The State v. Borchert

• Decision Date: 06 January 1926
• Citation: 279 S.W. 72,312 Mo. 447
• Parties: THE STATE v. CLYDE M. BORCHERT, Plaintiff in Error
• Court: Missouri Supreme Court

279 S.W. 72

312 Mo. 447

THE STATE v. CLYDE M. BORCHERT, Plaintiff in Error

Supreme Court of Missouri

January 6, 1926

Writ of Error to Jackson Circuit Court; Hon. Thad B Landon, Judge.

Affirmed.

Ira B. McLaughlin and P. H. Jackson for plaintiff in error.

(1) The record does not show a formal arraignment. 16 C. J. 386, 387 sec. 711; State v. O'Kelley, 258 Mo. 345; State v. Witherspoon, 231 Mo. 706; State v Harris, 225 Mo. 639; State v. Cisco, 186 Mo. 49; State v. Hunter, 181 Mo. 316; State v. Hopper, 142 Mo. 478; State v. Walker, 119 Mo. 467; State v. Williams, 117 Mo. 379; State v. Taylor, 111 Mo. 448; State v. Allen, 267 Mo. 49; State v. Coleman, 262 S.W. 424; State v. Roberts, 294 Mo. 284; State v. Hascall, 284 Mo. 607; State v. Jennings, 278 Mo. 544; State v. Bowman, 213 S.W. 97; State v. Loesch, 180 S.W. 875; State v. Gould, 261 Mo. 694; Sec. 3958, R. S. 1919, amended, Laws 1925, p. 196; Ex parte Dusenberry, 97 Mo. 504; Hallinger v. Davis, 146 U.S. 314, 36 Law Ed. 986. (2) The plea is insufficient to support a judgment. Sec. 3247, R. S. 1919, amended, Laws 1921, p. 284a; Sec. 3249, R. S. 1919; Sec. 3248, R. S. 1919; amended, Laws 1921, p. 284a; State v. Davis, 237 Mo. 237; State v. Perrigin, 258 Mo. 233; State v. Shearon, 183 S.W. 293; State v. McNabb, 267 S.W. 606; Secs. 4047, 4048, R. S. 1919; State v. Griffin, 278 Mo. 436; State v. Modlin, 197 Mo. 376; State v. DeWitt, 186 Mo. 61; State v. Pollock, 105 Mo.App. 273; State v. Cronin, 189 Mo. 663; State v. Jones, 114 Mo.App. 343; State v. Grossman, 214 Mo. 233; State v. Holland, 162 Mo.App. 678; State v. Washington, 242 Mo. 401; State v. Young, 215 S.W. 499; State v. Griffin, 228 S.W. 800; State v. Hinton, 299 Mo. 507; Secs. 1544, 1545, 1546, 1547, R. S. 1919; 16 C. J. 390, sec. 715; State v. Miller, 255 Mo. 223. (3) The record fails to show allocution. State v. West, 270 S.W. 279; State v. McSame, 267 S.W. 888; State v. Huffman, 267 S.W. 838; State v. Cantrell, 263 S.W. 177; State v. Keller, 304 Mo. 63; State v. Deck, 262 S.W. 712; State v. Caulder, 301 Mo. 276; State v. Taylor, 301 Mo. 432; State v. Dunnegan, 258 Mo. 373; State v. Kile, 231 Mo. 59; Schwab v. Berggren, 143 U.S. 442, 36 Law Ed. 218; Ball v. United States, 140 U.S. 118, 35 Law Ed. 377; The King v. Speke, 3 Salk. 358; Rex & Regina v. Geary, 2 Salk. 630.

Robert W. Otto, Attorney-General, and J. Henry Caruthers, Assistant Attorney-General, for defendant in error.

(1) The information is good. Sec. 3247, R. S. 1919, amended, Laws 1921, p. 284a; State v. George, 221 Mo. 520. (2) The record recites that: "Now comes the prosecuting attorney, comes also the defendant, Clyde M. Borchert, in person and by his attorney, Edw. Doerr, and after consulting with his attorney and friends, for his plea says he is guilty of rape." This is tantamount to formal arraignment. Sec. 3958, R. S. 1919, amended, Laws 1925, p. 196; State v. O'Kelley, 258 Mo. 349; State v. Loesch, 180 S.W. 879; State v. Hunter, 181 Mo. 332. (3) The judgment is responsive to the confession of guilt, and sentence was passed by the court in conformity thereto. Sec. 4048, R. S. 1919, amended, Laws 1925, p. 197; State v. Reich, 293 Mo. 426; State v. Davis, 237 Mo. 240. (4) The defendant plead guilty. Our statute (Section 4057) provides that: "When the defendant appears for judgment, he must be informed by the court of the verdict of the jury, and asked whether he has legal cause to show why judgment should not be pronounced against him; and if no such sufficient cause be shown against it, the court must render the proper judgment." The court can hold this record sufficient on two grounds: (a) That allocution is required only after a trial and verdict of guilty. (b) That the trial court is presumed to have done its duty and allowed allocution. Sec. 4057, R. S. 1919; Bond v. State, 23 Ohio St. 357; Carper v. State, 27 Ohio St. 576; Bartlett v. State, 28 Ohio St. 672; State v. Caulder, 301 Mo. 280; State v. Hoyt, 47 Conn. 542; Sarah v. State, 28 Ga. 583; Gannon v. People, 127 Ill. 521; People v. Palmer, 105 Mich. 579; Dutton v. State, 123 Md. 381; Warner v. State, 56 N. J. L. 694.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On August 25, 1924, the Assistant Prosecuting Attorney of Jackson County, Missouri, filed in the circuit court of said county a verified information which, without caption, signature and jurat, reads as follows:

