State Missouri v. Robert Louis Thompson

On this appeal we consider the propriety of an order overruling defendant's motion to vacate the judgment of his conviction
and a sentence of twenty years. No hearing was held, but the questions which we determine here are purely of law. It is necessary
to state in some detail the proceedings of record. The motion to vacate was filed on December 19, 1963, and overruled on January
8, 1964. The original notice of appeal was late, but this court granted leave to file a notice of appeal under Rule 28.07,
and such was filed. Defendant was arrested on a warrant stating the charge against him as attempted robbery; the felony complaint charged the
attempted robbery of one Murreldean May Archer. Defendant first waived a preliminary hearing and was bound over to the Circuit
Court; there, on March 30, 1961, an information was filed charging that defendant did "* * * wilfully, unlawfully and feloniously,
make an assault in and upon one Murreldean May Archer, and did then and there attempt to rob and take from her person valuable
property in the presence of and against the will of the said Murreldean May Archer, by putting her in fear of some immediate
injury to her person, and did then and there fail in the perpetration thereof, * * *." On the same day defendant, by counsel,
moved to have the cause remanded to the Magistrate Court for a preliminary hearing, and it was so remanded. A preliminary
hearing was held and defendant was again bound over to the Circuit Court on May 4, 1961. The State's brief states that the
original information was then refiled in the Circuit Court on May 5, 1961, and we shall assume this to be the fact, although
the refiling is not shown in our transcript. On August 28, 1961, an amended information was filed charging defendant with
assault with malice with a dangerous and deadly weapon; we quote the following from that document: "* * did then and there
in and upon one Murreldean May Archer, feloniously, on purpose and of his malice aforethought, make an assault and did then
and there, on purpose and of his malice aforethought, feloniously assault, beat, wound and stab, the said Murreldean May Archer,
with a knife, which was then and there a dangerous and deadly weapon likely to produce death and great bodily harm, which
knife he, the said Robert Louis Thompson, then and there had and held in his hand, with intent then and there, the said Robert
Louis Thompson, on purpose and of his malice aforethought, feloniously to rob the said Murreldean May Archer, * * *."