State v. Richardson, 48480

• Decision Date: 12 June 1961
• Docket Number: No. 48480,No. 1,48480,1
• Citation: 347 S.W.2d 165
• Parties: STATE of Missouri, Respondent, v. Bitz RICHARDSON, Appellant
• Court: Missouri Supreme Court

Page 165

347 S.W.2d 165

STATE of Missouri, Respondent, v. Bitz RICHARDSON, Appellant.

No. 48480.

Supreme Court of Missouri, Division No. 1.

June 12, 1961.

Grace S. Day, St. Joseph, for appellant.

Thomas F. Eagleton, Atty. Gen., Scott O. Wright, Sp. Asst. Atty. Gen., for respondent.

DALTON, Judge.

This is a proceeding under Supreme Court Rule 27.26, V.A.M.R., to vacate and set aside a judgment and sentence of life imprisonment entered against movant (hereinafter referred to as defendant) by the Circuit Court of Henry County on December 30, 1958, upon a plea of guilty to a charge of murder in the first degree.

The motion charged generally 'that said judgment and sentence of the Court was imposed in violation of the Constitution and Laws of the United States, and in violation of the Constitution and Laws of the State of Missouri, that said defendant has been restrained of his liberty without due process of law, and further that said Court was without jurisdiction to render said judgment and sentence heretofore imposed.' No specific constitutional provisions were cited, described or otherwise referred to in the motion.

It was further alleged (1) that the magistrate court, wherein a complaint had been filed against defendant charging murder in the first degree, had 'lost jurisdiction of the case * * * and therefore had no authority to certify said cause to the Circuit Court of Henry County, thereby making all further proceedings void and of no effect' because the records of the said magistrate court failed to make entries of continuances of said cause at ten day intervals from September 18, 1958, the date of defendant's arrest, to December 23, 1958, when an order was entered showing that the defendant had waived his preliminary hearing and ordering that the defendant be held without bond to await the action of the circuit court of said county; (2) that the information filed in said cause on the 29th day of December, 1958, 'was defective and invalid for failure to show endorsement of witnesses on the information' and, without such endorsement, the defendant could not be fully informed of the charge against him; (3) that after the judgment and sentence of the court had been entered upon defendant's plea of guilty, a certified copy of such judgment and sentence failed to state the degree of murder as required by the statutes of the State and 'therefore defendant has been committed to the penitentiary on an invalid and void sentence, which sentence should therefore be vacated and set aside'; and (4) 'that although represented by counsel, defendant was not informed of material facts within the knowledge of his attorney and therefore entered a plea of guilty under a misrepresentation of the true facts in the case * * *; that defendant's attorney kept telling defendant that he was going to get the gas chamber until defendant became so confused and alarmed and placed in such apprehension and fear that he was in such a disturbed frame of mind that defendant did not realize what he was doing at the time he entered his plea of guilty to said charge.' The facts, as to which it is alleged the defendant was not advised, were then reviewed, together with a statement of the alleged representations and promises made by his attorney, and a charge that 'For these promises said defendant paid his attorney the sum of $1500 over and above the $3500 fee he had already paid his attorney.'

The legal sufficiency of the motion was not tested by a motion to dismiss [see State v. Warren, Mo.Sup., 321 S.W.2d 705, 710; State v. Cerny, 365 Mo. 732, 286 S.W.2d 804, 807(5)] but the cause was heard by the court on January 21, 1960, taken under advisement and time granted for the filing of briefs. Thereafter, on August 29, 1960, defendant's motion was overruled and defendant filed notice of appeal. We shall review the cause de novo. Supreme Court Rule 28.05; State v. Cerny, supra. The evidence offered in support of the motion will be stated with reference to the specific assignments.

Proceedings by motion to vacate a judgment of conviction and sentence under Rule 27.26 are similar in nature to habeas corpus and no response by the State is required unless the writ is issued and served. However, defendant's allegations in support of such a motion are not to be taken as admitted merely because the State has not denied them. State v. Kitchin, Mo.Sup., 300 S.W.2d 420, 425(7).

Appellant contends that the court erred in failing to vacate and set aside the judgment and sentence because the information filed in the circuit court was defective and invalid for failure to show the endorsement of witnesses on the back of said information. Appellant further contends that the filing of said information in said court on December 29, 1958, with no witnesses endorsed thereon was prejudicial to the appellant. Appellant cites Supreme Court Rule 24.17, Sec. 545.070 RSMo 1949 (perhaps Sec. 545.240 was intended) V.A.M.S. and State v. Parks, Mo.Sup., 331 S.W.2d 547.

