State v. Maxwell

400 S.W.2d 156, 1966 Mo. LEXIS 791
CourtSupreme Court of Missouri
DecidedMarch 14, 1966
DocketNo. 51276
StatusPublished
Cited by6 cases

This text of 400 S.W.2d 156 (State v. Maxwell) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Maxwell, 400 S.W.2d 156, 1966 Mo. LEXIS 791 (Mo. 1966).

Opinion

FINCH, Judge.

Defendant was charged with robbery, first degree, by means of a dangerous and deadly weapon and with two prior felony convictions. He was found guilty by the jury and the trial court determined he had two prior felony convictions. Punishment was fixed at eight years’ imprisonment. This is an appeal from that judgment.

The evidence of the state supports the following statement of facts: On July 30, [157]*1571964, Whitney Moses and John W. Rouse shared an apartment at 5533 Cates, in St. Louis. On July 30, Moses returned to the apartment from work and went to the basement of the building to wash some clothes. As he came up the stairs from the basement he heard someone walking in the kitchen of the apartment. He thought it was Rouse and called out but received no answer. No one was in the kitchen but when he went into the dining room he was stopped by a man (later identified as defendant) with a knife, who said, “Do not holler.” Moses was pushed into his bedroom, where his hands and feet were tied. After that defendant moved around the apartment, pulling out dresser drawers and taking things off of the table, during which time Moses observed him. He then heard the defendant using a telephone in the hallway and heard him say “Marcella” and “East.” After hearing the door close. Moses worked his hands loose, released himself, looked around the apartment, called the police and described to them the intruder, what had been taken and what had happened.

A patrolman came to the apartment and took Moses to police headquarters where he picked the defendant out of the police lineup as the intruder. Moses stated he had never seen the defendant previous to the time when he was confronted by him with a knife in the apartment. He identified the knife with which he had been threatened and identified two cigarette lighters, a man’s watch, two umbrellas, four sweaters, a Magnovox portable TV, a fan, and a radio as property belonging either to John Rouse or himself and which had been taken from the apartment by the defendant.

A cab driver for Marcella Cab Company testified that at about 7:15 p. m., on July 30, he received a call from his dispatcher directing him to the 5500 block of Cates. There he picked up defendant, who had with him a portable TV, a fan, two umbrellas, and a pillow case containing some articles, all of which were placed in the trunk of the cab. The driver testified that defendant was in the cab from that time until it was stopped by the police and the defendant arrested.

Police officers told of receiving a radio report of the robbery in which a description of the suspect was given. The report stated that the suspect last was seen traveling south on Clara in a Marcella cab. The police shortly observed a Marcella cab containing a single passenger which they stopped. The occupant, who was the defendant, appeared to fit the description and officers placed him under arrest. He was searched and in his pants pocket was found a kitchen knife, two cigarette lighters, and a man’s watch. The police then searched the trunk of the cab and found the TV, the radio, the fan, the two umbrellas, and a pillow case which contained items including four men’s sweaters.

The defendant testified in his own behalf. His explanation was that he had met Whitney Moses about two weeks before; that he had spent a couple of hours at the apartment with Whitney Moses each afternoon thereafter except Saturdays and Sundays ; that Whitney Moses was a homosexual and had given defendant the various items of property found in his possession for the purpose of setting up a separate apartment where he and defendant would live. He had assumed the property belonged to Moses and did not know any of it was the property of Rouse. He testified that he had given this information to the police when arrested. On rebuttal, the patrolman testified that defendant had stated that he had been living with Whitney Moses at 5533 Cates for several months, that they had a misunderstanding and that he was leaving the apartment, taking with him these items which were his own property.

Defendant had a preliminary hearing in the St. Louis Court of Criminal Correction at which he was represented by Joseph Noskay, the public defender for the City of St. Louis. On August 20, 1964, defendant was arraigned in the Circuit Court. He appeared in person and with Mr. Noskay, [158]*158waived reading of the information and pleaded not guilty. Then on September 3, 1964, the Circuit Court appointed Earl B. Leadlove as attorney for defendant, and he continued to represent defendant in the trial court and on appeal to this court.

The trial was set for October 16 but was continued at Mr. Leadlove’s request. Meanwhile, on October 14, Mr. Leadlove took the deposition of the prosecuting witness, Whitney Moses. The case was then reset for November 16, the trial actually started on November 17 and was concluded on the 18th.

The first ground asserted as a basis for reversal is that defendant was denied a copy of the transcript of his preliminary hearing in the St. Louis Court of Criminal Correction, thereby violating his constitutional rights as provided in §§ 10 and 18(a) of Article I of the Missouri Constitution.1 In substance, defendant argues that by court rule and statute, enforced by court decisions, a defendant is given the right to a preliminary hearing, which is his first opportunity to face his accuser as guaranteed by § 18(a) of Article I of the Constitution. Such hearing is said to be meaningless and useless unless defendant can obtain a written transcript of such proceedings to use in preparation for trial and for examination of his accuser at the trial, and consequently the denial of such transcript violates § 18(a) of Article I and constitutes a denial of due process in violation of § 10 of Article I.

In his brief and in oral argument defendant contends that his attorney sought, without success, to obtain a copy of the transcript of the preliminary hearing from the court reporter in the St. Louis Court of Criminal Correction. There is nothing in the transcript on appeal with reference to this matter until the motion for new trial. It asserts simply that defendant was denied a copy of the transcript, thereby hindering defendant’s counsel in preparation for trial and denying valuable information for use during the trial. Actually, it is clear that no request of any kind with reference to such transcript was made to the Circuit Court, and no complaint with reference thereto was made to the trial court until the motion for new trial was filed. This is conceded in defendant’s brief, which states: “While no complaint was raised prior or during the trial, defendant feels that he has properly preserved for appeal his objection to the denial of the transcript by his motion for new trial.” Defendant relies on Criminal Rule 27.20(c) 2 relating to plain error.

The right of an accused to a preliminary hearing in a felony case is established by rule of court and by statute. No preliminary hearing in a felony case is even required where there is a grand jury indictment or where an information is substituted for an indictment. Criminal Rule 23.02, § 544.250.3 There is no provision in the Missouri Constitution requiring a preliminary hearing. Actually, as expressed in State v. Richardson, Mo., 347 S.W.2d 165

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Eaton
504 S.W.2d 12 (Supreme Court of Missouri, 1973)
In the Interest of R. G.
495 S.W.2d 399 (Supreme Court of Missouri, 1973)
State v. Maxwell
465 S.W.2d 562 (Supreme Court of Missouri, 1971)
State v. Swiggart
458 S.W.2d 251 (Supreme Court of Missouri, 1970)
Maxwell v. Swenson
254 F. Supp. 899 (W.D. Missouri, 1966)

Cite This Page — Counsel Stack

Bluebook (online)
400 S.W.2d 156, 1966 Mo. LEXIS 791, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-maxwell-mo-1966.