"Now comes Charles W. Brady, Assistant Prosecuting Attorney, for the State of Missouri, in and for the body of the County of Jackson, and upon his oath informs the court that Clyde M. Borchert whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, on the 24th day of August, 1924, at the County of Jackson, State of Missouri, in and upon one Vallie Borchert, a female child under the age of sixteen years, to-wit: of the age of eight years, unlawfully and feloniously did make an assault and her the said Vallie Borchert, then and there unlawfully and feloniously did carnally know and abuse, against the peace and dignity of the State."

On the said 25th day of August 1924, the record of the circuit court aforesaid recites the following:

"Now comes the prosecuting attorney, comes also the defendant Clyde M. Borchert, in person and by his attorney Edw. Doerr, and after consulting with his attorney and friends for his plea says he is guilty of rape, and the court fixes the punishment of said defendant at a term of and for and during his natural life in the Penitentiary of the State of Missouri.

"It is therefore considered and adjudged by the court, that said defendant Clyde M. Borchert do undergo confinement in the Penitentiary of the State of Missouri, for and during his natural life, for said offense of rape; that the State of Missouri have and recover of and from said defendant all costs herein, and that execution issue therefor, and the court further orders that said defendant be remanded to the custody of the Marshal of Jackson County, and that said marshal deliver said defendant into the custody of the proper officer in charge of said Penitentiary, therein to be confined as aforesaid."

On August 22, 1925, a writ of error was issued by this court to the circuit court aforesaid, requiring the latter to send to this court a certified copy of the record and proceedings in the above case of State of Missouri v. Clyde M. Borchert. On September 14, 1925, the Clerk of the Jackson Circuit Court filed in this court, as a return to said writ of error, a certified copy of the record and judgment aforesaid, there being no other proceedings of record in said cause.

Timely notice of the issuing of said writ of error was served on the Attorney General on September 14, 1925.

The questions presented to the court will be considered in the opinion.

I. The judgment of the trial court bears date of August 25, 1924. The writ of error was issued in this case on August 22, 1925. It does not appear from the record, where defendant was located during the intervening time, but in the absence of evidence to the contrary it will be presumed that he is in the penitentiary, pursuant to the judgment and sentence of the court below. While the suing out of a writ of error has been held in this State to be the commencement of a new suit, yet, when issued, it brings before this court for review the matters which might have been brought here by appeal. [Macklin v. Allenberg, 100 Mo. l. c. 344; Ring v. Ry. Co., 112 Mo. l. c. 227; Thornbrugh v. Hall, 263 S.W. l. c. 147.]

II. It may be conceded for the purposes of the argument, that defendant can take advantage of any material defect in the record below, although it is raised here for the first time. [State v. Levy, 119 Mo. l. c. 437 and cases cited; State v. Kelley, 206 Mo. l. c. 693; State v. Henschel, 250 Mo. l. c. 269; State v. Reppley, 278 Mo. l. c. 338; State v. Pearson, 288 Mo. l. c. 105-6.]

III. The record of the circuit court, in respect to those matters recited therein, imports absolute verity, and cannot be contradicted by matters de hors the record. [State v. Whalen, 297 Mo. l. c. 247 and cases cited; Fitzgerald v. De Soto Special Rd. Dist., 195 S.W. l. c. 696-7; Stimson v. Min. Co., 264 Mo. l. c. 205; Atkinson v. Ry. Co., 81 Mo. l. c. 54.]

The judgment below affirmatively recites that:

"Now comes the prosecuting attorney, comes also the defendant Clyde M. Borchert, in person and by his attorney Edw. Doerr, and after consulting with his attorney and friends for his plea says he is guilty of rape," etc.

Section 3682a, Revised Statutes 1919, as amended in the Laws of 1923, at page 159, provides that:

"Any judge, . . . who shall accept of any plea of guilty without first giving the person charged with an offense an opportunity and reasonable time to talk with a friend and an attorney, shall be deemed guilty of a misdemeanor, and on conviction shall be punished by a fine of not exceeding one hundred dollars, or by imprisonment in the county jail not exceeding three months, or by both such fine and imprisonment; and in addition, shall forfeit his said office."

The recitals in the judgment supra, comply with above law, and must be taken as true in this proceeding.

IV. The information heretofore set out informed the defendant as to the charge against him, and fully meets the requirements of the law. [Sec. 3247, R. S. 1919, as amended, Laws 1921, p. 284a; State v. Turner, 274 S.W. 35; State v. Hutchens, 271 S.W. l. c. 526-7; State v. Ansel, 256 S.W. 762; State v. George, 221 Mo. l. c. 520-1.]

V. It is contended by defendant, that the judgment aforesaid should be reversed, because the record "does not show a formal arraingment," although it affirmatively shows, that both defendant and prosecuting attorney were before the court,...