State v. Bohannon, 41985
| Decision Date | 11 December 1950 |
| Docket Number | No. 2,No. 41985,41985,2 |
| Citation | 361 Mo. 380,234 S.W.2d 793 |
| Parties | STATE v. BOHANNON |
| Court | Missouri Supreme Court |
Sigmund M. Bass, St. Louis, for appellant.
J. E. Taylor, Atty. Gen., Lawrence L. Bradley, Asst. Atty. Gen., for respondent.
The appellant was convicted by a jury in the circuit court of the City of St. Louis on an information drawn under the Habitual Criminal Act, Sec. 4854, R.S. 1939, Mo.R.S.A., charging prior convictions of seven felonies, and the alleged instant crime of feloniously stealing a motor vehicle of the value of more than $30, the property of one Simon Bluestein, in violation of Sec. 8404(a), R.S.1939, Mo.R.S.A. The maximum punishment under that statute is imprisonment in the State penitentiary for 25 years. The jury found he had been convicted of four of the prior felonies and guilty of the larceny here charged, and assessed his punishment at imprisonment in the penitentiary for 8 years.
Appellant assigns error here under 15 points. Nine of these assail in one way or another the habitual criminal part of the information, and the reading thereof including the jurat, to the jury. One complains that appellant was not granted the proper number of challenges to the members of the jury panel. Two charge error in two instructions. Two complain of insufficient proof. And the last one asserts there were numerous prejudicial errors in the argument of counsel for the State to the jury.
The facts, in brief, were that the motor vehicle allegedly stolen was a 1946 Mercury four door sedan, which the owner Bluestein had locked and parked in front of his apartment on Eastern Avenue about 6:45 p.m. on December 16, 1946. About 9 p.m. he looked out of his window and saw the automobile was gone. He called the police. They came out and he showed them his title certificate and later gave it to them. He first testified the motor number of the automobile was 99-A-1107430. Later he said he didn't look at the number on the automobile engine block itself, and that the number he had just give was on his title certificate. He next saw his automobile at police headquarters the following night, December 17, after the police had called him.
Early on that day of December 17 appellant had talked to Carl McReynolds, a filling station operator in St. Louis about a 1946 Mercury sedan, first on the telephone around noon. The second time was about 9 p.m. that night. McReynolds had known appellant for 2 or 3 months by the name of Sam. His partner in the filling station business was his brother-in-law Lincoln Hayes. The latter testified he was with McReynolds that night when they met appellant. It was at a parking lot near te filling station. Hayes said they went there to 'meet a party and buy an automobile.'
Presently appellant drove into the lot with the Mercury sedan and stopped. McReynolds and Hayes got in the front seat with him. Soon thereafter a police car turned in across the front of the parked Mercury car and stopped. In it were Detective Sergeant Richard Jerabek, in charge of the Auto Theft Bureau of the St. Louis Police Department and Detective Sergeant Walter Cliffe of the same Bureau. Sergeant Jerabek testified the occasion of their trip to the parking lot was that they had received information from Lincoln Hayes, the partner of Carl McReynolds, that those two would be in that parking lot at that time with an automobile they intended to buy. Sergeant Cliffe had been posted on foot at a nearby corner and saw the appellant drive in.
Sergeant Jerabek testified specifically, and Sergeant Cliffe and McReynolds more generally, as to what occurred next. Jerabek said they informed appellant he was under arrest and he asked on what ground. Jerabek told him on suspicion of having stolen the Mercury sedan he was driving. Appellant answered that it 'is a good car' and produced an Illinois license certificate therefor, showing the motor number was 99-A-983264, purportedly issued to Harry Turner of 1718 Coyne Street, East St. Louis, Illinois, November 21, 1946. The first, or 99-A part of this motor number was the same as on Bluestein's Missouri certificate for his Mercury sedan, but the last six figure number was different, that on Bluestein's certificate being the seven figure number 1107430. Detective Sergeant Neibert testified he had investigated the above East St. Louis address as of the above date and found no such street number in the city directory, and no telephone book showing a person thereat named Harry Turner.
Appellant said he had bought the Mercury sedan about noon that day from a man named Lester ________ in front of an auto auction place on North Broadway. He didn't know the man's surname and couldn't describe him, and refused to answer further questions until he had seen his lawyer. The police turned the automobile over to Bluestein because it was the same color as his and on his identification of particular parts or accessories thereon, as described by him in his testimony and again to the officers. Also the automobile keys turned over to the police by Bluestein fit the automobile taken from appellant.
