State v. Ash, 45261

• Citation: 296 S.W.2d 41
• Decision Date: 12 November 1956
• Docket Number: No. 2,No. 45261,45261,2
• Parties: STATE of Missouri, Respondent, v. David E. ASH, Appellant
• Court: United States State Supreme Court of Missouri

Page 41

296 S.W.2d 41

STATE of Missouri, Respondent, v. David E. ASH, Appellant.

No. 45261.

Supreme Court of Missouri, Division No. 2.

Nov. 12, 1956.

Rehearing Denied Dec. 10, 1956.

Writ of Certiorari Denied Feb. 25, 1957.

See 77 S.Ct. 584.

Richard W. Mason, St. Joseph, for appellant.

John M. Dalton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., for respondent.

BROADDUS, Special Judge.

This is an appeal from a judgment of the Circuit Court of Gentry County sentencing appellant to a term of three years in the penitentiary on his conviction, under the habitual criminal statute, for the offense of breaking jail.

By an information filed in the Circuit Court of Holt County, it was alleged that on January 18, 1955, appellant was duly convicted by a jury in the circuit court of said county of the offense of burglary and his punishment fixed at a term of ten years in the state penitentiary, and that he, appellant, was by said court duly committed to the county jail of Holt County to await a hearing for new trial, and that while appellant was confined in said jail, he did, on or about the 29th day of January, 1955, break said jail by forcing off the hinges and hasps of the door thereof and by bursting the same open and escaping therefrom. Said information also alleged two prior convictions of felony in the State of Texas.

After waiving formal arraignment and entering his plea of not guilty, appellant applied for and was granted a change of venue to Gentry County. There the cause went to trial on September 8, 1955, resulting in a verdict finding appellant guilty of two prior convictions of felony, and breaking the county jail and escaping, as charged in the information. Appellant's punishment was assessed, as we have stated, at imprisonment in the penitentiary for a term of three years, the maximum provided for in the statute (see Section 557.380, RSMo 1949, V.A.M.S.).

Inasmuch as the sufficiency of the evidence to support the verdict is not challenged a brief outline of the facts will suffice. The evidence on the part of the state was that on the same date appellant was convicted of burglary, January 18, 1955, he was remanded to the custody of the sheriff and by the latter placed in the Holt County jail. The sheriff testified that on January 29, 1955, there were three prisoners in his custody, the appellant, a James Milligan and a Kenneth Hanner; that he fed them about 6:30 p. m. and that shortly thereafter he received a telephone call requiring him to leave the jail; that he locked them in and left. The prisoners were confined in a big room in the upstairs of the jail, the room having an inner steel door with bars and locked with a padlock, and an outer door, six to eight inches thick, with an iron bar across the outside fastened into a hasp, and also locked with a padlock.

The sheriff returned to the jail about 9:00 p. m. and found the inner door open and the hasp on the outer door pulled out. The outer door had been sprung, the hinges were bent and the casing of the door torn off. Inside the cell a piece of plumbing pipe, which had been torn from the sink, was found near the door. A table leg had been removed from a table in the room and was also found near the door. Appellant and Milligan were gone.

The third prisoner, Hanner, testified that Milligan unlocked the inner door with a key; that he did not know who took the piece of pipe from the sink, but that Milligan took the leg off the table; that Milligan pried on the door with the piece of pipe and that appellant pried on the door with the table leg. Witness did not try to stop appellant and Milligan from leaving. He did, however, refuse to go with them.

On April 22, 1955, appellant was apprehended in Los Angeles, California, and returned to Missouri.

Appellant's first point is that at the time he was placed on trial the original information was not before the court buy only a copy. According to the record, he made no objection, nor did he mention this supposed error in the motion for new trial. Thus the point is not preserved for appellate review. State v. Wilson, 361 Mo. 78, 233 S.W.2d 686.

Appellant's next contention is that the court erred in giving Instruction 2. This instruction did not, as appellant claims, advise the jury that it was their mandatory duty to find appellant to be an habitual criminal and then give him the maximum punishment. Rather the instruction told the jury that they must determine beyond a reasonable doubt whether appellant had or had not been previously convicted, sentenced, served such sentences and discharged thereafter as alleged in the information; that if they found the prior convictions to be as alleged and also found the appellant guilty of breaking jail and escaping therefrom, then it was their mandatory duty to assess the maximum punishment. The instruction was correct. State v. English, 308 Mo. 695, 274 S.W. 470; State v. Jones, 339 Mo. 893, 98 S.W.2d 586. The case of State v. Cardwell, 332 Mo. 790, 60 S.W.2d 28, 31, upon which appellant relies, is clearly distinguishable from the instant case. In that case 'under instruction No. 1, the jury was authorized to assess only the maximum punishment without any reference to the prior...