*1 did not err in overruling the motion for
judgment of acquittal. That is to say,
there was evidence that defendant knew
the officers were police officers and that
she intentionally interfered with their ac
tivity. Thereafter, in instructing the jury,
the court did so in the language of the
ordinance, without any requirement
the jury find that the defendant acted wil-
fully or intentionally. However, omitting
the element of criminal intent in the main
instruction in this misdemeanor case “was a
matter of non-direction, and since the de
fendant failed to request an instruction on subject the omission was not error.” v. Burgess, (Mo.
App.1970); State v. Goodman, 490 S.W.2d (Mo.App.1972); 26.02(6). I there
fore concur in the result reached in the
principal opinion. Missouri, Respondent,
STATE of BAKER, Appellant.
Lawrence
No. 58117. Missouri, Court of
Supreme
En Banc.
June 1975. Rehearing
Motion for Modify or to July
Denied *2 Russell, Duncan, Duncan &
Robert G. Shute, Shull, Kansas Austin F. William E. appellant. City, for Martin, Atty., Jackson Ralph Pros. L. Atty., Frager, Asst. Pros. County by Robert City, Kansas Amicus Curiae.
FINCH, Judge. Appellant, by jury tried on an informa- containing counts, tion charging three two degree murder in the first robbery and one degree, guilty in the first was found on all three counts. He was sentenced to life imprisonment on each murder count and to imprisonment years robbery for on the 546.480,1 Citing count. the sentences to run consecutively.
ordered appeal An was taken to this court. We jurisdiction pursuant retain thereof general April order of this court dated 1973. originally in Divi- was heard appeal
This reversing and opinion where an sion One was remanding for new trial written then was transfer- adopted. The case was en where it red to the court banc opinion written reargued. Portions of herein without One are utilized in Division reverse quotation marks. We the use resentencing. and remand Appellant does not the sufficien- cy jury reasonably evidence. The find therefrom that: On November could 20,1971, Kemp John manager D. was the a Conoco service station at 75th and Pros- pect, City, Kansas County, Jackson Missou- ri; that William G. Simmons was an em- ployee Kemp; p. of Mr. that around 10:00 m., Lawrence Baker and Amos Alonzo Wright pis- entered the station armed with tols; they per- confronted station money sonnel demanded from the cash register; they that after obtained the mon- Danforth, Gen., Atty. John C. Neil they shot and killed ey, both station attend- MacFarlane, Gen., Atty. ants; Asst. Jefferson $105, robbery, taken in the City, respondent. divided between the robbers. unless otherwise statutory V.A.M.S. indicated. are to RSMo references All Appellant, in his motion for new tri (Mo.1969). dispute that the Neither does he original court,
al
in his
brief in this
peremptory challenges
use
State
its
(1)
overruling
asserts that the court erred
Negroes
particu-
from the
remove
his motion to discharge the trial jury and
State,
See,
g., Brown v.
lar case.
e.
State,
declare a mistrial
“in that
Davison, 457
(Mo.1971);
S.W.2d
through
prosecutor,
deliberately and
(Mo.1970).
*3
wilfully used its peremptory challenges to
of discretion
Appellant’s charges of abuse
Negroes
jury panel
strike all
from the
and
upon
quotation
in this case are based
many years
has done so for
in all similar
Alabama,
223-
v.
380 U.S.
from Swain
cases,
jury
denying
thus
the defendant’s
(1965),
13 L.Ed.2d
85 S.Ct.
right
(2)
to a fair
failing
trial” and
to
the
said:
where
Court
hold an evidentiary hearing on said motion.
permissible
“We have
that it is
decided
These contentions arise in these circum-
inquiry
from
the removal
to insulate
stances:
jury
the
Negroes
particular
from a
on
Upon conclusion of the voir
examina-
acting
dire
assumption
prosecutor
that
the
is
prospective
tion of
jurors,
the State and
acceptable considerations
to
related
defense made
peremptory challenges.
their
trying,
particular de-
the case he is
the
The State exercised four of its fifteen
particular
chal-
crime
fendant involved and the
lenges to
Negroes
remove the four
from the
charged.
prosecutor
But when the
in a
panel, and
case,
defendant
then
filed
verified
whatever the
county, in case after
discharge
circumstances,
motion to declare a mistrial and
the crime and
whatever
jury.
allega-
the
may
motion included these
the
the victim
whoever
defendant or
tions:
be,
Ne-
responsible
for the removal of
groes
qualified
who have
as
been selected
State,
“3. The
through
representa-
its
jurors by
the
commissioners and who
tive,
Peak,
peremptory
John T.
used its
cause,
challenges
have survived
challe[n]ges
every
to strike each and
Negro
Negroes ever serve on
the result that no
panel,
excluding Negroes
on the venire
thus
juries,
petit
the Fourteenth Amendment
petit jury.
the
from
significance.
