*1 error, “(t)he not sufficient cure the hy- plainly fairly should
instructions JEFFERSON, Movant-Appellant, Alvin C. pothesize guilt.” that defense as did v. Gale, Mo., In Missouri, Respondent. STATE it was observed that “innocent intention No. 53966. find jury a matter for the and re- here but there as “that does solve” Supreme Missouri, Court problem the court of whether solve Division 1.No. failing jury erred to instruct June upon the inno- some manner defendant’s intention, being intention the gist cent ‘lar 'stealing’ as well as of
the offense ” ceny.’ again there here: And “Even
though possession his conduct recent property prima made a facie case stolen * * * where the claims property in cir possession
came into
cumstances which he intention of it,
stealing man the court should some subject.” jury on
ner instruct the
short, “purchase,” supported defense of possession,
or of innocent re some other
pels inference, very es the essential stealing, “to
sence of offense of inten
tionally property steal another”
(RSMo Supp., 560.156) and ne § necessary
cessity “question(s) is a jury’s) guidance returning (the
for their Rule 26.02(6);
their verdict.” Cr. V.A. Drane, 546.070; Mo.,
M.S. State v. § in plainly
S.W.2d 105. Thus the defense of possession part
nocent is a law the failure
case and the to instruct the subject prejudicial constituted error accordingly reversed
and the cause remanded. C.,
STOCKARD, sitting.
PRITCHARD, C., concurs.
PER CURIAM. BARRETT, opinion by foregoing the court.
C., opinion of adopted as the DONNELLY,
FINCH, MOR- J., and P. HOLMAN, JJ., concur.
GAN *2 Fritz, Malden, appellant.
Gordon Gen., Anderson, Atty. Rich- Norman H. Gen., Atty. Ashby, ard C. Asst. Jefferson City, respondent. HOUSER, Commissioner. appeal
This is an from an order denying motions Alvin C. under Crim- inal 27.26, V.A.M.R., Rules 27.25 and vacate a sentence convic- plea tion and withdraw defendant, September On then aged years, pleaded guilty ato reduced charge of murder second to 40 years’ imprisonment. sentenced defendant, On November an in- mate penitentiary, filed this motion vacate, “harassed, alleging that he was brow-beat and grave pun- threatened with agreed ishment until sign a statement confession”; awas and/or at the time of arrest but was never before juvenile and that authorities his voluntary was not but was product of coercion fear. On March filed motion to withdraw his of guilty, alleging was involuntary and was made as a result coercion mental for fear signed that his confession would trial, used him at for the other reasons stated motion to vacate. evidentiary was held full support of the motions
these motions. counsel, defendant, testified represented court rec- personally and introduced the arrest, day January of his ords. On 30, 1957, found that magistrate age, juvenile, years of the case to and transferred certified February court. On He court ordered defendant was “scared” and signed confused. He prosecuted under written lie, confession which awas be- magistrate he felt was remanded to cause he had cause no other choice. He examination, fol- preliminary talked to court-appointed lawyers court for twice. *3 They explained was filed in lowing an information the which situation to him and the charging penalties involved; court defendant with first circuit told him that the degree ap- The court confession against murder. could be used him at the represent to defend- trial and pointed two that plead guilty recommended he to degree pleaded ant. After conferences between defendant second murder. He appeared in his defendant because he had and counsel “no other choice.” accompanied his two law- He by penalty was afraid of the death circuit court if informed the he yers. faced Defendant’s the and was “half scared to prosecuting agreement with the He court of an death.” recalled been examined degree attorney plead guilty hospital acknowledged to second at to the state and that years.” forty term of charge murder “with a when asked there about the any by unwilling striking grandmother setting The his judge, be bound and the accept on agreement, the on he told them that refused house fire was what happened. and allow defendant no (The that basis offered to examination revealed Defendant, psychosis. his the super- to withdraw It was the that he interrogated by hospital the stated of the that intendent defendant on; that that sane.) pleading was knew was He he was going understood what knew degree guilty second re- pleading guilty he was second murder. He so, and at the telling got and wished do membered the murder wood, briefly lady” the related the hit old on request of stick of “the twice killing grand- of his surrounding neighbor’s his head and then went to a facts gave grandmother’s house and them that his mother. Defendant’s counsel told defendant’s an extensive review of house was on fire. detailing incidents background, numerous testimony contradicted was life, demonstrating intimate Defendant’s past
