State v. Schaffer, 50624
| Decision Date | 12 October 1964 |
| Docket Number | No. 1,No. 50624,50624,1 |
| Citation | 383 S.W.2d 698 |
| Parties | STATE of Missouri, Respondent, v. George SCHAFFER, Appellant |
| Court | Missouri Supreme Court |
Thomas F. Eagleton, Atty. Gen., Donald L. Randolph, Asst. Atty. Gen., Jefferson City, for respondent.
George Schaffer, pro se.
Defendant, a prisoner in the Missouri State Penitentiary, instituted this proceeding under the provisions of Supreme Court Rule 27.26, V.A.M.R., by the filing of a pro se motion to set aside a judgment and sentence wherein he had been adjudged guilty of forcible rape. In the original trial the court found as charged, that defendant had been convicted of a prior felony. Defendant's punishment was fixed by the court at imprisonment in the penitentiary for a term of 99 years. Upon appeal to this court the judgment was affirmed. State v. Schaffer, Mo.Sup., 354 S.W.2d 829.
Upon the filing of defendant's motion the trial court set the same for hearing, ordered that defendant be brought to St. Louis so that he could be present at the hearing, and appointed an attorney to represent him in presenting the motion. At the hearing the attorney for defendant made an argument in which he discussed the various contentions contained in the motion but no evidence was offered in an effort to prove the fact allegations therein. Thereafter, the court overruled the motion and defendant has duly appealed from that order and judgment.
As stated, the crime charged was forcible rape. As shown by the transcript of the original trial, defendant is a Negro and prosecutrix is a mentally retarded white girl who was 18 years old at the time in question. It was admitted by defendant that prosecutrix spent the night in his house and that during a part of the night they were in bed together, both in the nude. Prosecutrix testified that she was walking on the sidewalk when she was grabbed from behind and dragged into defendant's quarters; that defendant then tore her clothing off, beat and choked her, and 'knocked her out' for an indefinite length of time. She could not tell the jury whether defendant had intercourse with her but a medical examination made shortly after she left defendant's home showed facts which would reasonably warrant a finding of recent intercourse. Defendant testified that prosecutrix came to his home voluntarily and that she was, at that time, 'scratched and beat up' and her clothes were torn; that she didn't want to go home because she was afraid her mother would whip her. While he remembered that he and prosecutrix were in bed together, nude, during a part of the night, he stated that he had been drinking and if he had intercourse with her he did not remember anything about it.
A number of the contentions in defendant's motion relate to alleged errors which occurred in the trial of his case. Such assignments may not be considered in a proceeding under Rule 27.26. This court has recently said that "Rule 27.26 affords a prisoner a convenient means for a direct attack on the judgment of conviction by motion in the original proceeding. The attack is governed by the general principles applicable to habeas corpus proceedings within the grounds specified in Rule 27.26, which lie only where the sentence is void or otherwise subject to collateral attack.' State v. Cerny, 365 Mo. 732, 286 S.W.2d 804, 806. We have also said that 'A motion under Rule 27.26 may not be used as a substitute for a motion for new trial (State v. Cerny, Mo.Sup., 286 S.W.2d 804) nor function as an appeal.' State v. Hagedorn, Mo.Sup., 305 S.W.2d 700, 702. * * * Rule 27.26 does not afford a basis for the review of trial errors * * *.' State v. Childers, Mo.Sup., 328 S.W.2d 43, 44, 45.
One of the principal contentions of defendant in his motion is that his conviction should be set aside because he was denied the constitutional right to the effective assistance of counsel. Defendant was represented by an attorney appointed by the court. On the face of the transcript it appears that said attorney defended the case in a creditable manner. But defendant says that his attorney had a relative on the police force and that he failed and refused to call witnesses who would have testified to facts contradictory to some of the State's evidence. No proof of these matters was presented at the hearing and therefore they are not before us for consideration. He also contends that his counsel failed in the performance of his duties when he did not file a motion to suppress certain evidence (including a bloody towel) which had been procured by the police in an unlawful search. These items were obtained by the police immediately after defendant had...
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