State ex rel. Thomas v. Crouch

603 S.W.2d 532, 1980 Mo. LEXIS 420

• Court: Supreme Court of Missouri
• Decided: July 15, 1980
• Docket: No. 61932
• Status: Published

Opinions

ROBERT R. WELBORN, Special Judge.

Original proceeding in prohibition.

On July 17, 1979, the Prosecuting Attorney of Douglas County filed the following complaint in the Douglas County Circuit Court against Howard Lee Thomas and Herbert Leslie Bunch:

“The Prosecuting Attorney of the County of Douglas, State of Missouri, charges that the defendants, in violation of Section 565.001, RSMo, committed the class A felony of capital murder, punishable upon conviction under Section 565.-008.1, RSMo, in that the defendants willfully, knowingly, with premeditation, deliberately and unlawfully killed Charles M. Polatty by shooting him on or about July 17, 1979, thereby causing him to die on or about July 17,1979 in the County of Douglas, State of Missouri.”

On November 7,1979, a preliminary hearing was accorded Thomas before an associate circuit judge. At the conclusion of the hearing, the associate judge announced his conclusions, as follows:

“Of course, in a preliminary examination before an Associate Judge, it is not the place of the Court to decide the truthfulness or untruthfulness of the evidence. The evidence must be viewed in the strongest possible light in favor of the State of Missouri.

“For this reason and from the evidence the state has presented, the Court has no trouble in finding that there is probable cause to believe that the defendant shot the deceased, Mr. Polatty.

“However, the Court doesn’t view this as does Mr. House. This was a continuing series of events that happened all the way from Springfield down to this final stop in Douglas County, and the Court does not believe that there is any evidence to show deliberation, possibly no evidence to show premeditation on the part of the defendant.

“The legal definition of premeditation as the Court understands it is thought of beforehand for some period of time, however slight. Well, as Mr. House says, this could be just a second, but it does require thought and deliberation is another thing. It is defined by the courts as being done in a cool state of blood.

“The Court feels that the evidence on the part of the state has shown not a cool state of the blood but the fact that everybody’s blood was running hot all the way down from the time they first began to have these quarrels and fights.

“The Court can’t agree that because they had had a fight earlier in the evening, that there’s probable cause to believe that at that time the defendant started planning the death of the deceased. There are many things about this case that are unanswered and of course it is not my province to speculate on them or go into them, but the Court finds that the elements of premeditation and deliberation do not exist and therefore it is not capital murder.

“Of course, the definition for first degree murder does not enter into this because there is no evidence whatever that this was committed in an arson or a rape or robbery or a burglary, so first degree murder is not possible under the evidence in this case.'

“However, the statute does say that all other forms of homicide not specifically declared to be murder in the first degree or capital murder or manslaughter are second degree murder, and the Court finds that there is probable cause to believe that the defendant is guilty of having committed the crime of second degree murder in Douglas County, and that he should be held for arraignment and action of the Circuit Court, Division One, to appear there on their next law day on the first Tuesday in December, December 4th, at 10:00 o’clock, a. m.

“He is to be allowed bond in the sum of $50,000.”

On November 14, 1979, the prosecuting attorney filed an information in the Douglas County Circuit Court, charging Thomas with capital murder. A motion to quash the information was overruled. The defendant sought a writ of prohibition in this Court and the preliminary writ issued.

Relator charges that the circuit court is acting in excess of its jurisdiction in attempting to arraign and try relator on a charge of capital murder because the finding at the preliminary hearing that capital murder had not been committed was binding upon the prosecuting attorney and therefore the information charging that offense is void.

Rules of this Court in effect at the time of the preliminary hearing included the following:

Rule 23.02. “No information charging the commission of a felony shall be filed against any person unless the accused shall first have been accorded the right of a preliminary examination before a magistrate in the county where the offense is alleged to have been committed. The accused may waive a preliminary examination after consultation, or after being accorded the right of consultation, with his counsel. A record entry of such waiver shall be made and the magistrate shall hold the accused to answer in the court having jurisdiction of the offense of which he stands accused. If the offense is bailable and the accused has not previously been admitted to bail, he shall be admitted to bail as provided in these Rules. No preliminary examination shall be required where an information has been substituted for an indictment.”

Rule 23.08. “If upon examination of the whole matter the magistrate shall determine that no felony has been committed by any person, or that there is no probable cause for charging the accused therewith, he shall discharge such accused. If it appear that a felony has been committed and that there is probable cause to believe the accused guilty, the magistrate shall hold the accused to answer in the court having jurisdiction of the offense. In such case the magistrate may bind any or all material witnesses by bail bonds, to appear and testify before the court having jurisdiction of the offense, on such day as the prosecuting attorney shall designate in writing filed with the magistrate at the time, and not to depart such court without leave.”

Rule 23.10. “If the offense for which the accused is bound over is bailable and the accused has not previously been admitted to bail, he shall be admitted to bail upon a bond with sufficient security as provided in these Rules. Otherwise, he shall be committed to the county jail of the county, or other safe place, to be held until discharged by due course of law. When an accused has been committed to jail because of his failure to furnish bail, the magistrate shall endorse on the warrant of commitment the amount of bail required.”

