Jewell v. StateJewell v. State
- Reporters:
- ,
- Before:
- Somerville
This is an appeal by Michael Ray Jewell from a denial without evidentiary hearing of his Rule 27.26, V.A.M.R., motion to vacate a judgment of conviction and sentence of twenty-five years entered responsive to a jury verdict finding him guilty of murder in the second degree. Jewell’s conviction was previously affirmed on direct appeal in State v. Jewell, 473 S.W.2d 734 (Mo.1971), wherein the court noted, “[t]he trial posture of this case was delineated by verdict-directing instructions on murder, first degree, felony-murder, first degree, murder, second degree, manslaughter, innocence, and by a converse instruction on defendant’s theory of the case under which defendant could not be found guilty of any crime unless the jury first found that he participated in burglary of the rooms occupied by the murder victim.”
By his Rule 27.26 motion, and by his appeal from the order of the trial court overruling same, Jewell collaterally attacks the judgment of conviction on the ground that the trial court erred in failing to instruct the jury on “felony murder, second degree”, even though he made no request for such an instruction, in view of the positive mandate of
The trial judge who overruled Jewell’s Rule 27.26 motion, without an eviden-tiary hearing, also presided at the jury trial which resulted in Jewell’s conviction of murder in the second degree. Capsulat-ed, the judgment entered by the trial court overruling Jewell’s 27.26 motion can fairly be described as tantamount to a finding of fact and conclusion of law that Jewell’s motion and all other files and records in the case conclusively demonstrated, as a matter of law, that at the trial on the merits Jewell was not entitled to an instruction on felony-murder, second degree, under the common law felony-murder rule, because the record in its entirety failed to disclose that the homicide occurred during the commission of a felony other than one specifically enumerated in
It is well settled that claimed errors relative to instructions are generally *808considered “mere trial errors and are not proper grounds for collaterally attacking convictions and sentences by Rule 27.26 motions, State v. Smith, 411 S.W.2d 208 (Mo.1967), unless they rendered the trial unfair and thereby rose “to the dignity of a denial of due process”, Thomas v. State, 485 S.W.2d 413 (Mo.1972).
It is unnecessary to rule presently whether failure to instruct on felony-murder, second degree, under the common law felony-murder rule constituted “mere trial error” or rose “to the dignity of a denial of due process” for a very basic and fundamental reason. Substantial evidence was introduced by the state at the trial on the merits from which a jury could have reasonably found that the homicide for which Jewell stood convicted occurred during the companion commission of a burglary [State v. Jewell, supra, 473 S.W.2d l. c. 739], one of the five specifically enumerated felonies in
The “findings, conclusions and judgment of the trial court” were not clearly erroneous, and, accordingly, the judgment is affirmed.
All concur.