State v. Cook , 432 S.W.2d 345 ( 1968 )

DONNELLY, Judge.

Appellant, Charles Frank Cook, was convicted by a jury in the Circuit Court of Phelps County, Missouri, of operating a motor vehicle in excess of seventy miles per hour on a divided highway designated and marked as a federal route, a misdemeanor under § 304.010, RSMo 1959, V.A.M.S. (as amended Laws 1965). His punishment was assessed at a fine of $500. Section 304.570, RSMo 1959, V.A.M.S. He appealed to the Springfield Court of Appeals, which Court affirmed the judgment. We ordered the case transferred to this Court and it is ^determined here “the same as on original appeal.” Rule 84.05 (h), V.A. M.R., Mo.Const., Art. V, § 10, (1945), V.A. M.S. We reverse and remand.

Trial was had on November 2, 1966, in the Circuit Court of Phelps County, Missouri. The transcript on appeal shows the following:

“THE COURT: State of Missouri vs. Charles Frank Cook, Case No. 2831.

“The State announces ready for trial, is that right?

“MR. HOERTEL: That’s right, Your Honor.

“THE COURT: Defendant does not appear. His attorney, Mr. White, appears, but says he cannot announce ready for trial because his client is not present. Is that correct?

“MR. WHITE: Yes, sir, that’s right.”

The case then proceeded to trial, evidence was heard, instructions were given, and, after the jury returned its verdict, the following docket entries were made by the trial court on November 2, 1966:

“Now on this day this cause coming on to be heard, comes William W. Hoertel, Prosecuting Attorney of Phelps County, Missouri, and the defendant, Charles Frank Cook does not appear in person but does appear by his attorney, Jay White; whereupon defendant’s attorney, Mr. White, announces not ready for trial because his client is not present, and the State announces ready for trial. Also comes the jury, impaneled and sworn, to-wit: * * * twelve good and lawful men who being duly selected, tried and sworn the issues herein joined well and truly to try. Trial proceeds with State offering evidence, and being finished, State rests. Defendant .offers no testimony. The jury, after hearing the evidence, arguments of counsel and instructions of the Court, retired to their room to consider their verdict. Jury, after deliberating, returned into open Court the following verdict, to-wit: We, the jury, find defendant, Charles Frank Cook, guilty, as charged, and assess his punishment at $500.00 fine. Edward R. Sands, Foreman.’ Verdict received and filed by the Court and jury discharged in this cause.”

On December .7, 1966, appellant appeared in the Circuit Court of Phelps County, Missouri, in person and with his attorney, and was sentenced.

Appellant contends that the trial court “erred by proceeding with the trial in defendant’s absence.” We agree.

Section 546.030, RSMo 1959, V.A.M.S., reads as follows:

“No person indicted for a felony can be tried unless he be personally present, during the trial; nor can any person be tried or be allowed to enter a plea of guilty in any other case unless he be personally present, or the court and prosecuting attorney shall consent to such trial or plea in the absence of the defendant; and every person shall be admitted to make any lawful proof by competent witnesses or other testimony in his defense; provided, that in all cases the verdict of the jury may be received by the court and entered upon the records thereof in the absence of the defendant, when such absence on his part is willful or voluntary, and when so received and entered shall have the same force and effect as if received and entered in the presence of such defendant; and provided further, that when the record in the appellate court shows that the defendant was present at the commencement or any other stage of the trial, it shall be presumed, in the absence of all evidence in the record to the contrary, that he was present during the whole trial.” See also S.Ct.Rules 29.02 and 29.04, V.A. M.R.

The statute and rules provide that no person can be tried in cases involving felonies or misdemeanors unless he be personally present, subject to certain recognized exceptions. For example, in cases involving felonies or misdemeanors, “when the record in the appellate court shows that the defendant was present at the commencement or any other stage of the trial, it shall be presumed, in the absence of all evidence to the contrary, that he was present during the whole trial.” Cf. State v. Hope, 100 Mo. 347, 13 S.W. 490 (1890); State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245 (1938) ; State v. McCrary, 365 Mo. 799, 287 S.W.2d 785 (1956); and State v. Colbert, Mo.Sup., 344 S.W.2d 115 (1961). Further, if the accused requests, and the Court and prosecuting attorney consent, a trial may be had in a misdemeanor case with the accused absent. State v. Norton, Mo.Sup., 347 S.W.2d 849 (1961); City of St. Louis v. Walker, Mo.App., 309 S.W.2d 671 (1958); S.Ct.Rule 37.485, V.A.M.R.

The exceptions do not apply in this case. The transcript on appeal does not affirmatively show that appellant was present at the commencement of the trial or at any other stage of the trial. Cf. State v. Able, 65 Mo. 37, 38 (1877), a felony case. No request of appellant for a trial in his absence appears of record. The conviction cannot stand. See Annotation, 68 A.L.R.2d 638.

The judgment is reversed and the cause is remanded for proceedings not inconsistent with this opinion.

HOLMAN, C. J., and HENLEY, FINCH and EAGER, JJ., concur. STORCKMAN, J., dissents in separate dissenting opinion. SEILER, J., dissents and concurs in dissenting opinion of STORCKMAN, J.