in his magistrate sheriff, deputies, of defendant’s knowledge of the case and two condition, special attitudes, need attorneys. mental One and one of defendant’s handling possibilities of rehabilitation. he time did at no testified that deputy attorney recommended prosecuting The any- defendant threaten, slap abuse or years’ imprisonment and the court forty participated in way. deputy who The accepted the recommendation. questions were testified that arrest jail; the drive to on defendant asked defend- and 27.26 hearing At the 27.25 name, his asked he was jail that at following set facts: testified ant him, booking purpose of for the age, etc. Ar- grade education. had fourth He only question was other that January at on rested 5 P.M. shirt; his drop blood source hand- deputy, and a threats sheriff time made at no deputy that the did him and struck officer defendant or and not cuffed or anyone strike or threaten jail. He was not see hear directly county to the but deputy not recall whether The did him. of his not advised right his talk with a defendant was advised of opportunity to denied an The family. right silent or his to counsel. his main lawyer or to communicate long magistrate testified that no threatened given after one written confession presence defendant in his that room. There defend- interrogation a small complaint ant possibility magistrate made no to the to the references threats twice he had An officer been threatened or struck. gas chamber. getting The hands. sheriff night his testified that head with defendant’s struck competent, furnished with deputy asked defendant defendant was the arrest ably represented shirt; attorneys experienced got the on his who where he blood worthy be- him; “just “is questioned sheriff defendant lief, believe does not day in the and the Court following few minutes” the and ver- testimony” respect physical presence jailer; that he did not officers, and found bal mistreatment threaten defendant time do voluntarily. The him, that he made his physical offer to do violence that consideration also that no one did that observed else knowl- perjury filing might be edge; did not at time charge against defendant. complain to the sheriff by anyone. threatened or abused point is that the court Defendant’s first *4 sheriff did in- not remember whether overruling erred in the motion to vacate formed defendant of his rights before plea guilty because his of was not voluntar- him, questioning telling and denied defend- ily product of fear and made but was the gas ant put that could be in the chamber practiced by coercion law enforcement of- imprisonment. or sentenced life to in due ficers violation of process. Defendant, age, counting his Attorney Elbert Ford testified that he experience, limited fear education of discussed with defendant the seriousness capital punishment, physical and mental of the charge only and advised him of the abuse, custody questioning police without punishments two for first murder. friend, attorney obtaining or of the con- Mr. Ford asked defendant whether he was fessions, claims that he did not make promised anything to make the two confes- reasoned choice. ; sions whether there was duress or threats; anyone whether struck or hit him prisoner “The has the burden of or scared into making him them. Defend- establishing grounds by pre his for relief ant advised Mr. that Ford the sheriff and evidence,” ponderance of the Rule Criminal other so, officers had not done and he made 27.26(f), appellate review is “limited complaint to Mr. Ford that he had been to a findings, whether the determination of physically abused, choked, slap- or beaten conclusions and the trial of ped. Defendant referred to boys some clearly are erroneous.” Rule 27.- Criminal jail who had told defendant “about 26(j). State, Mo.Sup., In Crosswhite v. hangings and what all he going get 67, 70, Court, quoting 426 S.W.2d this with and what they him, were going to do approval from United States v. United that just death, he was scared to and even Co., 364, 395, Gypsum States 333 U.S. told him boogerman about the and the dev- 525, 542, S.Ct. L.Ed. indicated that il, that, and things you know, like and he determining finding the test in whether a said the reason he the statements [made clearly is erroneous is whether the review he was scared.” It was Mr. that] ing court on the entire record left Ford’s plea that the guilty of the definite and firm that a mis conviction voluntarily product and was not the take has been A committed. review of fear; of that the time defendant enter- this record lead does not conviction. plea ed “gotten his he had over his being contrary, On the our conclusion that de scared”; boys frightened that the who de- physical fendant has failed to establish or fendant jail left the several months before mental find coercion or duress and that the pleaded guilty. ings clearly the trial are er At the conclusion cir- roneous. Whether defendant’s was in judge defendant; cuit against physical duced found or mental coercion procedure complied presented the then-exist- duress issue of fact juveniles; trial ing governing findings presump con- whose are violated; tively stitutional were not correct and are be sustained unless defendant, clearly (or confronting This is not de novo erroneous. choice