199 S.W.2d 913 | Mo. | 1947
Lead Opinion
Chester Skiba, Jack Stroemple and Frank Earnest were sentenced to thirty years' imprisonment for the armed robbery of the Peoples Bank of Hawk Point on August 11, 1943. Upon this appeal Skiba and Stroemple contend that they had theretofore been tried for the same offense, that the present trial and conviction again put them in jeopardy for the same offense; consequently they are entitled to be discharged. Const. [914] U.S., Amend. V; Const. Mo., Art. I, Sec. 19; Mo. R.S.A., Secs. 4846, 4847, 4848. They further contend, if not entitled to be discharged, that they are entitled to a new trial because the court erred, first, in failing to submit the question of their double jeopardy to the jury and, second, in *1149 instructing the jury upon the subject of their voluntary statements.
The appellants' claim of being twice placed in jeopardy for the same offense is based upon these circumstances: In the beginning the defendants were proceeded against by separate informations filed on the 14th day of August 1943. Each of the defendants entered pleas of guilty to the informations and each was sentenced to thirty-five years' imprisonment. While they were serving their sentences in the Missouri penitentiary the appellants filed petitions for habeas corpus in the Supreme Court of Missouri and in May 1945 the court sustained their petitions upon the ground that they had not been represented by counsel at the time the pleas of guilty were entered. (Williams v. Kaiser,
[1] They say that the mandates in the habeas corpus proceedings remanded them to the custody of the sheriff "for a limited purpose only," that after the mandates were returned the cases were upon the trial court's docket with their previous pleas of guilty to the informations and that the trial court was powerless to do otherwise than resentence them. They urge that a plea of guilty has the same force and effect as a verdict of conviction or acquittal and, having once entered their pleas of guilty, they were then in jeopardy. But the defect in their trials upon their pleas of guilty to the informations and for which they were remanded to Lincoln County "for further proceedings" was not an error in the sentence or judgment as to the proper place or correct time of confinement invalidating the proceedings only in so far as they affected the sentences, as was the case in LaGore v. Ramsey (Mo.), 126 S.W.2d 1153. Here the defect complained of in the habeas corpus proceedings, failure of the court to appoint counsel, inhered in and invalidated the entire proceedings, they were set aside as void including the pleas of guilty and so, when they were remanded "for further proceedings" their cases, including the pleas of guilty, were upon the trial court's docket as though there had never been a judgment and as though they had never been tried. *1150
Ex parte Thompson v. Sanders,
[2] This may in effect dispose of the appellants' claim of double jeopardy. But if it does not there can be little doubt that their plea is untenable in the circumstances of this case. As we have indicated, their pleas of guilty were set aside as void. And our constitutional provision, upon [915] which they rely, says "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 ifjudgment be arrested after a verdict of guilty on a defectiveindictment or information, or if judgment on a verdict of guiltybe reversed for error in law, the prisoner may be tried anew on a proper indictment or information, or according to the law."
Const. Mo., Art. I, Sec. 19. And so it is with the statutes, when the defendant has been acquitted or convicted "but the judgment shall for any cause be arrested, he may be tried and convicted on a subsequent indictment for the same offense, . . ." Mo. R.S.A., Secs. 4846-4848. In these circumstances, the appellants' prior convictions upon their pleas of guilty to the informations having been set aside as void, they could not validly support the pleas in bar that they had theretofore been placed in jeopardy for the same offense. Bayless v. U.S.,
[3] There was no dispute as to the facts upon which the pleas of former jeopardy were based. The prosecuting attorney admitted the identity of the appellants and the crimes charged in the informations and in the indictment, (Compare: State v. Huffman,
[4] The state contends that the assignment that the court erred in giving the three instructions upon the subject of any voluntary statements the defendants may have made is not reviewable upon this appeal because the appellants did not object and except to the giving of the instructions. The record reveals that the appellants objected and excepted to the court's refusal of their proffered instructions, to the reception of the verdict and the entering of judgment upon it and to the overruling of their motion for a new trial, (Cf: State v. Wolzenski,
The code of criminal procedure provides that "On the trial of any indictment or prosecution for a criminal offense, exceptions to any decisions of the court may be made in the same cases and manner provided by law in all civil cases; and bills of exceptions shall be settled, signed, sealed and filed as now allowed by law in civil actions, . . ." Mo. R.S.A., Sec. 4084. The apposite section of the civil code with reference to the saving of exceptions says that "either party shall except to the opinion of the court, and shall write his exception and pray the court to allow and sign the same, . . ." Mo. R.S.A., Sec. 1174. But Section 1174 was specifically repealed by Section 1 of the new civil code of procedure (Laws Mo. 1943, p. 353) and the preliminary question is whether that statute is nevertheless of force so far as criminal procedure is concerned. Section 4084 of the code of criminal procedure has been in effect, virtually unchanged since 1835 (R.S. 1835, p. 491; R.S. 1879, Sec. 1921) and its context as well as the facts plainly indicate that its provisions are continuing in [916] nature; that is, exceptions in criminal cases are to be allowed "as now allowed by law in civil actions." The apposite section of the civil code was in force when the criminal code was enacted, with some modifications before and since. See and compare: 1 Terr. Laws 1807, p. 117; R.S. 1825, p. 631, Sec. 39; Laws Mo. 1849, p. 93; Laws Mo. 1889, pp. 164, 189, Sec. 3635. As we have said, the new code of civil procedure specifically repealed Section 1174 but plainly it was not intended that the new civil code should in any way apply to criminal procedure except as its provisions "are now or hereafter may be made applicable by statute." Code of Civil Procedure, *1152
Sec. 145. Section 145 further provides "If it occur thatinadvertantly this act may affect any change in the practice and procedure in criminal cases as the same exists at the timeof the passage of this act, the Supreme Court shall and is hereby directed to immediately promulgate a rule restoring such a provision or provisions of said criminal practice and procedureto the end that the present practice and procedure in criminalcases shall not be changed except by a legislative act passed forthat specific purpose." The court has not promulgated the rule called for by this section of the code and there has been no legislative action on the subject, nevertheless the provisions of repealed Section 1174 continue as the guide and rule for exceptions in criminal cases and until changed by legislative enactment must be complied with. Gaston v. Lamkin,
"When a reference statute specifically designates the section or article of the statute of which it is made a part, such reference statute will not be changed or modified by any subsequent change in the statute to which it refers. It has even been held that the provisions of a repealed law may be referred to and thus become a part of a new statute . . . But where the reference statute pertains only to a method of procedure and refers generally to some statute which defines how certain things may be done, such reference statute will be expanded, modified or changed every time the statute referred to is changed by the Legislature."
In this prosecution for robbery the subject of the appellants' voluntary statements was a collateral matter (State v. Simenson,
The judgment is affirmed. Westhues and Bohling, CC., concur.
Addendum
The foregoing opinion by BARRETT, C., is adopted as the opinion of the court. All the judges concur.