.
claim takes on added
State,
“4. That
the
through John T.
circumstances, given
In these
even the
Peak, by using the peremptory challenges
leeway
operation
of irra-
widest
Negroes
case,
to strike
in case after
what-
suspicions
an-
tional but trial-related
and
be,
ever
the circumstances
particu-
tagonisms,
appear
pur-
it would
that the
larly where the accused
a Negro,
is re-
peremptory challenge
pose of the
are be-
sponsible
Negroes
for the removal of
who
ing perverted.
If the
has not seen
have been
qualified jurors
selected as
by
single Negro
any jury
fit to leave a
Jury
the
Commissioner and who have sur-
case,
presumption protect-
the
a criminal
challenges
vived
for cause.
ing
prosecutor may
well be overcome.
proof might support a reasonable
Such
practice
“5. That
by the State of
Negroes
that
inference
are excluded from
systematically excluding Negroes from a
juries
wholly
unrelated to the
reasons
petit
jury denies
equal protec-
Defendant
particular
case on trial
outcome of
tion of the law
contrary
and is
to the Four-
peremptory system being
and that
teenth Amendment of the Constitution of
deny
Negro
right
the same
used to
the United States.”
in the ad-
opportunity
participate
to
and
Appellant’s
dispute
contentions do not
justice enjoyed by
ministration
qualification
that
of veniremen is a
per-
population. These ends
white
within
matter
the discretion of the
designed
fa-
challenge is not
to
emptory
Wilson,
court. State v.
436 S.W.2d 633
justify.”
cilitate or
allegations of
testify
that the
and that such
Appellant asserts
stand and
take the
true,
motion,
bring
against
if taken as
held
him in
verified
not be
action should
quoted pronouncement;
within the
jury may
case
have considered
de-
his
true,
accepted
the court
testify
arriving
if
not
its
failure to
fendant’s
hearing to
erroneously
him a
make
denied
effect was
An instruction
verdict.”
disagree.
proof. We
but was refused
such
tendered
court.
the trial
adopts
Although
appellant
some
Alabama, supra,
language of
Swain
longA
line Missouri cases have held
motion,
allege
he does not
to frame his
is not
to fail to instruct the
that it
error
prove the kind of discrim-
necessary
facts
to take the
jury on a defendant’s
Swain,
In
condemned
that case.
ination
recent
testify.
of the more
stand
Some
alleged
proved
that no
Sawyer,
the defendant
holding include State v.
cases so
particular
petit jury
had sat on
(Mo.1972);
blacks
State Hutch-
*4
years.
county
period
for a
fourteen
But
(Mo.
1970);
inson, 458
553
banc
S.W.2d
the
enough;
Deiter,
was not
United
(Mo.1969).
this
even
State v.
that
must
Supreme Court held
he
recognizes
States
that this has been so
Appellant
responsibility for
prosecutor’s
show the
should
also
the rule
be
but contends that
result,
counsel
a
since defense
share
citing
support
such
thereof the con-
changed,
in
proc-
in
equal
peremptory
an
role
the
Judge Donnelly
least
in
curring opinion of
us, the defendant
Hutchinson,
In the case before
expressed
ess.
supra,
wherein
not
that
there have been no
allege
did
permis-
that such ah instruction
view
juries
given
petit
any
period
on
blacks
law and that in future
sible under Missouri
time,
allegations might give
to
rise
given
an
should be
if
cases such
instruction
improper
fair inference of
discrimination
a
object
does not
thereto.
defendant
peremptory challenge.
and abuse of
Hutchinson,
Subsequent to the decisionin
Furthermore,
emphasized
the defendant
Septem-
was
26.08
amended effective
Rule
“particular-
that blacks have been excluded
(which
was after
trial of this
ber
where
ly
Negro.”
the accused is a
The
a
case)
provide
to
that if defendant
not
allegation
inference from this
is that
clear
not
testify
requests,
and he so
other-
juries
Negroes are not excluded from
when
wise,
jury
the court shall instruct the
that
Negro.
