State v. Breeden

Decision Date05 June 1944
Docket NumberNo. 38846.,38846.
Citation180 S.W.2d 684
PartiesSTATE v. BREEDEN.
CourtMissouri Supreme Court

Appeal from Circuit Court, Caldwell County; James S. Rooney, Special Judge.

Alvin Breeden was convicted of burglary and larceny under the Habitual Criminal Law, and he appeals.

Affirmed.

R. B. Taylor, of Chillicothe, for appellant.

Roy McKittrick, Atty. Gen., and Frank W. Hayes, Asst. Atty. Gen., for respondent.

BOHLING, Commissioner.

This is an appeal by Alvin Breeden from a judgment imposing a sentence of twenty-five years' imprisonment for burglary, see Secs. 4434, 4445, R.S.1939, Mo.R.S.A., and larceny, Sec. 4448, Ibid., in conformity with the verdict of the jury — twenty years for the burglary and five years for the larceny. The conviction was under the habitual criminal law, Sec. 4854, Ibid. The errors asserted involve principally the sufficiency of the evidence on certain issues, the credibility of the prosecuting witness, the propriety of instructions given and refused, and remarks of the State's counsel.

Appellant's complaint that the State failed to make a case is upon the theory the prosecuting witness was unworthy of belief rather than that there was no evidence establishing the corpus delicti and appellant's participation therein. The testimony of the prosecuting witness, Mrs. Grace Donovan, established that the door of the dwelling house had been unlocked by the burglars; that $43 was burglariously stolen; and that appellant was one of the two committing the offense, he having stood by her bed to enforce quiet. She testified that the moon and two street lights cast some light into her room. Appellant's cases are to the effect that a conviction may not rest upon a mere suspicion of an accused's guilt and involved a failure of proof of some essential element of the State's case. State v. Clark, 220 Mo.App. 1308, 1310, 289 S.W. 963, 964. Here we have substantial proof if the witness is to be believed, and the cases cited do not establish error. The credibility of the witness was for the triers of the fact. The burglary and larceny took place about 3:15 or 3:20 a.m. It is true her testimony is contradictory in a few respects. For instance and principally, she testified in one place she saw appellant's face but on cross-examination testified that she couldn't see the faces of the men; that she did not tell the sheriff the next morning who they were; that in one instance in trying to identify their voices after the arrest she became confused. On the other hand she, among other things, positively identified appellant as one of the burglars; testifying that she could tell his face was slim; that she had seen him working at a neighbor's; that she had an idea who the burglars were but didn't say, although she described them to the officers and told them the shape of appellant's face; that she could see their bodies and could tell what kind of clothing they had on. She identified a leather jacket of appellant's. The officers testified she gave them a good description of the burglars. There was evidence in the case corroborating the testimony of this witness. In these circumstances her credibility was for the jury.

The instruction on the credibility of the witnesses concluded: "If you believe that any witness has knowingly and willfully sworn falsely to any material fact, you are at liberty to reject all or any portion of such witness' testimony which you may find and believe to be false." The complaint here is of the omission of the principle of the maxim "falsus in omnibus." Appellant's cited cases only go to the propriety of embodying in instructions, in proper instances, the principle of said maxim. They do not establish that its omission is prejudicial error. In one of appellant's cases (State v. Rozell, Mo.Sup., 279 S.W. 705, 709[7]) a majority of the court explicitly considered that it was not error to tell the jury to reject testimony found to be false — the complaint made in appellant's motion for new trial. Such instructions are not a part of the law of the case. Appellant, if not satisfied, should have requested an instruction embodying his theory. We have considered that trial courts have a wide discretion in giving like instructions and usually their refusal is not reversible error. State v. Caviness, 326 Mo. 992, 998, 33 S.W.2d 940, 943[9]; State v. Lonon, 331 Mo. 591, 600[8], 56 S.W.2d 378, 382[9]. See general discussion in State v. Willard, 346 Mo. 773, 782, 142 S.W.2d 1046, 1052 [12-19], and cases there cited.