dilemma) State, supra. necessity There Crosswhite but the making choice did view. testimony on the issue was a conflict wrongful not constitute coercion or duress judge of coercion and duress. The circuit the meaning within the law. State v. Carter, testimony and that of Mo.Sup., heard defendant’s As Freedman, The trial Mo.Sup., officers contradicted him. who stated State v. 576, 581, judge opportunity judge a full “Appellant exercised S.W.2d credibility credibility. their He a full decided knowl- own volition choice with defendant, him un- finding entering a edge issue facts belief, that de- worthy intimating guilty taking with the court his chances perjured risking fendant had defer trial punishment, himself. We than rather superior opportunity person may the trial judge’s jury.” of the cause accurately appraise veracity the wit- pleaded say guilty heard not be uphold nesses and review to save It is not duress order himself. finding attorney agree' court’s defendant’s neither prosecuting for the punish- written nor his capital confessions one the charge reduce by physical imprisonment was induced mental abuse ment for which limited to years officers. term if the will *5 “Yet, plead guilty charge. to the lesser by prejudice Defendant suggests obviously, greater ‘fear’ the sentence of guilty the fact that reason of of may plea. induce a Petitioner must show by was induced the of the confes existence subjected promises threats or that he was voluntarily sions. If the confessions were ”*** v. illegitimate of Kent action. made, voluntarily and and if the was Cir., States, United 272 F.2d made, the understandably of the existence satisfactorily Defendant has not plea. It has confessions does not taint the showing. such pro repeatedly held a that confession upon a attack vides no basis for collateral is that the point Defendant’s next court a upon a entered judgment of conviction erred to vacate be- overruling the motion Busby v. guilty voluntarily made. of defendant, cause the that a evidence showed Cir., 75, 78; Holman, v. Reed 356 F.2d minor, directly was not before cir- taken the Cir., 995, 997, Henderson, both 385 F.2d cuit court at the time his arrest. At the of Young quoted approval cited question, January time of the events in Missouri, Mo.Sup., v. 438 S.W.2d of State law, then-existing the RSMo § 10, 1969); on (Decided March 211.350, provided follows: “When 732, 734. Young, Mo.Sup., county age such a child under of years charged seventeen with or without That defendant arrested warrant, murder, shall, being such the alternative child instead of first knew imprisonment; magistrate, po- trial penalties for a death or life before or of magistrate, that lice jury judge and feared or other court knew that a could having jurisdiction one now or hereafter guilty find him and assess would charged, went offense direct penalties him if he be taken before these court; circuit charge, these con or if the child shall have to trial that and that on plead a police been taken impelled magistrate before a or siderations defendant court, magistrate take the it charge judge or such other lesser to a shall imprisonment long duty magistrate term be said penalty for or police upsetting magistrate years, ground judge or transfer the presents no for court, case to the circuit voluntar and of officer judgment of conviction otherwise having the child in ily plead guilty charge take such made. Whether at a trial child take before said and the said charge or his chances lesser proceed shall jury was a greater charge hear the case.”
H reformatory ject magistrate It is evident from be dealt with under the provisions chapter.” that following court record all occurred January 1957: or com on An affidavit circuit entered waiver order court; plaint magistrate was filed February “Now on recites: warrant issued and was arrest executed day, prosecut- on this oral motion of the ing producing defendant and him before ing attorney, prosecut- defendant ordered court; that the court that defendant found ed under the and cause General Law trans was made an order Magistrate preliminary manded to Court for certifying ferring and defendant that There recital examination.” was no charge the circuit division of court; present defendant that his appears court. Thus defendant parents guardian present, were or noti- magistrate “taken trial” before the fied; attorney defendant had an and that his case was transferred to counsel, represent him or waived the mandate of obedience to hearing that a were conducted. There the statute. findings; no reasons the ac- given point only relating Defendant makes the further tion taken. The evidence be hearing violated waiver some inconclusive granted testimony was not cause he He remem- defendant. whether he should bered been taken before Circuit prosecuted Judge under between and 15th Goodman the 10th represented by days February, time seeing was not at the 1965. He recalled Feb judge day court entered its order but did not “know ruary waiving jurisdiction. Citing things Unquestionably he said.” States, Kent did v. United 383 U.S. S. have counsel There is that time. argues appointment Ct. no record until of counsel *6 that, severity punish of the because of the after the information filed in circuit ment a can re minor accused murder of court. law, prosecuted if general ceive under the States, supra, In Kent v. a United under requires a process