assump-
is not a
the defendant
law,
right
has the
a defendant
“under
allegation
tion that this
shows violation
guilt
testify.
presumption of
not to
No
misreading of
case.
indicates a
that
Swain
any kind
no inferences of
may be raised and
comport
the defendant must
To
therewith
that the de-
drawn from
fact
may be
exclusion of blacks is made
allege that the
testify.”
not
See also MAI—CR
fendant did
case,
after
whatever the circum-
“in case
Use,
January
effective
and Notes on
3.76
stances,
the crime and whoever
whatever
our
has
1974. The fact that
court
conclud-
be .
or
victim
defendant
in
provide
and to
our
ed
amend our rules
to
no Negroes
ever serve
with the result
volume
pattern criminal instruction
juries
.
380 U.S. at
.
..”
petit
1, 1973,
an
September
such
in-
and after
(Emphasis added.) The
at 837.
85 S.Ct.
by
if
given
requested
shall
struction
be
properly
without
was
overruled
motion
does not mean that refusal
hearing.
time this
was
at the
case
tried
instruction
appellant
or that
Appellant
charges
next
reversible error
failing
to a new trial on that basis. As
erred in
to instruct the
entitled
concurring opinion in
right
Judge Donnelly’s
not to
“that
defendant had
are to V.A.M.R. unless otherwise
to rules
indicated.
citations
All
both,
or
felonies
misdemeanors
are of the
recognized,
instruction
Hutchinson
such an
similar
same or
character or are based on
constitutionally required.
not
the same act or transaction or on two or
Finally,
pro
se brief filed
more
togeth-
acts or transactions connected
One, supplemented
in Division
appellant
be
constituting
er or
parts of a common
fore the court en banc
an additional
plan.”
scheme or
This rule has been de-
appellant,
brief
counsel for
we are re
constituting essentially
scribed as
a restate-
27.20(c) (the plain
quested, under Rule
error
statutory
ment of
and familiar law and as
rule),
proposi
to consider two additional
violating
process
due
of law. L. Or-
First,
appellant
it is contended that
tions.
field, Criminal Procedure Under the Feder-
separate jury trial on each
was entitled to a
al
(1966).
Rules 8:47
When a defendant is
charge
constitutionally
he cannot
and that
charged,
so
counts are tried
multiple charges
single
tried on
court,
together
pursuant
unless
to Rule
Secondly, appellant claims that man
trial.
14 of the Federal Rules of Criminal Proce-
datory imposition of consecutive sentences
dure,
separate
orders
grants
trials or
other
being charged
as a result of
under
546.480
Orfield, supra,
relief.
8:56.
under
in a multi-count
information
deprivation
resulted in a
of his
Likewise, Missouri, joinder
of cer
equal protection of the laws in violation
permitted
tain offenses is
by rule of court.3
of both the federal and state constitutions
addition, statutory provisions,
In
some of
permitted
that the trial
was not
early
which date back as
have
*5
exercise his discretion on whether sentences
permitted joinder of certain offenses in a
be concurrent or consecutive.
should
single indictment
For
or information.
ex
no merit in the
there is
is clear that
It
amples,
545.120,
see §§
545.130 and 560.110.
A defendant
of these contentions.
first
authorized,
When so
it is clear that trial of
con-
or state
not have either a federal
does
separate
single
offenses in a
is
only
one
to be tried
stitutional
Walker,
permissible. State v.
484 S.W.2d
The federal courts have
at a time.
offense
(Mo.1972);
Terry,
1
8(a)
in Rule
of the
recognized this fact
(Mo.1959).4
appellant’s
We overrule
first
That
Rules of Criminal Procedure.
Federal
pro
assignment.
se
or more offenses
that
provides
rule
“[T]wo
charged
or
may
in the same indictment
question
be
A much more difficult
is
each
separate
by appellant’s
count for
pro
second
information
raised
se conten
charged, whether
mandatory
if the offenses
tion
offense
consecutive sentences
14, 1952,
read
April
parts
rule
or transactions
adopted
this
which constitute
of a
As
plan may
charged
common scheme or
be
as follows:
sepa-
the same indictment or information in
Information—Counts—
or
“Indictment
counts,
rate
or in the same count when
Permitted
When
by
Any
authorized
statute.
