Green v. Kaiser, 2767.

• Decision Date: 19 February 1945
• Docket Number: No. 2767.,2767.
• Citation: 59 F. Supp. 361
• Parties: GREEN v. KAISER, Warden.
• Court: U.S. District Court — Western District of Missouri

59 F. Supp. 361

GREEN v. KAISER, Warden.

No. 2767.

District Court, W. D. Missouri, Central Division.

February 19, 1945.

Petitioner, pro se.

REEVES, District Judge.

The petitioner has caused to be presented his application for a writ of habeas corpus. It is asserted in his petition or application that he entered a plea of guilty in a state court on the 17th of March 1930 to a charge of kidnapping and upon such plea was sentenced to life imprisonment. It was and is his contention that the statute upon which the information was based was Section 4021, R.S.Mo.1929, Section 4415, R.S.Mo.1939, Mo.R.S.A., and that said section limited the punishment to not more than ten years in the penitentiary. He asserts, therefore, that the sentence imposed was illegal. He claims that this court now has jurisdiction because the Supreme Court of Missouri refused to grant the petitioner a hearing, and that the Supreme Court of the United States has denied certiorari.

1. Attached to the petition, or application, was a certified copy of the information filed by the prosecuting attorney of Jackson County, Missouri. Such information contained an averment that the petitioner had theretofore been convicted in Lyons County, Kansas, for the crime of forgery; had been sentenced to the penitentiary; served the sentence imposed; and had been discharged after full compliance with the sentence.

An inspection of the Missouri statute of the same revision, being Section 4461 R.S. Mo.1929, now Section 4854, R.S.Mo.1939, Mo.R.S.A., discloses that punishment is prescribed for a second offense. Section 4462, R.S.Mo.1929, now Section 4855, R.S.Mo. 1939, Mo.R.S.A., provides a standard for admeasuring punishment in the event of a conviction under the laws of another state.

2. Under the statute it was not necessary for the petitioner to be convicted as an habitual criminal. It was sufficient for the prosecuting attorney to allege a former conviction for the sole purpose of securing an augmentation of the punishment prescribed by statute for the specific offense charged.

State v. Humphries, 350 Mo. 938, loc. cit. 941, 169 S.W.2d 350, holds that it is only necessary to charge prior conviction. The matter was more comprehensively covered in State v. Collins, 266 Mo. 93, loc. cit. 97 and 98, 180 S.W. 866, loc. cit. 867. The court said: "This statute creates no offense, and in no manner authorizes a conviction on a charge of being an habitual criminal, or anything else. It is not even a part of the article on `Offenses,' but is incorporated in the article on `Miscellaneous Provisions and Definitions.' It only prescribes a punishment, and provides that in case of a second conviction the penalty shall be severer `because by his persistence in the perpetration of crime he has evinced a depravity, which merits a greater punishment.'"

It follows that, when the petitioner entered his plea of guilty to a charge of kidnapping, and by which information the court was informed of a previous conviction, the trial judge was justified in increasing the penalty over that limited in the statute.

3. The first or original crime committed by petitioner was that of forgery in the State of Kansas. It was upon conviction for such an offense that he was imprisoned and served the term of his imprisonment. Section 4462, supra, takes into account that the punishment under the laws of another state might differ from that of the State of Missouri, hence it provides as follows: "Every person who shall have been convicted in any of the United States, or in any district or territory thereof, * * * of an...