State v. Turley

416 S.W.2d 75, 1967 Mo. LEXIS 869

• Court: Supreme Court of Missouri
• Decided: June 12, 1967
• Docket: 52206
• Status: Published

Opinions

HOLMAN, Presiding Judge.

This appeal is from an order overruling defendant’s motion (filed under S.Ct. Rule 27.26, V.A.M.R.) to vacate judgments and sentences theretofore imposed upon defendant. The judgments involved were entered on June 14, 1965, when defendant, after appointment of counsel, entered a plea of guilty to charges of burglary and stealing. He was sentenced to imprisonment for four years for the burglary and three years on the charge of stealing, the sentences to run consecutively.

The motion alleged that the judgments should be vacated for the following reason:

“1. On or about the 11th day of June, 1965, a preliminary hearing was conducted in the Magistrate Court of Jasper County without the movant being accorded the benefit of legal counsel after movant had repeatedly advised the court of his inability to secure counsel and of his desire for the court to appoint legal counsel to represent him and of his ignorance of law, legal terms and court proceedings and because of his ignorance could not question or defend himself against the State’s witnesses with any competence, efficiency or proficiency whatsoever.

“2. The denial of counsel to movant at the critical stage of the proceedings held against him rendered the subsequent judgment and sentence unlawful and contrary to the law and Constitution of the State of Missouri and violative of the Constitution of the United States.”

We rule that the trial court acted properly in overruling the motion as the allegations therein were not sufficient to warrant the vacation of the judgments. In State v. Turner, Mo.Sup., 353 S.W.2d 602, 604, we stated that “[a] preliminary examination is not a trial of the accused for the offense alleged in the complaint but merely an inquiry to determine if there is probable cause to believe that a felony has been committed and that the accused is the offender so that he may be bound over and formally charged and tried in the circuit court or discharged if probable cause is not found. A preliminary hearing is designed to prevent possible abuse of power by the prosecution and at the same time permit the arrest and detention of an accused in a proper case. Neither the federal or state constitution, nor any of our statutes require the magistrate to appoint counsel for the accused at a preliminary examination.” To like effect, see also State v. McClain, Mo.Sup., 404 S.W.2d 186; State v. Engberg, Mo.Sup., 391 S.W.2d 868; State v. Phelps, Mo.Sup., 384 S.W.2d 616; State v. Gagallarritti, Mo.Sup., 377 S.W.2d 298; State v. Worley, Mo.Sup., 383 S.W.2d 529, and State v. McMillian, Mo.Sup., 383 S.W.2d 721. A case very similar to the one at bar is State v. Small, Mo.Sup., 386 S.W.2d 379. We held therein that the magistrate was not required to appoint counsel for the accused at the preliminary and, in any event, any defect in connection with the preliminary hearing was waived when a plea of guilty was entered by the defendant in the circuit court after being accorded the right of consultation with counsel.

In his brief defendant says he was prejudiced by his failure to have counsel at the preliminary because he was thus denied the right to have counsel to cross-examine ' the State’s witnesses and to present witnesses in his favor. That is just another way of stating his contention that he was entitled to have counsel provided at his preliminary hearing. What we have heretofore said will indicate our view that there is no merit in that contention.

Defendant has cited the cases of Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, and White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193. Pointer did not decide the question as to the necessity of appointing counsel for indigent defendants at a preliminary hearing, the court saying that “In this Court we do not find it necessary to decide one aspect of the question petitioner raises, that is, whether failure to appoint counsel to represent him at the preliminary hearing unconstitutionally denied him the assistance of counsel within the meaning of Gideon v. Wainwright, supra [372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799].” 380 U.S. 402, 85 S.Ct. 1067. White has no application here because in that case the court reversed a conviction based in part upon evidence that the defendant pleaded guilty to the crime at a preliminary hearing where he was without counsel.

The judgment is affirmed.

HENLEY, J., concurs. SEILER, J., concurs in result and dissents in part in separate opinion filed.