indictment or
embezzlement, or
larceny and
for
Counts
may
information
contain counts for the dif-
by
property
false
obtaining
larceny and
for
degrees
ferent
any
of the same offense or for
tokens,
burglary and
for
or
or
pretenses
degrees.
of
one
such
burglary,
such
larceny
connection
or
indictment
joined
same
may
in the
ruling
4. While our
on this issue is not based
Any
information
or
indictment
information.
thereon,
appellant
the fact
is that
herein
degrees
for the different
counts
contain
expressed to court and counsel his desire to
any
such
of
one
or for
offense
same
together.
have the three counts tried
Out of
degrees.”
hearing
appellant
of but with
July
Rule 24.04
Effective
present, counsel for
to the
defendant stated
follows:
read as
amended
that he
could ask for a severance but
of Of-
Information—Joinder
or
“Indictment
that his client
together. Appellant
three counts tried
wanted the
fenses
confirmed this
same
on the
based
are
which
All offenses
court.
part of
are
more acts
two or
act or
acts
or more
or on two
transaction
the same
shall
to which he
be ad-
imprisonment
provisions
of
on him
imposed
under
upon prior conviction.”5
judged
deprived
equal protection.
of
546.480
him
unadopted
opinion
The
sustained
divisional
any legislative
Even in
absence of
contention, concluding that Rule
this
24.04
purpose of this
history,
evident that the
it is
for that reason.
is unconstitutional
This
is to insure
some
statutory provision
position
supplemental
taken in
brief
pun-
are to be
multiple
offenders
criminal
before the court en banc
filed
counsel
However,
severely than others.
ished more
appellant. However, an
amicus curiae
apparent that the section does
equally
it is
prosecuting
brief filed
of
attorney
multiple
to all
offend-
apply
convicted
County
position
Jackson
takes
that Rule
if,
if,
only
but
a defendant is
applies
It
ers.
24.04 is not
unconstitutional and that
at least two offenses before he
of
equal protection
problem
denial of
ques-
for either offense.
is sentenced
provisions
caused
arises from
presented whether such classifica-
tion
exists,
problem
says
546.480. Such
ami-
Does it result in irra-
tion is reasonable.
curiae,
cus
even where there is no multi-
of treatment for
inequality
tional
count information or indictment.
con-We
criminal offenders?
clude, for the reasons we subsequently de-
light
this
in the
We consider
equal
tail,
protection
that a denial of
construing
equal
federal
decided cases
problem
exist
arises from
protection clause. In Skinner Oklahoma
rather
Rule
than
24.04.
Williamson, 316
U.S.
ex rel.
procedural
Rule 24.04 is a
It,
rule.
like 1110,
(1942), an
L.Ed. 1655
Oklahoma
8(a) of
the Federal Rules of Criminal
provided
sterilization
habitual
statute
Procedure, merely permits joining
one
exceptions
contained
with ref
criminals but
information or indictment certain related
arising
convictions for offenses
erence to
multiple offenses which otherwise would
violations,
prohibition, revenue
em
out of
charged
been
separately.
have
It does not
political
bezzlement
offenses. The Su
any
mandate
difference in
be-
treatment
*6
found that the
preme
statute resulted
Court
charged
those
jointly
tween
and those
equal protec
of a defendant’s
in a violation
charged
separate
informations or indict-
saying,
541-42,
rights,
tion
U.S.
It
ments.
makes
provision
respect
no
with
S.Ct. at 1113:
punishment
amount of
to
imposed
to
be
“ * * *
of
be
or
Sterilization
or whether sentences shall
concurrent
those who
have thrice
grand
committed
consecutive.
larceny
with immunity for those who are embezz-
546.480,
hand,
deal
Sec.
the other
clear,
lers is
pointed,
a
unmistakable dis-
punishment
imposed
to
be
on convict-
crimination. Oklahoma makes no at-
offenders,
simply procedural
ed
is not
tempt
say
to
that he who commits larce-
provides
It
as follows:
statute.
ny by trespass or trick or fraud has bio-
logically
of
inheritable
shall
any person
“When
traits which he who
offenses,
sentence
commits embezzlement
or more
before
lacks.
two
Oklaho-
ma’s line between
upon
pronounced
larceny
him
have been
fraud
shall
determined,
embezzlement
offense,
imprisonment
to which
as we
either
have
noted, ‘with
upon
reference
be sentenced
the second
to the
shall
time
when
the fraudulent intent
com-
to
subsequent conviction shall
convert the prop-
other
erty to
taker’s
of
own
of the term
use’
at the termination
arises. Riley
mence
provision, we
1835,
and construed this
appeared
to
section first
referred
find no case
certain or
provision.
