The State v. McFadden

• Citation: 274 S.W. 354,309 Mo. 112
• Decision Date: 05 June 1925
• Docket Number: 26172
• Parties: THE STATE v. TIM McFADDEN, Appellant
• Court: United States State Supreme Court of Missouri

274 S.W. 354

309 Mo. 112

THE STATE v. TIM McFADDEN, Appellant

No. 26172

Supreme Court of Missouri

June 5, 1925

Appeal from Jackson Circuit Court; Hon. James II. Austin Judge.

Reversed and remanded.

J Francis O'Sullivan and Isadore Rich for appellant.

(1) The court erred in overruling the appellant's motion for a new trial, motion to set aside the plea of guilty and the motion in arrest of judgment. State v. Stephens, 71 Mo. 535; State v. Dale, 282 Mo. 663; State v Meyer, 222 S.W. 765; State v. Meyer, 293 Mo. 112; Henslee v. Cannefax, 49 Mo. 295; 2 Archibald, 334; 2 Hawkins P. C. 469; 2 Hale P. C. 225; 1 Bishop's Criminal Practice, sec. 465; Davis v. State, 20 Ga. 674. (2) The information upon which the plea of guilty was accepted is fatally defective, and does not state any facts sufficient to constitute the offense sought to be charged. (a) It neither charges the assault was with a deadly weapon, nor any facts or description of any weapon which would import its deadly character. State v. Williams, 191 Mo. 205; State v. Laycock, 141 Mo. 274; State v. Keele, 105 Mo. 38. (b) It is defective in that while it charges that one Helen M. Anderson is the person who was intended to be robbed, the assault is alleged to have been made upon her brother, the assistant prosecuting attorney, who swore to the information.

Robert W. Otto, Attorney-General, for respondent; Will R. Frank of counsel.

(1) The motion to set aside plea of guilty, motion for new trial and motion in arrest were not filed until after judgment and sentence. This leaves the record proper only before the court. State v. Dunnegan, 258 Mo. 376; State v. Taylor, 256 S.W. 1059; State v. Caulder, 256 S.W. 1063. The record shows no objection made by appellant to the action of the court in pronouncing judgment before his motions for new trial and in arrest of judgment were filed. His motions after judgment are filed out of time and too late to be considered. State v. Dunnegan, 258 Mo. 375. (2) The information is sufficient and fully informs the appellant of the charge against him. Sec. 3263, R. S. 1919; Kelley's Criminal Law (3 Ed.) sec. 579; State v. Seward, 42 Mo. 206; State v. Spaugh, 199 Mo. 149; Secs. 3262, 3263, R. S. 1919. It makes no difference what the pleader had in mind if the information charged an offense under Section 3263. The words "on purpose or of malice aforethought," may be disregarded as surplusage, and the information, if otherwise sufficient, would charge an offense under the latter section. Kelley's Criminal Law (3 Ed.) sec. 579; State v. Seward, 42 Mo. 206; State v. Spaugh, 199 Mo. 147. Under Section 3263 it is not necessary to charge that the assault was made with a deadly weapon, unless the intent be to kill or do great bodily harm, and it is not necessary to allege or show that the assault was dangerous to life or likely to produce great bodily harm. The gist of the offense is the assault with intent to rob. Any kind of an assault by any means whatever with intent to rob is within this section. (3) The punishment assessed is excessive. Appellant should have been allowed allocution before judgment. Sec. 4057, R. S. 1919; State v. Taylor, 256 S.W. 1059; State v. Caulder, 256 S.W. 1063; Sec. 3263, R. S. 1919. (4) Failure to accord allocution does not entitle appellant to another trial, but it will be necessary in this case to reverse the judgment and remand the cause with directions to have appellant brought before the court for allocution and judgment as provided by Sec. 4057, R. S. 1919. State v. Caulder, 256 S.W. 1063; State v. Taylor, 256 S.W. 1059.

OPINION

White, J.

We experience difficulty in determining whether there is any record here which enables us to consider this case at all. However, the Attorney-General and the counsel for defendant in their briefs agree in the statement that the record proper is before us and agree as to what it contains. We will, therefore, consider it as presented by them.

The record shows that an information was filed in the criminal division of the Circuit Court of Jackson County, July 29, 1924, in which the defendant and one John Gurtis were charged with assault upon one Helen M. Anderson with intent to rob. A severance was granted, and he entered a plea of not guilty.

On August 8, 1924, a change of venue was granted, the cause transferred to Division 9 of the Jackson County Circuit Court.

On August 8, 1924, the defendant withdrew his plea of not guilty, and entered a plea of guilty, and sentence was deferred.

On September 5, 1924, the court pronounced judgment and sentenced the defendant McFadden to imprisonment in the penitentiary for thirty years. There was no allocution.

On September 6, 1924, the defendant filed a motion for a new trial and a motion in arrest, and a motion to set aside the plea of guilty, and for permission to enter plea of not guilty.

On September 8, 1924, the court, after taking evidence on the motion for a new trial and the motion to set aside the plea of guilty, overruled all of said motions. The defendant then appealed.

I. A question arises whether a bill of exceptions, properly authenticated, is before us for consideration -- whether there is any record of its filing. The motion for a new trial was not filed until more than four days after the plea of guilty. A peculiar question arises in regard to the motion to set aside the plea of guilty, and for permission to enter a plea of not guilty filed after judgment. It could not be mentioned in the motion for new trial, if the latter had been filed in time. The motion assigns as reason for that request that the information was presented by James H. Anderson, assistant prosecuting attorney, whose sister, Helen M. Anderson, is alleged to have been assaulted by the defendant. That Anderson induced the defendant to plead guilty by certain "representations, warranties and guaranties" with which Anderson was powerless to comply; that Anderson desired the defendant to appear as a witness against his co-indictee John Gurtis, and to reveal the name of the third negro who participated in the assault; that Gurtis, at the time of the assault, had threatened to do further violence to Helen M. Anderson, and was prevented by McFadden; that Anderson, in the presence of Detective Higgins, told McFadden that if he would reveal the identity of the other negro and testify to the facts about the attempted robbery by Gurtis, and would plead guilty, that he, Anderson, would see that his punishment was assessed at not exceeding five years.

Appellant says in his brief that Anderson testified to these facts, as did Higgins, and also James F. Aylward, attorney for appellant; that no evidence was offered by the State to contradict this evidence of the inducements and promises held out to McFadden to induce him to plead guilty; that nothing was said about these guaranties to the judge of the court and without knowledge of them he sentenced the defendant to imprisonment for thirty years; that defendant then for the first time realized that Anderson could not live up to his agreement in the matter, and for that reason asked the court to permit him to withdraw his plea of guilty and enter a plea of not guilty. Manifestly, if the motion for new trial had been filed in time, the matters presented in this motion to set aside the plea of guilty could not have been incorporated in it, because it could not be filed until after a judgment, nor until the defendant was apprised of the failure of the State to live up to its agreement. However, we find that we are able to dispose of the case without determining whether a proper record may be made of...