State v. Thompson

• Decision Date: 11 May 1959
• Docket Number: No. 45629,45629
• Citation: 324 S.W.2d 133
• Parties: STATE of Missouri, Respondent, v. Ulysses Simpson Grant THOMPSON, Appellant.
• Court: Missouri Supreme Court

Page 133

324 S.W.2d 133

STATE of Missouri, Respondent, v. Ulysses Simpson Grant THOMPSON, Appellant.

No. 45629.

Supreme Court of Missouri, En Banc.

May 11, 1959.

John M. Dalton, Atty. Gen., Aubrey R. Hammett, Jr., Asst. Atty. Gen., James E. Conway, Asst. Atty. Gen., for respondent.

Ulysseus Simpson Grant Thompson, appellant and affiant, pro se.

STORCKMAN, Judge.

The appellant, Ulysses Simpson Grant Thompson, was found guilty by a jury in the Circuit Court of the City of St. Louis of murder in the second degree and his punishment was assessed at twenty-five years' imprisonment. He was sentenced in accordance with the verdict on November 17, 1948. He did not file a motion for new trial and no appeal was taken. He is now imprisoned in the Missouri State Penitentiary. This appeal is from the overruling of defendant's motion to vacate and set aside the judgment and sentence, a proceeding filed in the trial court on May 1, 1956, pursuant to Supreme Court Rule 27.26, 42 V.A.M.S. The appeal was heard in division and transferred to the court en banc because a member of the division dissented from the opinion rendered.

The motion to set aside and vacate the judgment and sentence, filed in the trial court on May 1, 1956, and which is the basis of this appeal, consists of sixteen typewritten pages and is interspersed with argument and citations to and quotations from authorities. This, however, is but a small part of the applications, motions, letters, and other documents filed in this court by the defendant, most of which have no bearing on the merits of the appeal. The defendant claims he is entitled to be released because the sentence was imposed in violation of provisions of the Constitution of this State and the United States. Many of the allegations are vague, contradictory and of doubtful sufficiency, but construing the motion most broadly and favorably to the defendant, the grounds alleged are substantially as follows:

(1) That, prior to the trial of the homicide case, the defendant requested the various court-appointed attorneys to file a motion to suppress evidence which, he asserted, was obtained illegally and unlawfully without warrant in violation of constitutional provision, and that he, pro se, had moved for a hearing which was denied, although, prisoner-movant asserts, it was 'encumbent upon the court to grant defendant's motion and appoint counsel to argue the case and represent defendant at the pretrial hearing'; (2) that the court erred in permitting the circuit attorney in his opening statement to display several documents and explain to the jury that they were five indictments charging the defendant with very serious crimes, and on one of which charging second degree murder the defendant would be tried, and the defendant asserts that those relating to other crimes were inadmissible; (3) that the trial court erred in admitting evidence of prior convictions supposedly of the defendant and in permitting the circuit attorney to inform the jury that the defendant was an ex-convict when in truth the defendant had not prior to the trial served time in any penitentiary, and the records in the circuit attorney's possession were those of some other person or persons--probably of defendant's brother; (4) that the defendant was forced to act as his own counsel without advice from anyone; (5) that the defendant during the course of the trial requested a copy of the indictment and the request was refused after which the defendant requested that the indictment be read to him which was also refused in violation of his constitutional rights to be informed of the charge against him and due process of law; (6) that during the trial the defendant requested the court 'for the subpoena of certain witnesses, to refute and deny the damaging, perjured statements made by arresting officers' which request the court refused in violation of the defendant's right to have compulsory process for obtaining witnesses; and (7) that the defendant was prevented from filing a motion for new trial and taking an appeal by unlawful acts of the circuit attorney, the trial court, the public defender's office, and the officials of the city jail.

The order entered in the circuit court on May 1, 1956, overruling the motion to vacate, reads as follows:

'Leave granted defendant in above cause to file motion to set aside sentence and judgment as provided for in Rule 27.26 of the Supreme Court of Missouri, as a poor person granted.

'Application to set aside judgment and sentence of defendant in this cause denied as provided in Rule 27.26 of the Supreme Court of Missouri, as follows:

"The Court need not entertain a second motion or successive motions for similar relief on behalf of the same prisoner.'

'An application of this same kind was presented and ruled on by this Court on June 19, 1953, wherein the following order was made on said application:

"June 19, 1953, motion to proceed as pauper considered and sustained. * * *.'