due accorded he be juvenile juvenile act authorizing the counsel, hearing, juvenile the jurisdiction court waive the district to to jurisdiction. court waives investigation,” court after “full the Su February preme The statute in waiver effect on the United held Court of States 211.520,1 permit procedure which juvenile 1957 RSMo the act did not § the provided: then “In reaching the discretion of “for result of such tremendous any of judge having jurisdiction consequences ceremony of without —without delinquent provisions hearing, children of under the without effective assistance of counsel, any petition to chapter, alleging this a child reasons.” without statement of U.S., delinquent may such The be be 383 l. c. 86 l. c. 1053. dismissed and S.Ct. law, and prosecuted general jurisdiction child under court held that the waiver the of motion, ‘critically important’ any petition application, made to “is action determin juris- ing vitally important the judge having general statutory rights of court or U.S., causes, juvenile,” l. c. transfer the 383 c. diction of criminal 86 S.Ct. l. to 1055; any delinquent upon “is the charge against case of or incumbent Juve accompany de- child a court nile Court to its waiver order jurisdiction of con provisions under of with a statement of the reasons or linquent children the therefor,” U.S., may discre- siderations 383 l. c. 86 chapter, be denied in the the setting l. c. forth the basis of judge, the when the of S.Ct. 1057 tion of in permit sufficiently meaningful proper child is sub- order judge the such not 1957, p. 211.071, 1959). (now Repealed 642 Laws RSMo § 12 view; opportunity that an hearing for a conclusion, We reach this not the basis child, given must be the hearing which are not to be retrospective “must up measure the essentials effect,2 of due but on the basis of waiver. process treatment,” and fair U.S., c. Kent, l. 383 Black and Gault cases are dis- 1057; l. c. S.Ct. that under Black tinguished the ground that the defend- States, v. United U.S.App.D.C. 393, in ants those cases did not waive the de- F.2d child is the entitled counsel in juvenile in fects proceedings, connection proceeding, with a waiver and whereas did. Kent and Black . right representation is not a voluntary pleas convicted on formality
mere
grudging
gesture
delinquent
adjudged
Nor was Gault
requirement
ritualistic
but is of the essence by
In
Black
is-
confession.
Kent and
of justice.
tried;
guilt
in
sue
or innocence was
non;
vel
delinquency
issue was
Gault
supra,
In Black v. United
States,
unsuccessfully
cases
in all three
juvenile
jurisdiction,
court waived
defend-
objected
regularity
to the
protested and
ant was
district
tried in
court and con-
court, and
juvenile
proceedings
in the
appeals
victed. The court of
reversed the
to or ac-
none of them did
submit
in
conviction on the ground that defendant
way
the de-
waive
quiesce
or in
not represented by
counsel
Not
proceedings.
the juvenile
ficiencies
proceeding
waiver
He waived
in the case
so
Jefferson.
because that
court failed
“full
conduct
have
might otherwise
objections he
waiver,
investigation”
in the
proceedings
required
juvenile code.
two com-
when,
appointment
after
ad-
their
Gault,
benefit
re
U.S.
87 S.Ct.
petent
a motion
file
questions
counsel,
failed
involved
due
vice and
requesting
process in
division
adjudication
connection with
criminal
information, or remand
of delinquency
court and
dismissal
aof
conduct
proceedings,
for the
propriety
but
waiver
division
present and
Supreme
United
Court
therein
States
proper
Kent,
con
complying with
expressed
reiterated
views
an order
entry
(1968)
Neller v.
using language indicative of an intention to
standards.
stitutional
7]; Smith
pro-
[2,
elevate
the status of constitutional
P.2d 949
N.M.
*7
412 S.W.
Ky.App.,
hearing
on waiver
right
tection
to a
(1967)
v. Commonwealth
873,
S.
representation
88
jurisdiction,
right
260,
U.S.
256,
389
cert. den.
2d
right
to a state-
Harris,
at such
and
67
155;
re
162,
L.Ed.2d
19
Ct.
waiving
the court’s reasons
615,
ment of
319,
P.2d
434
876, Cal.Rptr.
64
Cal.2d
jurisdiction.
618.
waiver oc-
all-inclusive
further and
lately
deci
federal
These
decided
case.
applicable
arraignment
curred when at
criminal
sions are not
Jefferson’s
question
opinion
162,
155;
express
873,
on the
no
State
2.
88
19 L.Ed.2d
We
S.Ct.
(1967)
162,
Kent,
Hance,
Md.App.
Gault should
2
A.
Black and
v.
233
whether
note,
2];
[1,
retrospective
how-
We
v. Wilker
2d 326
United States
effect.
jurisdictions
son, (D.D.C.1967)
F.Supp. 596,
ever,
it has
in several
262
cert.
1641,
apply
1045,
con-
new
these
den.
U.S.
88
20
390
S.Ct.
held that
been
(1967)
308;
Harris,
circum-
cepts
similar
L.Ed.2d
67
rules under
In re
and
disrupt
Cal.Rptr.
the or-
64
434 P.
Cal.2d
would tend
stances
upset-
justice by
615;
(1967)
Peyton,
derly
2d
208
Cradle v.
administration
judg-
disturbing
old
ting
Va.
den.
and
156 S.E.2d
cert.