In this case the names of no witnesses were endorsed on the back of the information filed. The information was otherwise in due form and charged the defendant with murder in the first degree of one Tom Gregg by shooting him several times on September 18, 1958, in Henry County, Missouri. No motion to quash was filed. Defendant with his counsel, and without objection, appeared in person to the charge and entered a plea of guilty.

While the mentioned statute and subsequent rule of this Court required the endorsement of witnesses, the requirement is for defendant's benefit and the defect could be and was waived under the facts shown. A judgment and sentence, otherwise valid, will not be set aside, unless it is clearly shown upon a proper appeal that defendant was prejudiced by the failure to endorse the names of witnesses. State v. Parks, supra, 331 S.W.2d 547, 550. The information was not void by reason of the defect noted, nor was the judgment and sentence based thereon void under the facts shown. State v. Long, 209 Mo. 366, 108 S.W. 35, 37.

Appellant further contends that 'the court erred in failing to vacate and set aside the judgment and sentence of the court heretofore entered because the magistrate court lost jurisdiction.' Appellant argues that he was arraigned in the magistrate court on September 19, 1958, and the next entry in the magistrate court is that on December 23, 1958, preliminary hearing was waived. Appellant contends that, 'This is contra to the laws of the State of Missouri in failing to show continuance of said preliminary from time to time not to exceed ten days'; and that the magistrate court had no jurisdiction to certify the case to the circuit court and therefore any further entries of the circuit court are void. Appellant cites Supreme Court Rules 23.02 and 23.06 and Secs. 544.250 and 544.320 RSMo 1949, V.A.M.S.

We need not further consider this assignment because the primary purpose of a proceeding in the magistrate court in a felony case is to have a warrant issued for the defendant's arrest, grant a preliminary hearing to determine whether probable cause exists as to defendant's guilt, and if such cause is shown, or if hearing is waived, to hold defendant or require him to give bond to answer such charge, if any, as may be filed against him in the circuit court. Nor need we rule the sufficiency of the record to show waiver by defendant of his preliminary hearing in the magistrate court for the reason that the record presented shows that a valid and sufficient information charging defendant with murder in the first degree was filed in the circuit court subsequent to the alleged waiver of preliminary hearing in the magistrate court; and that defendant thereafter appeared thereto in person and by attorney in the circuit court and entered a plea of guilty to the offense charged, and without objection or moving to quash or abate said information on the ground that no preliminary hearing had been held or waived in the magistrate court and making proof thereof. State v. Shields, 296 Mo. 389, 246 S.W. 932, 934(5); State v. Jack, Mo.Sup., 209 S.W. 890(2). The right to a preliminary examination as a condition precedent to the filing of an information is not jurisdictional, the jurisdiction of the circuit court is not derivative and a failure to accord the right to a preliminary hearing can only be taken advantage of by calling the trial court's attention to same by an appropriate motion and offering proof to establish the fact of such failure. State v. Ferguson, 278 Mo. 119, 212 S.W. 339; State v. Ancell, 333 Mo. 26, 62 S.W.2d 443 and State v. Thomas, 353 Mo. 345, 182 S.W.2d 534. Any defects in the record attending the waiver of the preliminary hearing or of other proceedings in the magistrate court were waived when defendant, represented by counsel, appeared in the circuit court, announced ready and entered his plea of guilty to the charge of murder in the first degree stated in the information. Tucker v. Kaiser, Mo.Sup., 176 S.W.2d 622, 623; State v. Taylor, 362 Mo. 676, 243 S.W.2d 301 and State v. Smart, Mo.Sup., 328 S.W.2d 569, 575.

Appellant further contends that the court erred in failing to vacate the judgment and sentence because the judgment and sentence was void since the clerk of the circuit court made a certified copy of the judgment, together with commitment papers, to accompany the defendant when he was removed from Clinton to Jefferson City, and in copying the judgment the clerk omitted to show the degree of murder. The evidence shows that, when the sheriff and defendant reached Jefferson City, the officers at the penitentiary refused to accept the defendant, because 'no degree of murder was shown on the commitment papers' and the sheriff placed defendant in the Cole County Jail until a new certified copy of the judgment could be and was obtained from the Circuit Court of Henry County. When it was obtained and showed the judgment and sentence in proper form...