"On June 19, 1953, this motion is taken by the Court as submitted, is considered and ednied. The effect of this motion is to ask for a new trial and said proceeding cannot now take place legally; also, a like motion was previously considered and ruled upon on March 3, 1952, * * *."

We do not have before us the motion of March 3, 1952, but the application ruled on June 19, 1953, made substantially the same charges as the motion of May 1, 1956, except that the former motion alleged that during the course of the trial the court refused to subpoena on behalf of the defendant 'several nurses and Doctors,' without naming them, so that the defendant might refute the testimony of police officers 'who falsely testified that the prisoner had been identified by the fatally wounded victim as his assailant' while the victim was in bed in a hospital room.

Rule 27.26 is, in substance, the same as similar provisions of 28 U.S.C.A. Sec. 2255, relating to judgments of the federal courts. State v. Eaton, Mo., 280 S.W.2d 63. The purpose of Sec. 2255 was to minimize the defects encountered in habeas corpus proceedings instituted in the district court of the prisoner's confinement by providing a remedy for determining the legality of the detention in the court imposing the sentence where the issues could be presented more conveniently and expeditiously. United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232. Likewise, 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 a habeas corpus proceeding within the grounds specified in Rule 27.26, and will lie only where the judgment of conviction is void or otherwise subject to collateral attack. State v. Cerny, 365 Mo. 732, 286 S.W.2d 804, and cases therein cited; Dockery v. United States, 4 Cir., 237 F.2d 518; State v. Freedman, Mo., 282 S.W.2d 576. The guilt or innocence of the prisoner cannot be considered on habeas corpus or its counterpart a motion under Rule 27.26, but only the legality of his restraint. 39 C.J.S. Habeas Corpus Sec. 13, p. 441; Miller v. Gerk, Mo.App., 27 S.W.2d 444, 446.

The statutory motion to vacate and set aside a judgment and sentence may not be used in lieu of an appeal to review errors committed in the course of the trial, even though such errors relate to constitutional rights, or to question the sufficiency of the evidence to support the conviction. United States v. Trumblay, 7 Cir., 234 F.2d 273; Taylor v. United States, 4 Cir., 177 F.2d 194; State v. Cerny, supra; 39 C.J.S. Habeas Corpus Sec. 15, p. 444, Sec. 21, p. 469.

If a prisoner files a motion pursuant to Rule 27.26, which is considered, overruled, and no appeal taken, a subsequent motion or successive motions based on the same grounds, and seeking similar relief, need not be entertained by the court, inasmuch as the order overruling the former motion is 'deemed a final judgment' within the purview of Rules 28.03 and 28.04. State v. Campbell, Mo., 307 S.W.2d 486, certiorari denied 356 U.S. 922, 78 S.Ct. 708, 2 L.Ed.2d 718; State v. Hurst, Mo., 280 S.W.2d 115; Rule 27.26, supra.

Rule 27.26 requires that: 'Unless the motion and the files and records of the case show to the satisfaction of the court that the prisoner is entitled to no relief, the court shall cause notice thereof to be served on the prosecuting attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.' It is readily apparent that many of the allegations in defendant's motion to vacate are legally insufficient as grounds for relief under Rule 27.26. In the circumstances of this case, however, we need not determine their respective merits or determine whether the order of the trial court ruling the motion of May 1, 1956, or a previous motion, was a sufficient compliance with the rule because all of the matters of the substance alleged therein have been heard and adjudicated by this court in its judgment rendered May 21, 1951, in a habeas corpus action filed by Thompson against the warden of the penitentiary.

The supreme court takes judicial notice of its own records. State v. Green, Mo., 305 S.W.2d 863, 869; State v. Bockman, 344 Mo. 80, 124 S.W.2d 1205, 1206. It follows that this court will take judicial notice that the same issues have been reviewed by this court through another medium and finally adjudicated. Meyer v. Goldsmith, Mo., 196 S.W. 745, 746, dismissing appeal 185 Mo.App. 707, 171 S.W. 606, error dismissed 246 U.S. 678, 38 S.Ct. 316, 62 L.Ed. 934.

Hood v. United States, 8 Cir., 152 F.2d 431, was an appeal from a motion to vacate and set aside a judgment and sentence of twenty-five years' imprisonment imposed on each of the appellants. The judgment of conviction was entered on August 2, 1943, and no appeal was taken. The motion to vacate was filed April 30, 1945. In its response the...