392
cases
settled
Commonwealth,
1407;
v.
88 S.Ct.
Workman
U.S.
ments.
[2];
(D.D.C.1966)
Ky.App.,
(1968)
Mordecai
429 S.W.2d
v. United States
Ky.App.,
Commonwealth,
(1967)
F.Supp.
v.
Smith
U.S.
den. 389
cert.
S.W.2d
SEILER,
result).
Judge (concurring
charge,
competent coun-
with the advice of
sel,
objection
me,
respectfully,
It
seem to
does not
proceedings
propriety of the
regularity and
opinion
ground
on sound
majority
juvenile
court and
voluntari-
instead
the defects
when
holds
waived
State,
v.
ly
Neller
entered
by
fail-
juvenile
proceedings
supra;
Rodriguez
(1967)
Salazar v.
at ar-
lawyers
circuit court
ure of his
Cir.,
principle,
under
there was evidence of a felony. HIGGINS, CC., concur. WELBORN known, As is well Missouri enacted code, new which became effective PER CURIAM. later in deal good 1957. There was a writ- ten that time Missouri around HOUSER, C., foregoing judges old and others about the opinion of the court. adopted as the *8 (under code which was trans- Jefferson ferred) proposed juvenile and the code. new Additional articles have been written from STORCKMAN, J., HENLEY, J.,P. time to time as has to how the new code in concur; SEILER, in result J., concurs working.2 complete been There is a ab- separate opinion filed. Delinquency, it, tion of Wash.U.L.Q. 1958 1. “waived” I understand these defects As 123; Lawyer hearing, Role of in Juvenile were failure to hold a failure Courts, McMullan, 512; notify par- J. of Bar provide counsel, 18 Mo. failure to Representing in guardian, Juvenile Defendant Waiv ents or failure to make Proceedings, Merz, er 12 Louis and, apparently, St. U.L.J. findings, even failure Weinstein, 424; Survey, present Juvenile Court in court. to have the defendant 1957-59, Wash.U.L.Q. 1959 372. Courts, Weinstein, See, Juvenile 1957 2. Rappeport, 17; Determina- Wash.U.L.Q. 14 representation ure about to have and articles
sence in these discussions juvenile was the chance counsel in court juvenile in the being rights there such placed relevant facts before were have old the court holds under the code as juvenile hearing, understandable, be easily waived. This might be juvenile held that end had times cause this court several parens patriae plan persuaded that de respecting guarantees the constitutional range procedure, possibili- with the apply wide in criminal cases did fendants court, open juvenile ties Mata ex rel. juvenile proceedings, case than 359, proper procedure in his rather 254 Mo. (banc) cia v. Buckner 300 for transfer to the criminal court 179; parte (banc) 328 Ex Naccarat S.W. way trial an adult.3 is no undo 176; as There rel. 41 State ex Mo. S.W.2d years damage Trimble, this now. Shartel v. 333 Mo. S.W.2d age juvenile longer court would no fact is until Kent v. 37. The that not only the jurisdiction. have This States, leaves United 86 S.Ct. U.S. Gault, of whether confession 16 L.Ed.2d in re voluntary and the ma- plea were 87 S.Ct. U.S. jority says, record cannot on the we these rights were which the court say findings us court’s waived, the trial firmly holds It were established. clearly regard are There- erroneous. extraordinary degree would have fore, prescience I concur the result reached. counsel in Jefferson’s 1957 to have Kent foreseen the and Gault decisions, say nothing 15-year-old of a grade with a fourth education. any field of
To a-valid waiver be voluntary, intentional must be there right.
relinquishment existing aof known nor
Neither counsel waiver, here
such because defendant’s yet announced involved had Respondent, Missouri, STATE of waiver were not known when this point have supposed to occurred. Pittman, B. L. Jerald HAYES and C. way by asking be can seen another whether Appellants. sucessfully maintain that defendant could No. 53522. file because his failed to motions attacking case the lack of criminal Supreme Missouri, Court of a hearing and counsel in No. 1. Division they incompetent failed because June important questions there- to raise these fore denied assistance he was effective no, for
counsel. The answer would
reason stated that not known law-
yers in Missouri in any grounds complaint in these
respects about the proceed-
ings, either in or in gen-
eral criminal division.
However, way remedy the I see lost his fail-
situation. What Jefferson options open 211.390, many 3. to the court were set forth Sec. RSMo