5. This
in RSMo
to as-
213,
legislative history
which has undertaken
explaining
p.
9. No
statutory
purpose of this
purpose
state the
of
this section
exists and in
very
limited number of cases which have
v.
78 P.2d
State, supra,
[712]
page 715.
64 Okl.Cr.
We have not the
[183]
page
In the other
al
right,
—the
ease the
attendance of his witnesses.
prosecuting
attor-
slightest
inferring
basis
that that line
ney does veto the application; does over-
any significance
eugenics,
has
judicial
court;
nor that
rule the
discretion of the
inheritability of
criminal
traits fol-
does override the
right
constitutional
of
legal
defendant;
lows the neat
distinctions which the
and so the latter is forced
trial,
law has marked between those two of-
into
on whose result his life de-
In
imprison-
fenses.
terms of fines and
pends, with nothing
piece
better than a
larceny
ment the crimes of
paper,
and embezzle-
on which
something
is written
ment rate the same under the Oklahoma
which on its face does not bear even so
Only
code.
when
comes to
probative
sterilization
much
force
hearsay
testimo-
penalties
pains
are the
ny.
law
Thus these
rights
constitutional
are
equal protection
different.
clause
stricken down
blow,
one and the same
indeed be
would
a formula of empty
right
—the constitutional
of the trial
conspicuously
if such
words
artificial lines
judicial
to the exercise of his
dis-
could be drawn.”
cretion in all
coming
him;
cases
before
right
constitutional
reasoning
Similar
is found in State v.
to compulsory process
witnesses;
for his
(1887),
Berkley, 92 Mo.
S.W. 24
where-
and his
right
‘equal
constitutional
court dealt with a statute providing
in the
protection
laws,’ (State
Hayes,
that when
criminal case the adverse
574;)
81 Mo.
affording
apt
thus
an
illus-
party consents that
facts set out in an
tration of
Judge Cooley
what
strongly
so
for continuance due to
application
an ab-
says: ‘The securities of
rights
individual
testimony
sent witness shall be taken as the
* * *
frequently
cannot be too
de-
witness, the trial shall
post-
of such
not be
clared,
words;
nor in too many forms of
This court held that
poned.
when due dili-
possible
guard
is it
nor
to
vigilantly
too
gence
shown,
to obtain such witness was
against
power,
the encroachments of
nor
party’s
statute violated a
constitutional
to watch with
lively
suspicion
too
process
have
compel
to
the attend-
propensity
persons
authority
of defense witnesses. The
ance
court found
through
break
pa-
the cobweb chains of
produced
the statute
equal
denial of
per
2 Story,
constitutions.’
Const.
protection, saying,
the continuance and that defendant “The director contends that the State secures, favor, as a matter of what be- a has created reasonable classification longs to him as a home-born constitution- differentiating civilly insane from the insane,’ treatment for different de- ‘criminally unequal which he as defines and any legitimate on state dangerous propen- those with or not based criminal fendants It mandates different Equal protection or interest. require purpose sities. does not any rea- persons identically, dealt of defendants without that all with treatment basis for that difference. require that or rational it does a distinction sonable punishment by means of purpose made have some relevance to the The increased is not sentences mandatory for which the is made. consecutive classification a simply the basis that City Louis, applicable on Walters v. of St. 347 U.S. made 505, 509, has committed offenses. L.Ed. 660. Clas- defendant a many on offenses persons based how mentally sification of ill either It is how severe committed or dangerously insane insane of course has or is not on whether be a reasonable are. It based pur- they distinction for at were all committed poses question determining type in of of custodial offenses they were com- given, time or whether care to be has no same medical but it solely It is based different times. relevance whatever in at context of the mitted the defendant opportunity person whether only to show whether a is on he before mentally at a 11. of at least two offenses purposes ill For of either them. granting judicial review is of before a of sentenced there is no conceivable guishing who is from all other civil commitments. ill and in need of question [*] nearing the commitment of a [*] whether a the end [*] institutionalization, person [*] of a basis He penal is mentally person distin- term [*] is evident from the classification evening. on the apprehended, Example 1. Defendant morning inequality from In he kills another February the defendant of January of following examples. provided in 546.480 treatment A kills a 1. Before he is person that resulting person is murder first on the capriciousness “The and convicted of tried the classification new trial employed by the a motion for sharply charge. State is He files thrown the court into focus the fact which overruled early March the full benefit March, Meanwhile, judicial hearing defend- danger- April determine charge ous tendencies is murder only in is tried on second withheld ant case con- of civil commitment Since he has been awaiting of one and is convicted. is sen- expiration penal before he person sentence. A of two offenses victed either, applies past criminal presently record is tenced on must be consecutive. hearing imposed entitled to a on the sentences as to dangerously has discretion mentally whether ill no so The trial concur- long prison may be made as he is not in time civil the sentences whether proceedings commitment are instituted. rent. distinction, Given this all semblance of some- kills B also Defendant Example 2. classification,
rationality
purport-
morning
January 1
one on
edly
upon
propensities,
based
criminal
too,
He,
evening.
