State v. Thompson

• Decision Date: 23 July 1965
• Docket Number: No. 2,No. 50728,50728,2
• Citation: State v. Thompson, 392 S.W.2d 617 (Mo. 1965)
• Parties: STATE of Missouri, Respondent, v. Robert Louis THOMPSON, Appellant
• Court: Missouri Supreme Court

Page 617

392 S.W.2d 617

STATE of Missouri, Respondent, v. Robert Louis THOMPSON, Appellant.

No. 50728.

Supreme Court of Missouri, Division No. 2.

July 23, 1965.

Robert W. Schroff, Mann, Walter, Powell, Burkart & Weathers, Springfield, for appellant.

Norman H. Anderson, Atty. Gen., Walter W. Nowotny, Jr., Asst. Atty. Gen., Jefferson City, for respondent.

EAGER, Presiding Judge.

On this appeal we consider the propriety of an order overruling defendant's motion to vacate the judgment of his conviction and a sentence of twenty years. No hearing was held, but the questions which we determine here are purely of law. It is necessary to state in some detail the proceedings of record. The motion to vacate was filed on December 19, 1963, and overruled on January 8, 1964. The original notice of appeal was late, but this court granted leave to file a notice of appeal under Ruly 28.07, V.A.M.R., and such was filed.

Defendant was arrested on a warrant stating the charge against him as attempted robbery; the felony complaint charged the attempted robbery of one Murreldean May Archer. Defendant first waived a preliminary hearing and was bound over to the Circuit Court; there, on March 30, 1961, an information was filed charging that defendant did '* * * wilfully, unlawfully and feloniously, make an assault in and upon one Murreldean May Archer, and did then and there attempt to rob and take from her person valuable property in the presence of and against the will of the said Murreldean May Archer, by putting her in fear of some immediate injury to her person, and did then and there fail in the perpetration thereof, * * *.' On the same day defendant, by counsel, moved to have the cause remanded to the Magistrate Court for a preliminary hearing, and it was so remanded. A preliminary hearing was held and defendant was again bound over to the Circuit Court on May 4, 1961. The State's brief states that the original information was then refiled in the Circuit Court on May 5, 1961, and we shall assume this to be the fact, although the refiling is not shown in our transcript. On August 28, 1961, an amended information was filed charging defendant with assault with malice with a dangerous and deadly weapon; we quote the following from that document: '* * * did then and there in and upon one Murreldean May Archer, feloniously, on purpose and of his malice aforethought, make an assault and did then and there, on purpose and of his malice aforethought, feloniously assault, beat, wound and stab, the said Murreldean May Archer, with a knife, which was then and there a dangerous and deadly weapon likely to produce death and great bodily harm, which knife he, the said Robert Louis Thompson, then and there had and held in his hand, with intent then and there, the said Robert Louis Thompson, on purpose and of his malice aforethought, feloniously to rob the said Murreldean May Archer, * * *.'

The case was called for trial on October 30, 1961, and just prior to trial defendant's counsel moved to dismiss the charge against defendant for the reasons: '* * * that said charge does not state a charge upon which the Court may criminally convict this defendant and for the further reason that this defendant has not been properly arraigned in the Magistrate Court of Greene County, Missouri, and been accorded due process of law on the charge now pending against this defendant in this criminal cause.' A colloquy then ensued between the court and counsel, defense counsel stating that a new and distinct charge had been filed which was not a 'lesser charge,' while the prosecutor insisted that the facts 'surrounding each of these charges' would be the same and, in essence, that there could have been no difference in the preliminary hearing, that an assault was involved in each charge and that the new charge carried a 'lighter sentence.' The court stated that the amended information did not 'show a great deal of difference from the original information,' except by going into somewhat greater detail, in showing the means of the assault and adding the element of malice, and that the defense was not substantially changed. It concluded that there was not sufficient variance to justify a dismissal. The motion to dismiss was overruled.

The case was tried by the court, upon waiver of a jury. The full trial transcript has been brought here on this appeal, and defendant has been represented by counsel. It will no be necessary to state the evidence in any detail. There was some sort of altercation and physical embroilment between the defendant and one Murreldean May Archer on the evening of March 23, 1961, in a Springfield laundromat. She testified that as she worked at a tub or bench defendant entered the place, walked behind her, grabbed her and swung her around saying 'this is a robbery'; that he had a knife in his hand, that she screamed and fought, that he stabbed her in the chest and cut her at other places, but she broke loose and ran outside; that this man, whom she positively identified as the defendant, then ran out the back door; that her purse was on a chair nearby and she later recovered it. She denied ever knowing or having had anything to do with defendant previously. Defendant, a negro, testifying in his own behalf, stated: that this young woman, using a different name, had called him and had driven to his home in an effort to make dates with him, and that he, though seeking to avoid her because of unconnected prior troubles, had met her at the laundromat by appointment; further, that a brief conversation ensued, that he indicated that he did not wish to become involved, and that she took his knife which was protruding from his 'watchpocket' and opened it; that he reached for the knife and cut his finger; that he grabbed her wrist and as they struggled she fell up against a washer or dryer, and then started running and screaming; the knife dropped and he picked it up and left. Essentially, he testified that he did not intentionally stab her or cut her and that he had no intention of robbing her on harming her. The evidence, which was in much greater detail than this recital, might have been appropriate to a charge of attempted robbery or to one of assault with a deadly weapon.

The court found defendant guilty 'of attempted robbery as charged in the information.' That recital appeared in the official judgment record written by the clerk; on the judge's minutes the notation was that the court found the defendant 'guilty as charged in the information.' The formal record of the judgment thus appeared as a conviction for 'attempted robbery.' Shortly before the case was argued here on this appeal, over the objection of defendant's counsel, and after hearing the testimony of the clerk, the judgment record was ordered corrected nunc pro tunc to show that defendant was tried and convicted of the crime of assault with malice with intent to rob. We shall not reach the question of the property of the method followed in making that order (which is complained of here), for we find a fatal error in the record prior to that time.

There can be no doubt whatever that from the filing of the felony complaint in the Magistrate Court until the filing of the amended information on August 28, 1961, the defendant was charged solely with attempted robbery. The phrase 'did * * * make an assault in and upon' is a rather timeworn and probably superfluous phrase commonly used in robbery informations, and the original information was solely one for attempted robbery. The allegations concerning robbery were in conformity with Sec. 560.120, RSMo 1959, V.A.M.S. ¹ The offense of attempted robbery is based upon that section which defines the offense of first degree robbery, Sec. 560.135 prescribing the punishment therefor, and Sec. 556.150 which defines as a crime any unsuccessful attempt to commit a criminal offense and the punishment therefor. Defendant was not charged in the original information with the use of a dangerous and deadly weapon, so it is obvious that the maximum punishment for attempted robbery would have been a term of ten years, Sec. 556.150(2), since the punishment for the completed crime could not have been greater than life imprisonment. The robbery statutes are classified as 'Offenses Against Property,' Chapter 560.

The amended information follows very specifically the wording of Sec. 559.180, which is often referred to as the 'assault with malice' section of the statutes. This section appears in a different classification, namely, 'Offenses Against Persons,' Chapter 559. In the amended information the 'assault' became, for the first time, the dominant charge, coupled with allegations of malice and the use of a deadly weapon,...