State v. Stroemple

• Decision Date: 10 February 1947
• Docket Number: 39936
• Citation: 199 S.W.2d 913,355 Mo. 1147
• Parties: State v. Jack Stroemple and Chester Skiba, Appellants
• Court: Missouri Supreme Court

199 S.W.2d 913

355 Mo. 1147

State v. Jack Stroemple and Chester Skiba, Appellants

No. 39936

Supreme Court of Missouri

February 10, 1947

Rehearing Denied March 10, 1947.

Appeal from Lincoln Circuit Court; Hon. Theodore C. Bruere Judge.

Affirmed.

B J. Creech for appellant Chester Skiba and G. C. Huston for appellant Jack Stroemple.

(1) Defendants were placed in double jeopardy. Lagore v. Ramsey, 126 S.W.2d 1153; State v. Huffman, 136 Mo. 58, 37 S.W. 797; 16 C.J. 244, sec. 382; State v. Herring, 92 S.W.2d 132; State ex rel. v. Dobson, 135 Mo. 1, 36 S.W. 238; Sec. 1626, R.S. 1939; Ex parte Ruthben, 17 Mo. 541; Ex parte Schneider, 29 Mo.App. 256; Ex parte Dixon, 52 S.W.2d 181. (2) Mode of procedure was erroneously changed. Secs. 3892, 3953, R.S. 1939; (3) Pleas of former jeopardy were erroneously withheld from consideration of jury. State v. Huffman, 136 Mo. 58, 37 S.W. 797; State v. Manning, 168 Mo. 418. (4) Instructions 7, 8 and 9 which deal with extra-judicial statements are each prejudicial and reversible error because: (a) they invade the province of the jury; and (b) they are unwarranted comments on the evidence. The error was magnified and made more glaring by giving three identical erroneous instructions. State v. Johnson, 333 Mo. 1008, 63 S.W.2d 1000; State v. Duncan, 336 Mo. 600, 80 S.W.2d 147; State v. Busch, 342 Mo. 959, 119 S.W.2d 265; State v. Robertson, 351 Mo. 159, 171 S.W.2d 718; State v. Luna 162 S.W.2d 859; State v. Krauss, 171 S.W.2d 699.

J. E. Taylor, Attorney General, and Robert L. Hyder, Assistant Attorney General, for respondent.

(1) The defendants' pleas of double jeopardy were properly denied. Sec. 19, Art. I, Mo. Constitution of 1945; Bayless v. United States, 147 F.2d 169; State v. Simms, 71 Mo. 538; State v. Schierhoff, 103 Mo. 47; Sec. 3939, R.S. 1939; State v. Taylor, 171 Mo. 465, 71 S.W. 1005; State v. Goddard, 162 Mo. 198, 62 S.W. 697; State v. Anderson, 96 Mo. 241, 9 S.W. 636; State v. Vincent, 91 Mo. 662, 4 S.W. 430; State v. Eaton, 75 Mo. 586. (2) Instruction 7, relating to statements made by the defendants, if improper, was harmless because there was no statement of defendants offered on the trial which affected their guilt or innocence. State v. Hayes, 262 S.W. 1034; State v. Johnson, 333 Mo. 1008, 63 S.W.2d 1000. (3) Assignments of Error Nos. 1, 2, 3, 4, 8, 10 and 20 are so general as to present nothing for review in this court. State v. Kennon, 123 S.W.2d 46; State v. Langley, 342 Mo. 447, 116 S.W.2d 38; State v. Brown, 342 Mo. 53, 112 S.W.2d 568. (4) General assignments of error in giving designated instructions are not sufficient to present any point for review in this court. State v. Plassar, 195 S.W.2d 495. (5) The court properly refused the demurrers to the evidence offered by the defendants. Sec. 4450, R.S. 1939.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

Chester Skiba, Jack Stroemple and Frank Earnest were sentenced to thirty years' imprisonment for the armed robbery of the Peoples Bank of Hawk Point on August 11, 1943. Upon this appeal Skiba and Stroemple contend that they had theretofore been tried for the same offense, that the present trial and conviction again put them in jeopardy for the same offense, consequently they are entitled to be discharged. Const. U.S., Amend. V; Const. Mo., Art. I, Sec. 19; Mo. R.S.A., Secs. 4846, 4847, 4848. They further contend, if not entitled to be discharged, that they are entitled to a new trial because the court erred, first, in failing to submit the question of their double jeopardy to the jury and, second, in instructing the jury upon the subject of their voluntary statements.

