State v. Weston
| Decision Date | 12 May 1947 |
| Docket Number | 40296 |
| Parties | State of Missouri, Respondent, v. Chester Weston, Appellant |
| Court | Missouri Supreme Court |
From the Circuit Court of Madison County Criminal Appeal Judge Norwin D. Houser
Affirmed
A jury found Chester Weston guilty of operating a motor vehicle while intoxicated and assessed his punishment at two years in the penitentiary. In passing upon his motion for a new trial the court was of the view that the conviction was proper but thought the punishment greater than the circumstances warranted and, accordingly, the court reduced the punishment to three months in the county jail and a fine of $100.00. Upon this appeal, without brief or argument by appellant's counsel, we are confronted with the record and the assignments of error set forth in his motion for a new trial. Mo. R.S.A., Sec. 4150; State v. Mason, 339 Mo. 874, 98 S.W. 2d 574; State v. Davis, (Mo.) 58 S.W. 2d 305.
Several of the assignments in the motion for a new trial are so interrelated that they may be considered together. It is urged that the defendant was not represented by counsel, that he was not offered counsel and that he did not refuse counsel and therefore his constitutional rights were violated. It is urged that the record shows the defendant ignorant of his rights and incapable of coping with the ability and zeal of the prosecuting attorney who, the motion says, presented the state's case in an unfair manner, thus denying the appellant a fair and impartial trial. It is charged that the defendant was not apprised of his right to subpoena witnesses and that the court erred in permitting the prosecuting attorney to make an argument and to examine witnesses when the defendant was incapable of knowing the rules of evidence and the limitations on arguments. It would appear, in short that all these assignments seek to bring the appellant's case within the rules announced in Williams v Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L. ed. 398 and Tomkins v. Missour-, 323 U.S. 485, 65 S.Ct. 379, 89 L.Ed. 407.
It is further charged that the appellant had previously been tried and convicted of some offense by the court and that the fact of his prior conviction had been given wide publicity and had unduly prejudiced the jury against him. It is also said that the court erred in permitting the jury to try the appellant because a discussion of the case had previously taken place in the presence of the jurors who subsequently tried him, in which the prosecuting attorney had stated that the defendant had agreed to plead guilty. The first of these two latter charges is not substantiated by the record and, of course, is not proved by the mere assertion of the fact in the motion for a new trial. State v. Revard, 341 Mo. 170, 174-175, 106 S.W. 2d 906, 909. If the second charge is borne out by the record it occurred in the extraordinary circumstances indicated in the following paragraphs. However, it is inconceivable that the trial judge would have permitted such a discussion in the presence of jurors who subsequently were to try any of the cases mentioned or that the court would permit the empanelling of a jury disqualified, by reason of prejudice, to try the case. State v. Worden, 331 Mo. 566, 570, 56 S.W. 2d 595, 597.
All of these assignments are based upon these extraordinary circunstances: The appellant's offense of operating a motor vehicle while intoxicated occurred on the 16th day of May 1945. The information was filed September 11, 1945. On the 16th day of October 1945, the record recites, the prosecuting attorney and the appellant appeared in court and the court examined the appellant and developed these facts. The appellant did not have a lawyer to try his case. He had been represented, however, at his preliminary hearing by Senator W. A. Brookshire. He said that he was unable to employ a lawyer and after a rather lengthy discussion the court made an order finding that the appellant was without funds and desired the appointment of counsel and designated Senator Brookshire to represent him and at the same time set November 1st as the date for formal arraignment.
On October 22, at an adjourned term, the record recites that there were three cases before the court, the appellant's case and two cases in which Charles Kemp was a defendant charged with rape and issuing an insufficient funds check. On that day it does not appear that the appellant was present in court. But the prosecuting attorney was present and Senator Brookshire was present asking to be relieved as court appointed counsel in all three cases. It is not necessary to detail Senator Brookshire's lengthy statement to the court but if the jury that tried the appellant was present in the courtroom and heard any discussion prejudicial to his rights it was during Senator Brookshire's statement to the court and the remarks were made by Senator Brookshire or were brought about by his statement. The only thing in the record indicating the presence of a jury was the prosecuting attorney's statement, after Senator Brookshire had concluded, that he resented having all these criminal cases reviewed in the presence of the jury. In any event, at the conclusion of the discussion the court, "for good cause shown," relieved Senator Brookshire of his obligation to defend Weston.
The next record entry shows that the appellant's case was before the court on November 1, 1945. The prosecuting attorney was present and the appellant was present but without counsel. The court then informed the appellant that he was able-bodied and could get money and that it was up to him to do so. (The appellant is twentysix years of age and weighs 200 pounds.) He was told to be in court again on the following Thursday, with a layer, and that if he failed he would be arraigned without a layer. Subsequently the court gave him until December 6th to employ counsel. On December 6th there is the entry "Defendant, present in person without counsel, declares that he has the funds with which to employ counsel and that he will employ counsel as soon as he knows the date the case is set for trial and that he appreciates the benefits of having counsel to represent him." The defendant was then formally arraigned, pleaded not guilty and his case was set for trial on January 18, 1946.
On January 18th there is an entry that the state and the defendant announce ready for trial. There is a recital of the occurrences on December 6th and of the appellant's statement that he had funds with which to employ counsel and that he would do so but "that he is before the court without counsel either by preference, or through his own neglect, and that his constitutional rights have been protected, * * *." The case then proceeded to trial with the appellant representing himself. It may be interpolated here that the prosecuting attorney did not take advantage of the appellant in any respect. On the contrary, the prosecuting attorney was fair and presented his case in an...
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