These rules followed generally the statutory provisions relating to preliminary hearings, found in §§ 544.250, 544.410, 544.420 and 544.470, RSMo 1969.

Respondent contends that, under the rules, the associate circuit judge had jurisdiction to determine only whether a felony had been committed and to bind the defendant over to the circuit court upon a finding to that effect and that the specification by the associate circuit judge of the charge on which the defendant was to be bound over was in excess of the associate circuit judge’s jurisdiction.

Respondent’s reliance is primarily upon State v. Ancell, 333 Mo. 26, 62 S.W.2d 443 (1933). In Ancell, the defendant was charged by information with murder in the first degree. A trial resulted in a verdict of guilty of manslaughter. On appeal the defendant asserted error on the part of the trial court in overruling his plea in abatement based upon attacks against the validity of his preliminary hearing. One of the grounds was that the examining magistrate who conducted the preliminary hearing on a charge of murder in the first degree found probable cause only for the defendant to be held to answer the charge of murder in the second degree. In rejecting this claim of error, the court stated (62 S.W.2d 446):

“(a) Appellant’s contention that the prosecution should have been abated because he had not been held by the examining magistrate to answer the charge of murder in the first degree contained in the information subsequently filed cannot be sustained. In State ex rel. McCutchan v. Cooley, 321 Mo. 786, 12 S.W.(2d) 466, 468, referred to by defendant in his motion for new trial, it was held by this court in banc that the prosecuting attorney was without authority to file an information for felony until there had been a finding by a magistrate on preliminary examination ‘that a felony has been committed and that there is probable cause to believe the prisoner guilty thereof,’ quoting the language of the statute, now section 3483, R.S.1929 (Mo.St.Ann. § 3483). In that case the defendant had been accorded a preliminary and had been discharged by the magistrate. In the instant case he was not discharged. True, he was not held to answer a charge of murder in the first degree. But the magistrate found that a ‘crime’ had been committed and from the transcript of his proceedings as a whole it clearly appears the crime meant was murder, a felony, and that there was probable cause to believe defendant guilty thereof. That finding meets the requirement of the statute. ‘The examining magistrate is not expected or empowered to determine the guilt or innocence of the accused, or to nicely or irrevocably determine the precise offense of which he is guilty.’ State v. Flannery, 263 Mo. 579, 592, 173 S.W. 1053, 1057. The separate opinion of Faris and Brown, JJ., in the Flannery Case, in which the above-quoted language occurs, was criticized on another point in State v. Nichols (Mo.Sup.) 49 S.W.(2d) 14, but we do not understand it to have been questioned on this point. The reasoning of the principal opinion in that case, by Walker, J., leads to the same conclusion. See, also, State v. Bauer et al., 321 Mo. 603, 12 S.W.2d 57; State v. Jeffries, 210 Mo. 302, 320, 321, 109 S.W. 614, 14 Ann. Cas. 524. The complaint filed with the justice in this case charged murder in the first degree, which charge included the lower degrees of felonious homicide, to wit, murder in the second degree and manslaughter. The justice found that the felonious act charged, in other words a felony charged in the complaint, had been committed. It was not incumbent upon him to determine the precise degree of the crime found to have been committed nor, in our opinion, could his attempted determination thereof preclude the prosecuting attorney from filing an information charging the higher degree.”

Relator advances numerous reasons for the rejection of the holding in Ancell He first argues that Ancell is distinguishable for the reason that there is no indication that the justice of the peace who conducted the preliminary hearing in that case made express findings on the elements of the first degree murder charge which he found to be lacking. Relator points to the specific findings of the associate circuit judge in this case particularly noting the elements of capital murder which he found lacking.

That is not a valid distinction. The problem is the authority of the associate circuit judge to make the finding he made. He cannot expand his authority by being more specific in his findings.

Relator also notes that Ancell was a review of the conviction of the defendant for manslaughter upon a trial and contends that the real basis for the holding in Ancell was that any error resulting in the use of the disputed information was harmless to the defendant inasmuch as he could have been convicted for manslaughter had the information charged second degree murder, the offense for which the justice purported to bind him over to answer.

This may be a proper limitation of the actual holding of Ancell. Obviously that case could have been decided on that ground alone. However, the validity of the court’s reasoning with respect to the question here presented may give such reasoning persuasive effect in this case.

Relator’s attack upon the reasoning of Ancell is premised largely upon the enhanced status of the associate circuit judge who conducted the preliminary hearing in this case over that of the justice of the peace who presided in Ancell’s preliminary hearing. Unquestionably the status of the associate circuit judge over that of the magistrate judge whom he succeeded has been raised, just as the status of the magistrate over that of the justice of the peace was elevated. However, an associate circuit judge’s jurisdiction is “as now provided by law for magistrate or probate judges” (Mo.Const. art. V, § 18, as amended). Magistrate judges possessed “ * * * only those powers which are expressly granted by statute. * * * No presumptions or inferences will be invoked to enlarge their jurisdiction and they cannot assume or take powers by implication.” State ex rel. Inland Finance Corporation v. Felder, 370 S.W.2d 696, 697[1-3] (Mo.App.1963). The power of an associate circuit judge, under the above constitutional provision, is similarly limited.