The appellants' claim of being twice placed in jeopardy for the same offense is based upon these circumstances: In the beginning the defendants were proceeded against by separate informations filed on the 14th day of August 1943. Each of the defendants entered pleas of guilty to the informations and each was sentenced to thirty-five years' imprisonment. While they were serving their sentences in the Missouri penitentiary the appellants filed petitions for habeas corpus in the Supreme Court of Missouri and in May 1945 the court sustained their petitions upon the ground that they had not been represented by counsel at the time the pleas of guilty were entered. (Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398.) Accordingly the court remanded them to the sheriff of Lincoln County "for further proceedings." After the appellants had been returned to Lincoln County three prominent, experienced lawyers were appointed to represent them. On the 20th of July 1945 the prosecuting attorney dismissed the informations. Thereupon an indictment was returned charging the appellants and Earnest with the bank robbery. Counsel were reappointed and the defendants, upon being arraigned, refused to plead either guilty or not guilty and took the position that the court did not have jurisdiction to try them under the indictment. The court assumed them to be not guilty (Mo. R.S.A., Sec. 4004) and set their trials for the 20th of September. Before the cause proceeded to trial the defendants filed pleas in bar based upon these facts. The trial court overruled the pleas and the appellants now contend, as a matter of law, that they are entitled to be discharged.

They say that the mandates in the habeas corpus proceedings remanded them to the custody of the sheriff "for a limited purpose only," that after the mandates were returned the cases were upon the trial court's docket with their previous pleas of guilty to the informations and that the trial court was powerless to do otherwise than resentence them. They urge that a plea of guilty has the same force and effect as a verdict of conviction or acquittal and, having once entered their pleas of guilty, they were then in jeopardy. But the defect in their trials upon their pleas of guilty to the informations and for which they were remanded to Lincoln County "for further proceedings" was not an error in the sentence or judgment as to the proper place or correct time of confinement invalidating the proceedings only in so far as they affected the sentences, as was the case in LaGore v. Ramsey (Mo.), 126 S.W.2d 1153. Here the defect complained of in the habeas corpus proceedings, failure of the court to appoint counsel, inhered in and invalidated the entire proceedings, they were set aside as void including the pleas of guilty and so, when they were remanded "for further proceedings" their cases, including the pleas of guilty, were upon the trial court's docket as though there had never been a judgment and as though they had never been tried. Ex parte Thompson v. Sanders, 334 Mo. 1100, 70 S.W.2d 1051; State ex rel. Dutton v. Sevier, 336 Mo. 1236, 83 S.W.2d 581. The cases were then pending upon the informations originally filed but the prosecuting attorney was bound to pursue the mode of procedure first chosen so long as that mode of procedure was undetermined. Mo. R.S.A., Sec. 3892. Once the cases are again upon the trial court's docket as though they had never been tried the prosecuting attorney may terminate the procedure by information and thereafter prosecute all the causes by indictment as he may also substitute an information for an indictment. State v. Weagley, 286 Mo. 677, 687, 228 S.W. 817, 819; State v. Taylor, 171 Mo. 465, 473, 71 S.W. 1005.

This may in effect dispose of the appellants' claim of double jeopardy. But if it does not there can be little doubt that their plea is untenable in the circumstances of this case. As we have indicated, their pleas of guilty were set aside as void. And our constitutional provision, upon which they rely, says "nor shall any person be put again in jeopardy of life or liberty for the same offense, after being once acquitted by a jury; but if the jury fail to render a verdict . . . and if judgment be arrested after a verdict of guilty on a defective indictment or information, or if judgment on a verdict of guilty be reversed for error in law, the prisoner may be tried anew on a proper indictment or information, or according to the law." Const. Mo., Art. I, Sec. 19. And so it is with the statutes, when the defendant has been acquitted or convicted "but the judgment shall for any cause be arrested, he may be tried and convicted on a subsequent indictment for the same offense, . . ." Mo. R.S.A., Secs. 4846-4848. In these circumstances, the appellants' prior convictions upon their pleas of guilty to the informations having been set aside as void, they could not validly support the pleas in bar that they had theretofore been placed in jeopardy for the same offense. Bayless v. U.S., 147 F.2d 169; State v. Goddard, 162 Mo. 198, 62 S.W. 697; State v. Schierhoff 103 Mo. 47, 15 S.W. 151; annotation 97 A.L.R. 160; 22 C.J.S., Sec. 266, 15 Am. Jur., Sec. 364. The fifth amendment to the Constitution of the United States applies only to the procedure and trial of causes in the federal courts and is not therefore, in any event, available to the appellants in this cause. Ex Parte Dixon, 330 Mo. 652, 52 S.W.2d 181, 182.

There was no dispute as to the facts upon which the pleas of former jeopardy were based. The prosecuting attorney admitted the identity of the appellants and the crimes charged in the informations and in the indictment, (Compare: State v. Huffman, 136 Mo. 58, 37 S.W. 797) any other facts in support of the pleas were the records of the courts of which there was no dispute, hence the validity of their pleas of former jeopardy was a question of law for the court and not a question of fact to be submitted to the jury. State v. Manning, 168 Mo. 418, 429-430, 68 S.W. 341; State v. Goddard, 162 Mo. 198, 225, 62 S.W. 697; annotation 11 Ann. Cas. 994; 23 C.J.S., Sec. 1129.

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