made to use of the words 'entered the penitentiary.'Reliance is placed on State v. Watson, Mo., 383 S.W.2d 753, wherein use of the words 'was received at said penitentiary' was found inadequate to 'clearly and definitely' comply with the statute regardless of the inference defendant had, in fact, been imprisoned.In retrospect, we need not determine whether or not the Watson case placed too severe a restriction on the words used.For if we assume that the word 'received' used there, under the circumstances, is synonymous with 'entered' used in the instant case, the two informations are readily distinguishable.Here, after the word 'entered,' it is further alleged defendant was 'in custody of the State Department of Corrections.'This wording can only be construed to mean defendant had been previously imprisoned, and we find the information sufficient in all respects.

It is further contended that the evidence was insufficient to support the jury's verdict.In addition to the evidence previously outlined, there was testimony that after the ten o'clock p.m. 'head count,' guards usually were removed from the perimeter fence and the lights illuminating the fences were extinguished.The jury had this fact before it, and could properly have determined that, but for defendant's absence being detected at this count, he could have approached the fences with the tools at hand without fear of lights or guards.Cases involving other attempted escapes are of little value as each must rest on its own facts.We are convinced that the many overt acts of defendant were sufficient to authorize the jury to find that the had passed the preparatory stage, and was in the act of attempting to escape when caught.It was for the jury, not this court, to accept or reject his defense that it was all an act.

Defendant further complains that the instructions given did not adequately submit his defense.In a rather ambivalent approach, it is argued that the jury...