same
person
second
disappears.”
He files
February and convicted.
tried
*8
early March
trial in
new
for
a motion
504,
See also Humphrey Cady,
405 U.S.
then
and
it promptly
overrules
judge
the
1048,
92
(1972),
S.Ct.
of two
has no
for
offenders
upon
requirement
him
pronounced
been
shall have
relationship
things as seriousness of
to such
Whether the second life
offense.”
either
committed, the factual circum-
the offenses
consecutive
is made concurrent or
sentence
offenses,
surrohnding
stances
whether
judge.
trial
discretion of the
is within
were
the offenses
committed at
same
things
into account such
as
can take
He
previous
or the
or at different times
time
prior
has a
record and
defendant
whether
defendant,
depend-
record of
and is
surrounding criminal
circumstances
facts and
chronological happen-
solely
ent
on the
offenses,
Example
1 the trial
whereas
two convic-
of whether there were
though
even
stance
such discretion
has no
sentencing on either offense.
tions before
and con-
therein was tried
defendant
Paraphrasing what the court said in Bax-
of identical
comparable dates
on
victed
strom,
capri-
supra, we conclude that
charges.
of the
established
ciousness
classification
examples showing
hypothetical
Similar
sharply
into
546.480 is thrown
focus
§
546.-
of treatment
reason
disparity
judicial
of the
the benefit
the fact
infinitum. For in-
given ad
could be
480
light
judge in the
of the trial
discretion
stance,
gave
who
two
first offender
to determine
all facts
circumstances
which he
no account
banks in
had
checks on
should be
multiple sentences
con-
whether
if, for
receive consecutive
would
sentences
only
is withheld
current or consecutive
another, he was convicted on
reason
one
happens that a
wherein it so
those cases
either,
being sentenced on
before
both
charges
two
defendant
is convicted
Example
B in
2 would
whereas
immaterial)
(whether by plea or trial
or concurrent sentences
consecutive
receive
person
A
he is sentenced on either.
before
judge,
even
discretion
at the
o^
presently
past criminal record
with a
prior
have numerous
sen-
though might
judge’s
dis-
to the exercise of
entitled
the first offender
In this instance
tences.
on two
long as he is not convicted
cretion so
much less serious offenses
commits
who
on ei-
before he is sentenced
new offenses
where-
given consecutive sentences
must
However,
enti-
a first offender
not
ther.
apply
to the habitual
does
statute
as the
that discretion if his two convictions
tled to
murders,
two
sim-
who committed
offender
sentencing on either. Given
before
occur
relationship
of the
between
ply because
distinction,
rationality
all semblance of
this
resulting
sentences.
convictions
time
classification,
supposedly based
of the
Equal protection
require
does not
propensities,
criminal
multiple crimes and
persons
that all
identically.
be dealt with
disappears.
example,
For
burglar may
one
be sentenced
years imprisonment
to four
and another
noted,
inequality of
previously
As
this
may be sentenced
years
to two
or five
546.480, not Rule
treatment flows from §
years. The factual
justify
situations can
Examples
previously given
1 and 2
24.04.
this
imposed.
difference in sentences
How
problem exists even
illustrate that
ever, equal protection
require
that dis
To
not utilized.
declare
where Rule 24.04is
tinctions in
purpose
classifications for the
not cause
would
Rule 24.04 unconstitutional
sentencing
have some relevance to the
go
546.480 to
problem inherent
purpose case,
one,
which the classification is made.
not this
if
away.
In some other
Doud,
Morey v.