Although the improvement in the status of associate circuit judges would obviously provide a valid argument for an extension of the responsibility of that position, the fact remains that present statutes dealing with preliminary hearings remain substantially unchanged from those in existence at the time of the Ancell decision. Section 544.420, RSMo 1978, is identical with Section 3483, RSMo 1929, in effect at the time of Ancell. In the first Rules of Criminal Procedure adopted by this Court, Rule 23.08 repeated the language of Section 544.420: “If it appear that a felony has been committed, * * Such was the language of the applicable Rule at the time of the preliminary hearing in this case.

A new Rule 22.07, adopted by this Court June 13, 1979, effective January 1, 1980, relating to preliminary examination, included the following in sub-paragraph (c): “If from the evidence it appears to the judge that there is probable cause to believe that the felony complained of has been committed and that the defendant has committed it, the judge shall order him to appear in the court having jurisdiction of the offense; * * *.” 580-581 S.W.2d (Mo.Cases) XXXIII (1979). However, before this rule became effective, it was “ * * * modified to conform to the legislation implementing the new judicial article * * * [to] read as follows (in part):

“If from the evidence it appears to the judge that a felony has been committed and that the defendant has committed it, the judge shall order him to appear in the court having jurisdiction of the offense; * *.” 588-589 S.W.2d (Mo.Cases) XXXV (1979).

Thus as the statutes and rules stood in effect at the time of the preliminary hearing in this case, the authority of the associate circuit judge was to bind the relator over if the judge believed that the defendant had committed a felony. As in Ancell, the associate circuit judge was not given authority to determine, for purpose of binding a defendant to the circuit court, the degree of the offense. This Court’s handling of Rule 22.07(c) confirms that such is the authority of the court upon a preliminary hearing.

In this case, the associate circuit judge did find that a felony had been committed and that there was reasonable cause to believe the defendant guilty. However, the court went further and attempted to define the degree of the offense to which the defendant would be required to respond in the circuit court. Having no authority to make such a finding, the finding in that regard was void and the prosecuting attorney was entitled to disregard such limitation upon his discretion in selecting the charge, within the complaint, which he would file. The reasoning of Ancell remains valid and is dispositive of relator’s complaint.

Relator complains that, if he is to be arraigned on a charge of capital murder, he will be deprived of his right to release on bail in violation of Mo.Const. art. I, § 20, because capital murder is a non-bailable offense. Respondent’s return shows that, over the objection of the prosecuting attorney, the respondent continued the $50,000 bond fixed by the associate circuit judge, and that relator is free under such bond. This complaint of relator gives rise to no lack of jurisdiction of respondent to proceed with the cause on the information filed.

Relator further complains that, although he is now free on bail, he will, if the capital murder charge is permitted to stand, be denied bail and thereby be deprived of his liberty without the benefit of a judicial determination of probable cause for the termination of his liberty, in violation of state and federal due process requirements. This speculative argument does not go to the trial court’s jurisdiction. The filing of an information charging a capital offense does not preclude release on bail. Mo.Const. art. I, § 20. Hickman v. O’Connell, 266 S.W.2d 9 (Mo.App.1954).

Relator asserts that, if he is required to stand trial on the capital murder information, he will be held to answer for an offense involving a mandatory minimum prison sentence, at the sole discretion of the prosecutor, without the benefit of a judicial determination of probable cause for such charge. He asserts that requiring him to fáce that charge in such circumstances deprives him of equal protection of the laws, in violation of state and federal constitutional guaranties “ * * * in that relator is being denied the right to have his sentencing decision made by a judge and jury, a right accorded to all other criminal defendants undér Missouri law.”

Relator’s contention that the prosecutor has made a “sentencing decision” is without merit. He has merely selected the offense to be charged. Any sentencing decision will be by a judge and jury. Regarding prosecutorial discretion in selecting the offense to be charged, relator relies upon a dissenting opinion in Berra v. United States, 351 U.S. 131, 135, 76 S.Ct. 685, 688, 100 L.Ed. 1013 (1956), and an opinion concurring in part and dissenting in part in Hutcherson v. United States, 345 F.2d 964, 972-977 (D.C.Cir.1965). The pronouncements relied upon were not accepted in those cases and the recent case of Batchelder v. United States, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979), disposes of any equal protection claim based upon prosecu-torial discretion as to the offense to be charged.

Relator’s double jeopardy complaint is without merit. “ * * * [T]he preliminary hearing does not place the accused once in jeopardy, * * State v. Thomas, 529 S.W.2d 379, 382[3-5] (Mo.1975).

Writ quashed.

RENDLEN, WELLIVER and HIGGINS, JJ., and STOCKARD, Special Judge, concur. BARDGETT, C. J., dissents in separate dissenting opinion filed. SEILER, J., dissents and concurs in separate dissenting opinion of BARDGETT, C. J. DONNELLY and MORGAN, JJ., not sitting.