State v. Brinkley

Decision Date04 September 1945
Docket Number39484
Citation189 S.W.2d 314,354 Mo. 337
PartiesState v. Andrew Brinkley, Appellant
CourtMissouri Supreme Court

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from Circuit Court of City of St. Louis; Hon. James F Nangle, Judge.

Reversed and remanded.

Ivan H. Light for appellant.

(1) The Habitual Criminal Act does not include larceny from person amount less than $ 30 as a prior offense, because that offense is petit larceny. Petit larceny, as a prior offense invoking the act, was expressly stricken from it by the Legislature in 1895. R.S. 1835, Chap. IX, Sec. 7; Laws 1895 p. 153; Secs. 4456, 4469, 4854, 4855; R.S. 1939 State v Donnell, 184 S.W.2d 1008. (2) The act does not include the alleged federal offense of "forgery (money orders)", as a prior offense under the act, whatever that phrase means, because if it means anything, it is a misdemeanor. The act may not be invoked upon misdemeanor as the prior offense. However, the offense alleged was not proved. What was proved was a prior conviction for "passing, uttering and publishing" a money order bearing a forged endorsement. Of course that was a fatal variance, but even so, the offense proved was a misdemeanor and not within the act. United States v. Lancaster, 26 Fed. Cas. No. 15,556, p. 856; United States v. Baugh, 1 F. 784; Considine v. United States, 112 F. 342, affirmed 184 U.S. 699. (3) The charge of prior conviction for "forgery (money orders)" states a plural offense, unintelligible and unknown to our law, and there was no basis for the court to find such offense would have been punishable by imprisonment in our penitentiary, if committed here. State v. Krebs, 336 Mo. 576, 80 S.W.2d 196. (4) In the absence of sufficient facts to show the nature of a prior conviction, neither the court nor the jury may find that the accused has suffered a prior conviction for a felony or a penitentiary offense. People v. Chadwick, 4 Cal.App. 63, 87 P. 384; Matter of Cedar, 240 A.D. 182, 269 N.Y.S. 733, affirmed, 265 N.Y. 620, 193 N.E. 414. (5) If the amount involved determines whether the former offense be felony or misdemeanor, proof of amount involved must always be made. No proof was made in this case as to the amount involved in the prior Federal offense. Similarly, where it is a question of the nature of the foreign or Federal offense as a felony, the details of the former offense must be alleged and proved, so that the court may judge of its nature. That was not done in the case at bar. Matter of Cedar, supra; People v. Hayes, 3 Cal.App. (2d) 59, 39 P.2d 213; People v. Morrison, 26 Cal.App. (2d) 616, 80 P.2d 94; People v. Brophy, 246 A.D. 682, 284 N.Y.S. 645; People v. Voelker, 220 A.D. 528, 221 N.Y.S. 760; People v. Knox, 223 A.D. 123, 227 N.Y.S. 417; State v. Scott, 24 Vt. 263, 267; People v. Craig, 195 N.Y. 190, 88 N.E. 38. (6) There was no proof that either the Atlanta Federal "penitentiary" or the Springfield Medical Center were "penitentiaries" in the sense that the word is used in our Habitual Criminal Act. What is called a "Penitentiary" in one jurisdiction at one time is not necessarily so considered in another jurisdiction at some other time. Our act was passed in 1835. (7) The State's own documentary evidence showed on its face that the discharge under the prior Missouri conviction was after not before the date of the alleged perjury. Therefore, the act has no application, since it applies only to offenses committed after discharge on a prior conviction. R.S. 1939, sec. 4854; State v. Sumpter, 335 Mo. 620, 73 S.W.2d 760; State v. Schneider, 325 Mo. l.c. 492, 29 S.W.2d 700. (8) The information charged defendant had been previously convicted in the Federal Court of "forgery (money orders)", but the proof varied materially. It showed that an unidentified Andrew Brinkley had been convicted in 1936 of an altogether different offense, namely, of "passing, uttering and publishing" one money order (not several as alleged), bearing a forged endorsement. (9) There was neither allegation nor proof that the unidentified Andrew Brinkley was ever discharged from the institution to which sentenced on either the former Federal or State sentence. Both the fact or conviction and discharge prior to the commission of the offense in question must be alleged and proved. A discharge means a discharge according to law from the institution to which the accused was sentenced to serve his time, not a discharge from some other institution into which the accused got in some unexplained fashion. Neither an escape, nor a leaving the legal place of confinement without authority of law, which must be alleged and proved, constitutes a discharge under our act. State v. Schneider, 325 Mo. 486, 29 S.W.2d 698; State v. Donnell, 184 S.W.2d 1008; State v. Christup, 337 Mo. 776, 85 S.W.2d 1024; State v. Bailey, 169 S.W.2d 380. (10) There was neither allegation nor proof that