77
U.S.
the constitu-
we would have to determine
G.,
(1957);
hand,
131 trial to sentencing resulting That tencing from 24.04. with directions true, to concurrent or being we hold 546.480 to be uncon- its discretion as exercise obtain in this sentences —would stitutional. consecutive amended Rule 24.04 did not even if case requires The conclusion that we we reach separate for multiple-count trial authorize portion (but only overrule that portion) offenses. Swenson, King (Mo. of 423 699 1968), case, opinion wherein we A divisional in this which banc ruled that 546.480 adopted, not violative of the federal and state held there had been no was not provisions prohibiting knowing constitutional waiver entered defendant be- laws that, deny equal protection did not know which of the law. cause the defendant counts, trial on to proceeding Declaring 546.480 unconstitutional subjected to mandatory would be consecu- appellant not entitle to a new trial. if he was convicted tive sentences of more statutory provision The affected principal The opinion than one offense. sentencing appellant, of his only the section 546.480 holdá unconstitutional and Rice, Carolina v. North 404 trial. See U.S. resentencing case for with di- remands (1971); 92 S.Ct. L.Ed.2d 413 judge the trial to rections to exercise his Pearce, North Carolina U.S. respect to with concurrent or con- discretion (1969). L.Ed.2d Accord The request terms. defendant did secutive ingly, judgment trial court on all that he be tried offenses in one trial. and the case is reversed remanded for re- Therefore, any ignorance on the part of sentencing wherein the trial ex shall respect to mandatory con- judicial ercise his discretion with reference sentences is rendered secutive harmless be- imposed to whether sentences on the vari cause he will now be entitled to have the are ous counts to be concurrent or consecu its court exercise discretion as to how tive. will be served. the terms Therefore, my opinion, the issues nec- DONNELLY, J., C. and MORGAN essary disposition of this case do not HOLMAN, JJ., concur. question of validity include the BARDGETT, J., separate concurs in con- and, Rule 24.04 amended consequently, opinion curring filed. concerning validity what is said of that is, my opinion, dictum. rule SEILER, J., separate concurs in concur- validity vel The non of amended Rule ring opinion BARDGETT, J. ought to await a case in which that HENLEY, J., separate concurs in concur- necessary to the decision. issue Never- ring opinion filed. theless, inferentially may since appear amended Rule 24.04 is held valid in this BARDGETT, Judge (concurring). case, the following I believe observations except I concur in the principal opinion pertinent, also dicta are alheit. concerning what is said therein va- agree that neither the I Federal nor state lidity of amended Rule 24.04. prohibit a person constitutions from being convicted for tried and several principal opinion 546.- offenses in* holds section By same trial. that I 480 to be mean there unconstitutional for reasons whol- is .un- prohibition against constitutional ly apart from the fact that amended Rule government facially branch power 24.04 exists and authorizes has the multi- (not change substantive ple-count separate trials offenses. constitutional) Thus, rights authorizing multiple-count from principal the result reached tri- opinion and convictions. That and remand als for resen- branch —reversal *10 5, V, under Art. power § Mo.Const.1945.
government legislative branch. is, my in opinion, not fore- That a person Whether can be convicted in by closed court’s decision in this ease. is, one trial of more than one offense in my opinion, a matter of substantive law and changed can be only by legislative action HENLEY, Judge (concurring). and not court can, rule. A defendant I concur and add word of caution to the however, right waive that as was done in regarding the trial bench record that should
the instant case
as
and
was
done
sentencing.
made at the time of
State v. Terry,
earlier rule was merely rescript
sections 545.120 and 560.110 RSMo
V.A.M.S., which statutory constituted au-
thority charges for such and trial. principal opinion makes reference to CUMBY, Appellant, Jess V. 8(a) of the Federal Rules of Criminal Procedure which rule authorizes multiple-
count trials and However, convictions. INDUSTRIES, FARMLAND Federal rule adopted pursuant to Title INC., Respondent. 18 U.S.C. requires that rules KCD No. 26772. respect proceedings prior to and including verdict be reported Congress Missouri Court of Appeals, or after the beginning regular of a session City Kansas District. thereof but not later than the 1st May, June the rule shall not be effective until days reported. Thus, after it is so Fed- eral Rules of Criminal Procedure adopted
pursuant to Title 18 U.S.C. will have congressional approval
received before they
become effective. have set
I forth the foregoing in order my concurrence in the principal opin- will not be
ion understood to inferentially agreement
constitute that amended Rule
24.04 is valid exercise of rule-making