State v. Asher

• Court: Missouri Supreme Court
• Writing for the Court: Reeves
• Citation: State v. Asher, 246 S.W. 911 (Mo. 1922)
• Decision Date: 09 December 1922
• Docket Number: No. 23697.,23697.
• Parties: STATE v. ASHER.

246 S.W. 911

STATE v. ASHER.

No. 23697.

Supreme Court of Missouri, Division No. 2.

December 9, 1922.

Appeal from Criminal Court, Jackson County; E. E. Porterfield, Judge.

James H. Asher was convicted as a habitual criminal of robbery in the first degree, and appeals. Affirmed.

David W. Peters, of Jefferson City, for appellant.

Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Sp. Asst. Atty. Gen.; for the State.

Statement.

REEVES, C.

Convicted as a habitual criminal of robbery in the first degree, defendant was sentenced to the penitentiary "for and during his natural life." From this sentence and judgment, after unavailing motions for a new trial and in arrest of judgment, he appeals.

The information charged that the appellant was convicted on his own confession on the 19th day of December, 1912, in Kansas City, for the crime of murder in the first degree, and, pursuant to such conviction, was sentenced to imprisonment in the penitentiary of the state of Missouri "for and during his natural life"; was duly imprisoned in accordance with the sentence and— "was duly discharged from said penitentiary the state of Missouri under parole of the Governor of the state of Missouri on December 20, 1917; and that the said James H. Asher; after the said discharge of said James H. Asher from said penitentiary of the state of Missouri, to wit, on the 28th day of December, 1920, at the county of Jackson, state of Missouri, did with force and arms, in and upon one Lloyd H. Neff, the servant, clerk, and agent of one C. K. Perrie, unlawfully and feloniously make an assault, and $210 in money, being good and lawful money of the United States of the value of $210, the money and personal property of the said C. K. Perrie, from the person and against the will of the said Lloyd L. Neff, the servant, clerk, and agent of the said C. Perrie as aforesaid, then and there by force and violence to the person of said Lloyd L. Neff, and by putting Lloyd L. Neff in fear of an immediate injury to his person, feloniously did rob, steal, and carry away, against the peace and dignity of the state."

The evidence on the part of the state tend; ed to show that appellant and two companions, all masked, about 10:30 on the night of December 28, 1920, entered the Beacon Hill Pharmacy at Twenty-Fourth and Forest streets in Kansas City, and with drawn revolvers compelled the clerk in charge, together with a delivery boy and three customers, to lie down on the floor while appellant and his accomplices took $210 from the cash register and other valuables from the store. Appellant's evidence tended to prove an alibi.

Appellant complains that the information, so far as it invokes the aid of the Habitual Criminal Act, is insufficient and he challenges the sufficiency of the proof. These, Questions, with others, will be discussed in the opinion.

Opinion.

1. The first point raised by appellant is that, whereas the information charged that appellant "was duly discharged from said penitentiary of the state of Missouri under parole of the Governor of the state of Missouri, on December 20, 1917," yet section 3702, R. S. 1919, the Habitual Criminal Act, provides that—

"If any person convicted of any offense punishable by imprisonment in the penitentiary * * * shall be discharged either upon pardon or upon compliance with the sentence, and shall subsequently be convicted of any offense committed after such pardon or discharge, he shall be punished," etc.

It is argued that the information is defective because the word "parole" is used instead of the word "pardon" as in the statute, and our attention is called to the case of State v. Austin, 113 Mo. 538, 21 S. W. 31, where an indictment, under the Habitual Criminal Act, alleged that the defendant had "complied with said sentence." The court held that the indictment in that case was bad because it failed to recite that the defendant had "been discharged, either by pardon or by compliance with the sentence," and that the indictment should have contained the essential averment that the defendant had been discharged either upon being pardoned or having complied with the sentence. The criticism of the court upon the indictment was summed up in the following language: "But in this case no discharge whatever is alleged." It would appear, therefore, that the chief ground of criticism against the indictment in the Austin Case was its failure to allege the discharge of the defendant, whether by pardon or by compliance with his sentence.

Section 8, article 5, of our Constitution gives the Governor "power to grant * * * pardons, after conviction * * * upon such condition and with such restrictions and limitations as he may think proper."

Section 4144, R. S. 1910, provides that—

"In all cases in which the Governor is authorized by the Constitution to grant pardons, he may grant the same, with such conditions and under such restrictions as he may think proper."

No provision is made either in the Constitution or the statute for "paroles" by the Governor. The question therefore depends on the meaning of word "parole," used in reference to the discharge of prisoners from the penitentiary.

In 29 Cyc. 1562, a parole is defined as:

"A form of conditional pardon, by which the convict is released before the expiration of his term, to remain subject, during the remainder thereof, to supervision by the public authority and to return to imprisonment on the violation of the condition of the parole."

In the case of Fuller v. State, 122 Ala. 32, loc. cit. 37, 26 South. 146, 45 L. R. A. 502, 82 Am. St. Rep. 1, the court had before it a similar question. The Constitution of Alabama provides that "the Governor shall have power * * * after conviction, to grant * * * pardons." The court said:

"It is the settled law that this grant includes power to grant conditional pardons, the condition to be either precedent or subsequent, and of any nature so long as it is not illegal, immoral, or impossible of performance; and that a breach of the condition avoids and annuls the pardon."

To the same effect was the holding in Kennedy's Case, 135 Mass. 48. Chief Justice Marshall in the case of U. S. v. Wilson, 7 Pet. (U. S.) 160, 8 L. Ed. 640, defined a pardon as:

"An act of grace, proceeding from the power invested with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed."

The power to pardon includes the power to parole (In re Conditional Discharge of Convicts, 73 Vt. 414, 51 Atl. 10, 56 L. R. A. 658.

It must follow from the foregoing that a parole is a conditional pardon, and that a "parole" given by the Governor is but an exercise of the power vested in him by the Constitution and statute with respect to the issuance of conditional pardons. Moreover, it must be understood that section 3702, supra, does not within itself provide for the conviction of a defendant, but simply provides severer punishment for the crime charged if convicted. State v. Collins, 266 Mo. 93, 180 S. W. 866; State v. Levy, 262 Mo. 181, 170 S. W. 1114.

There is no infringement of section 22 of article 2 of our Constitution. The right therein vouchsafed to the accused is simply "to demand the nature and cause of the accusation." This means:

"That the information shall specifically bring the defendant within all the material words of the statute, for it is the inflexible rule in criminal pleading that, in all indictments or informations for felonies, nothing can be left to intendment or implication." State v. Barnes, 281 Mo. 514, 220 S. W. 848.

In the instant case, no complaint is made against the information for the crime charged, and for which appellant was tried and convicted. The complaint is made against the words of that portion of the information relating to the possibility of severer punishment, if convicted of the crime charged....