United States v. Nash

• Decision Date: 03 April 1959
• Docket Number: No. 16119.,16119.
• Citation: 264 F.2d 610
• Parties: UNITED STATES of America ex rel. Ed Eugene JONES, Appellant, v. Elbert V. NASH, Warden, Missouri State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

264 F.2d 610 (1959)

UNITED STATES of America ex rel. Ed Eugene JONES, Appellant, v. Elbert V. NASH, Warden, Missouri State Penitentiary, Appellee.

No. 16119.

United States Court of Appeals Eighth Circuit.

April 3, 1959.

Ed Eugene Jones, pro se.

John M. Dalton, Atty. Gen., and James E. Conway, Asst. Atty. Gen., for appellee.

Before GARDNER, Chief Judge, and VOGEL and MATTHES, Circuit Judges.

VOGEL, Circuit Judge.

The relator, Ed Eugene Jones, claims to be unlawfully confined in the Missouri State Prison. He appeals to this court from a denial of his petition for writ of habeas corpus by the United States District Court for the Western District of Missouri. Relator has exhausted his remedies in the state courts of Missouri and has applied for and been denied certiorari by the United States Supreme Court, Jones v. State of Missouri, 1958, 356 U.S. 940, 78 S.Ct. 784, 2 L.Ed.2d 815. The substance of the relator's claim in District Court and which is reviewed here is that of former jeopardy proscribed by the Fifth Amendment to the Constitution of the United States, which declares that no person shall "* * * be subject for the same offence to be twice put in jeopardy of life or limb * * *."

The relator was arrested on December 10, 1954, was subsequently tried in the Circuit Court of Lawrence County, Missouri, found guilty on July 25, 1955 of burglary and larceny and thereafter sentenced to serve a total of 15 years in prison. While serving such sentence, the relator filed a motion to vacate sentence and judgment of the trial court in accordance with Missouri Supreme Court Rule 27.26, 42 V.A.M.S., alleging that the amended information on which he had been convicted was fatally defective and would not support a conviction for a felony. He also claimed that the information was defective in that "ownership of property was not proven, ownership of alleaged (sic) goods was not proven." Following a hearing, the trial court, on September 11, 1956, ordered, "Hearing granted and sentence vacated and defendant ordered discharged from imprisonment in the penitentiary." The trial court stated, inter alia:

"In the case of State v. Dick Moten, 276 Missouri, Page 354 207 S.W. 768, the Supreme Court held that an information that does not charge that the building alleged to have been burglarized was one wherein goods, wares and merchandise and other valuable things were therein kept and deposited is fatally defective. Under decision in State v. Moten and under my sworn duty it is my duty to sustain the motion of the defendant because he cannot be imprisoned for a term of fifteen (15) years upon charges which are insufficient in law.

"It will be the judgment of the Court that the sentence heretofore imposed upon this defendant was illegal and the judgment sentencing the defendant to imprisonment in the Penitentiary of Missouri for fifteen (15) years is vacated and set aside. The State may, if it so desires, file a correct and amended information in the case. In which event a bench warrant will issue and the defendant will be given the opportunity to give bond or will be held in custody until his trial. Otherwise, the defendant will be discharged from his imprisonment."

Thereafter, the State of Missouri caused notice of appeal to the Supreme Court of Missouri from the trial court's judgment sustaining the motion of the defendant to vacate sentence and judgment. On April 18, 1957, on motion of Jones (respondent in such proceedings) the Supreme Court of Missouri entered the following order:

"At this day comes, the said respondent by attorney and upon his motion, it is considered and adjudged by this Court that the appeal herein be and the same is hereby dismissed, and that the said respondent recover against the said appellant costs and charges herein expended and have therefor execution."

Jones was promptly rearrested and charged in a proper information with burglary and larceny, tried before a jury, found guilty of burglary in the second degree and sentenced to serve a period of confinement in the penitentiary of four years. His petition for writ of habeas corpus to the Supreme Court of the State of Missouri alleging double jeopardy was denied. The United States Supreme Court also denied certiorari, supra. Relator thereupon made application for writ of habeas corpus in the United States District Court. After the issuance of an order to show cause and proper return thereon, the District Court held that a defendant who obtains a reversal of a conviction upon appeal may be retried for the same offense, that this was not a case of double jeopardy and the fact that the relator had served some time on the first and illegal sentence was not a defense to his retrial, conviction and present imprisonment, and the writ of habeas corpus was denied. This appeal followed.

It is the relator's contention that the Supreme Court, by its action of April 18, 1957, did not reverse the trial court. He states:

"Had your appellant been reversed or remanded by the Missouri Supreme Court, under the laws of the said State he could have been retried as claimed by the Appellee, but since this is not true. (sic) Your Appellant second conviction is in strict violation of the Constitution and Criminal laws of both the United States and the State of Missouri."

We think it perfectly clear here that the effect of the State Supreme Court's order was to make final the trial court's order of September 11, 1956, which, at the instance of the relator, vacated and set aside the illegal sentence and judgment and specifically provided that the state could file a correct and amended information. Here the relator, by his motion to the trial court after the first conviction and by his motion in the Supreme Court to dismiss the state's appeal following the trial court's granting of his original motion, caused the original proceedings to become a nullity. These facts do not afford relief on a claim of double jeopardy.

The applicable provision from the Missouri Constitution, insofar as it may be pertinent here, is:

"* * * nor shall any person be put again in jeopardy of life or liberty for the same offense, after being once acquitted by a jury; but if the jury fail to render a verdict * * * and if judgment be arrested after a verdict of guilty on a defective indictment or information, or if judgment on a verdict of guilty be reversed for error in law, the prisoner may be tried

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