Andrew Brinkley was discharged from his prior State sentence upon "compliance with the sentence or pardon", as required by the act. The allegations and proof were that he was discharged upon "parole", which is not a final discharge within the meaning of the act. State v. Heflin, 338 Mo. 236, 89 S.W.2d 938; State v. Sumpter, 335 Mo. 620, 73 S.W.2d 760; State v. Christup, 337 Mo. 776, 85 S.W.2d 1024; State v. Jennings, 278 Mo. 544, 213 S.W. 421. (11) Beyond mere identity of name, defendant was not identified as the person previously convicted or discharged on either the State or Federal sentence. Proof of identity beyond mere identity of name is positively required. State v. Kimbrough, 350 Mo. 609, 166 S.W.2d 1077; State v. Taylor, 323 Mo. 15, 18 S.W.2d 474; State v. Garrish, 29 S.W.2d 71; Graham v. West Virginia, 224 U.S. 620, 56 L.Ed. 917; Kubik v. United States, 53 F.2d 763; Thompson v. State, 66 Fla. 206, 63 So. 423; Morgan v. Commonwealth, 170 Ky. 400, 186 S.W. 132; Hall v. State, 121 Md. 577, 89 A. 111; People v. Chadwick, 4 Cal.App. 63, 87 P. 384; State v. Smith, 129 Iowa 709, 106 N.W. 187, 4 L.R.A. (N.S.) 539; People v. Knox, 223 A.D. 123, 227 N.Y.S. 417; Regina v. Shuttleworth, 3 Car. C.K. 375; Regina v. Levy, 8 Cox Crim. Cas. 73; 24 C.J. 1165; Abbott, Criminal Trial Practice (4 Ed.), sec. 798; Underhill on Evidence (2 Ed.), p. 828. (12) There was no proof that Andrew Brinkley was over sixteen years of age at the time of the prior convictions. Therefore, there was no proof that he committed an offense for which he could have been sent to the penitentiary in Missouri. The act applies only to offenses punishable by imprisonment in the penitentiary. R.S. 1939, secs. 8998, 9673; Ex parte Gray, 77 Mo. 160; Ex parte Toney, 11 Mo. 661; State ex rel. Clarke v. Wilder, 197 Mo. 27, 94 S.W. 499. (13) The form of verdict submitted to the jury was erroneous, misleading and prejudicial to defendant, and the verdict of the jury was vague and insufficient, and did not contain the findings required under the act. The form of verdict submitted to the jury by the court was suggestive and an invitation to the jury to find the defendant guilty of two prior convictions of felonies without even telling the jury what a felony was. The verdict of the jury failed to find, among other things, that the prior convictions found were those alleged in the information or what they were at all, and failed to find that defendant had been discharged from imprisonment on either prior sentence. Under our act it is necessary to allege and prove both a prior conviction and discharge, and, of course, what must be alleged and proved must be found by the jury. State v. Murphy, 345 Mo. 358, 133 S.W.2d 398; State v. Heflin, 338 Mo. 236, 89 S.W.2d 938; State v. Randolph, 39 S.W.2d 769. (14) The court erred in its instructions to the jury in referring to "two prior convictions of a felony", and in failing to define the word "felony." Considine v. U.S., 112 F.2d 342, affirmed 184 U.S. 699. (15) The court failed to take any action whatever to protect defendant when the assistant circuit attorney, without any justification whatever in the record, referred to defendant, in his summing up, as a "consistent criminal", and referred to alleged prior convictions of defendant when none had been alleged or proved according to law, and all this was done after defendant's counsel had challenged the assistant circuit attorney during his opening statement upon the same subject and had cited to him the case of State v. Mosier. State v. Mosier, 102 S.W.2d 620; State v. Jackson, 336 Mo. 1069, 83 S.W.2d 87. (16) The information under which defendant was tried at the preliminary hearing contained no allegations of prior convictions, and no evidence on that subject was offered at that hearing. Accordingly, the motion to strike the circuit court information on that ground, which was supported by proof of these matters, should have been sustained. Cf. State v. Long, 324 Mo. 205, 22 S.W.2d 809. (17) Exhibit 5, the copy of the Federal Medical Center records, was inadmissible in evidence, because it was not properly authenticated under either State or Federal statute governing authentication. 28 U.S. Code, sec. 688; R.S. 1939, sec. 1825; State v. Hendrix, 331 Mo. 658, 56 S.W.2d 76; State v. Pagels, 92 Mo.App. 300, 4 S.W. 931; State v. Warren, 317 Mo. 843, 297 S.W. 397; State v. Tarwater, 293 Mo. 273, 239 S.W. 480. (18) In perjury, defendant's testimony must be proven false, either by two or more credible witnesses, or by one such witness plus proof of circumstances strongly corroborating such witness. State v. Heed, 57 Mo. 252; State v. Hunter, 181 Mo. 316, 80 S.W. 955; State v. Hardiman, 277 Mo. 229, 209 S.W. 879; State v. McGee, 341 Mo. 151, 106 S.W.2d 480; State v. Kaempfer, 342 Mo. 1007, 119 S.W.2d 294. (19) In perjury, admissions of the defendant may not be availed of to...

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