State v. Bearden
| Decision Date | 11 February 1952 |
| Docket Number | No. 42745,No. 1,42745,1 |
| Parties | STATE v. BEARDEN |
| Court | Missouri Supreme Court |
J. E. Taylor, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., for defendant in error.
Defendant was charged with grand larceny under the habitual criminal act RSMo 1949, Sections 560.155 and 556.280, V.A.M.S. On trial, the jury found defendant 'guilty as charged in the information' and assessed his punishment at five years imprisonment in the state penitentiary. RSMo 1949, Section 560.160, V.A.M.S. He has brought the record proper before us on writ of error.
No brief or assignment of errors has been filed on behalf of plaintiff in error, nevertheless it is our duty to review the record, determine its sufficiency and render judgment. RSMo 1949, Sec. 547.270, V.A.M.S.; State v. Horn, 336 Mo. 524, 79 S.W.2d 1044; State v. Humphrey, 357 Mo. 824 210 S.W.2d 1002, 1005. No bill of exceptions has been filed and our view is limited to the record proper. State v. Felder, Mo.Sup., 242 S.W.2d 535; State v. Birkner, Mo.Sup., 229 S.W.2d 674. The situation, however, would not have been changed by the filing of a bill of exceptions since no motion for a new trial was ever filed. RSMo 1949, Sec. 547.030, V.A.M.S. State v. Lyscio, Mo.Sup., 95 S.W.2d 1161.
As stated, plaintiff in error was charged with grand larceny, towit, the larceny of '2 Jersey heifer calves, of the total value of $180.00,' the property of Lyman Cave, and it was further charged that on two prior occasions, as therein specified, the plaintiff in error had been charged and convicted of other felonies in this state punishable by imprisonment in the penitentiary; that prison terms had been assessed in each case; and that he had been discharged from the penitentiary sentences assessed under commutation of sentence by the governor of the state.
The amended information was in proper form and sufficient to charge grand larceny under the habitual criminal act. RSMo 1949, Secs. 560.155 and 556.280, V.A.M.S.; State v. Martin, 357 Mo. 368, 208 S.W.2d 203, 205; State v. Sumpter, 335 Mo. 620, 73 S.W.2d 760.
Plaintiff in error was duly arraigned and entered a plea of not guilty. As stated, the jury found plaintiff in error 'guilty as charged in the information' and assessed his punishment at imprisonment in the penitentiary for a term of five years. The jury made no express finding as to whether or not he had been previously convicted of either or both of the prior felonies as alleged in the information. See State v. Humphrey, supra, 210 S.W.2d 1002, 1005. The jury could and did assess...
To continue reading
Request your trial
-
State v. Crow
...and for that reason our review is limited to those matters upon the record before us. Supreme Court Rule 28.02, V.A.M.R.; State v. Bearden, Mo., 245 S.W.2d 838. In his brief defendant purports to raise several constitutional questions, some of which were not at any time presented to the tri......
-
State v. Abbott
...in the motor vehicle statute, Section 560.165 RSMo 1949, V.A.M.S., without a finding of a previous conviction. State v. Bearden, Mo.Sup., Div. 1, 245 S.W.2d 838, 839(4); State v. Berry, 361 Mo. 904, 907-908, 237 S.W.2d 91, 93. Appellant was granted allocution and the judgment and sentence w......
-
State v. Foster
...that record, determine its sufficiency and render judgment. Sec. 547.270; State v. Horn, 336 Mo. 524, 79 S.W.2d 1044; State v. Bearden, Mo.Sup., 245 S.W.2d 838. The amended information, as filed in the circuit court of the city of St. Louis and upon which appellant was tried and convicted, ......
-
State v. Kelly
...Mo.Sup., 237 S.W.2d 132, 134[6, 7]. The punishment assessed was authorized. Sections 560.160, 556.280, supra; State v. Bearden, Mo.Sup., 245 S.W.2d 838, 839[4, 5]. The words 'from a building' contained in the verdict may be treated as surplusage. State v. Falco, 330 Mo. 982, 987, 51 S.W.2d ......