Appellant makes several assertions, most of a general nature, attacking his conviction under the habitual criminal law. The statement that there was no evidence connecting him with the records of a previous conviction seeks the facts. In addition to the identity of names et cetera; the circuit clerk of Livingston county identified appellant as the person sentenced, upon his plea of guilty to the charge of burglary and larceny, to three years' imprisonment on each charge, the same to run concurrently, in the Intermediate Reformatory from January, 1937; and the ex-sheriff of Livingston county identified appellant as the person he delivered to the prison authorities in February, 1937, under sentence for burglary and larceny. The abstract of the record also shows that appellant was transferred to the Missouri penitentiary and thereafter discharged from said penitentiary under full time. The questioning by appellant's counsel and his remarks of record were to the effect that appellant had been received at the State prison and was discharged after serving his full sentence, and no objection interposed by counsel questioned the identity of appellant or the offense for which he was imprisoned. The habitual criminal law, Sec. 4854, R.S.1939, Mo.R.S.A., insofar as here in question applies to a person convicted of "any offense punishable by imprisonment in the penitentiary." The offense of burglary and larceny are so punishable. Secs. 4448 and 4445, R.S.1939, Mo.R.S.A. Appellant was imprisoned in the Intermediate Reformatory and was thereafter transferred to the penitentiary and discharged from the penitentiary after serving "full time." The habitual criminal law was applicable. Consult State v. Marshall, 326 Mo. 1141, 1144 (I), 34 S.W.2d 29, 30[1, 2], applying the law to one sentenced to imprisonment in the city workhouse of the city of St. Louis upon conviction of an offense punishable by imprisonment in the penitentiary.

We have examined instructions Nos. 3, 4, 6, 7, 15, 16, 17, 18, 19, 20, and 21 in the light of appellant's general assertions. Instructions 15 to 21, inclusive, were form of verdict instructions. What we have said overrules appellant's assertion that there was no sufficient evidence to invoke the habitual criminal law, which appears, from its reiteration, to be appellant's chief complaint. Section 4125, R.S. 1939, Mo.R.S.A., requires the motions for new trial to "set forth in detail and with particularity * * * the specific grounds or causes therefor." Appellant's assertions that...

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28 cases
  • State v. White
    • United States
    • Missouri Court of Appeals
    • 18 Abril 1958
    ...11); State v. Butler, Mo.App., 309 S.W.2d 155, 159(5). Consult also State v. McBrayer, Mo., 269 S.W.2d 756, 760(4); State v. Breeden, Mo., 180 S.W.2d 684, 687(13); State v. Woolsey, Mo., 33 S.W.2d 955, It is true that, where a prosecuting attorney deliberately transgresses the bounds of pro......
  • State v. Cobb
    • United States
    • Missouri Supreme Court
    • 13 Junio 1949
    ... ... or to the failure to instruct on defendant's alleged ... alibi. The assignment of error in the motion for a new trial ... is too general and indefinite to present any criticism of the ... court's action for review. State v. Sapp, 356 ... Mo. 705, 203 S.W.2d 425, 432 (20); State v. Breeden (Mo ... Sup.), 180 S.W.2d 684, 687(9) ...          Appellant ... further contends that the court erred in failing to instruct ... on all the law of the case, including on the good character ... of defendant. Defendant offered a number of witnesses whose ... testimony tended to ... ...
  • State v. Miller
    • United States
    • Missouri Supreme Court
    • 13 Junio 1949
    ...586, 306 U.S. 668, 83 L.Ed. 1063; State v. Skibiski, 245 Mo. 459, 150 S.W. 1038; State v. Meadows, 330 Mo. 1020, 51 S.W.2d 1033; State v. Breeden, 180 S.W.2d 684. (5) court did not commit error in giving to the jury Instruction B. State v. Shout, 236 Mo. 360, 172 S.W. 607; State v. Cohen, 1......
  • State v. Shilkett
    • United States
    • Missouri Supreme Court
    • 13 Octubre 1947
    ... ... request, a good instruction on accidental homicide. The ... motion for a new trial contains no such assignment and the ... error, if any, may not be considered. State v ... Shipman, 354 Mo. 265, 189 S.W.2d 273, 276; State v ... Breeden (Mo. Sup.), 180 S.W.2d 684, 687 ...          Appellant ... next contends that the indictment charged an intentional ... killing, towit, that defendant, "feloniously and ... willfully, did make an assault", and that Instruction 4, ... authorizing a conviction for an unintentional ... ...
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