Later officer Harris who had been assigned to the laboratory of the Police Department for four years, testified he took two photographs of the motor block or frame under the engine hood of the Mercury sedan claimed by Bluestein. One photograph was of the number 99-A-983264, the same as appears in appellant's Illinois title certificate. The other photograph was of the same number after chemicals had been applied to the metal. The witness said he saw under the figures 98, or 983, traces of the figures 110, these being the same as the first three figures in the number on Bluestein's automobile title certificate.
One other evidentiary fact was proven by the State. J. R. Shibley, registrar of automobile title certificates in Randolph County Arkansas, testified a book of such blank certificates, No's 23,401 to 23,450 [and therefore presumptively containing certificate No. 23,408], was taken from his office between October 3 and November 22, 1946. A certificate bearing that serial number marked 'Exhibit G' was shown to him, purportedly issued to Harry Turner in Pulaski County, Arkansas, covering an automobile with motor number 99-A-983264. This was the same license and motor number as appeared in appellant's Illinois certificate heretofore mentioned. Mr. Shibley said his office did not issue the Arkansas certificate.
Next, Ray H. McCarthy, a supervisor in the filing division of the office of the Illinois Secretary of State in December, 1946, was shown the Arkansas certificate 'Exhibit G.' He testified that it was a part of the original files in his office; that he had brought it to appellant's trial; and that his office accepted it as authentic and retained it when they issued the Illinois certificate for one automobile with the same motor number shown in the Arkansas certificate to the same designated person Harry Turner. The appellant offered no evidence, but stood on a demurrer to the State's evidence.
Appellant's first point is that the trial court erred in overruling his motion to quash the State's second amended information. His counsel cite the habitual criminal statute, Sec. 4854, supra; the 5th and 14th Amendments, Const.U.S.; Secs. 2 and 10 of Art. I, Art. II and Art. V, Const.Mo. 1945, Mo.R.S.A.; and Manz v. St. Louis, I. M. & S. Ry. Co., 87 Mo. 278. Counsel states merely that he is offering the foregoing citations without argument, notwithstanding the holding in State v. Brinkley, 354 Mo. 337, 374(27), 189 S.W.2d 314, 334-335(49, 50).
The first four citations to the Federal and State Constitutions can only be made as bearing on the right to liberty and due process. Articles II and V of the State Constitution have no bearing at all. The first deals with the distribution of the powers of government, and the second covers the Judicial Department. The Manz case holds that even in civil litigation a penal statute is construed more strictly than would be required in ordinary cases. And the cited part of the Brinkley case holds the habitual criminal section 4854 imposes the aggravated penitentiary punishments designated therein when the defendant's prior conviction was of a crime merely punishable by a penitentiary sentence though it may also range down to a jail sentence or fine. Appellant evidently thinks the punishment for the prior crime must be a penitentiary punishment, and no less. We do not agree. The holding to the contrary in the Brinkley case was followed in State v. Updegraff, Mo.Sup. Div. 2, 214 S.W.2d 22, 24(1, 2), and State v. Hacker, Mo.Sup., 214 S.W.2d 413, 414, 415(3).
Appellant's 2nd, 3rd, 7th, 8th, 9th and 10th points complain that the second amended information, in invoking the Habitual Criminal Act, charged he had previously been convicted of seven other felonies, whereas it should have been limited to one, either by allegation or the State's election; and that the information was read to the jury and sustaining evidence introduced by the State--all over appellant's objections in various forms. The authorities cited are the Manz case, supra, and Moore v. Shelly Motors, Inc., Mo.App., 225 S.W.2d 953, 956-957. Neither has the slightest bearing on the Habitual Criminal Act. The Manz case was a civil suit against a railroad under the double damage act, and as stated above the decision held the statute was penal in nature and therefore to be more strictly construed as to allegations and proof. And the Moore case was a civil suit for conversion of personal property seeking both actual and punitive damages. It was merely held there that the accumulation of improper and predjudicial comments, questions, insinuations and accusations by plaintiff's counsel constituted reversible error. No question or principle was involved that would be applicable here.
Both these decisions are far afield from the instant legal question, which is...
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