State v. Brown

• Decision Date: 02 May 1893
• Parties: STATE v. BROWN.
• Court: Missouri Supreme Court

22 S.W. 367

115 Mo. 409

STATE v. BROWN.

Supreme Court of Missouri, Division No. 2.

May 2, 1893.

CRIMINAL LAW — CONVICTION OF SECOND OFFENSE — EVIDENCE — INSTRUCTIONS.

1. A request by the accused for an instruction that the indictment is a mere formal accusation against him, and no evidence of guilt, and that no juror should be influenced by the fact that it has been found, should be granted.

2. Rev. St. 1889, § 3959, provides for the punishment of any person convicted of petit larceny, upon a subsequent conviction thereof, by imprisonment in the penitentiary. Held, that the first conviction can be proved only by the judgment so reciting, and not by a record of a justice, reciting the arrest and conviction of defendant, without naming the offense, nor by the commitment, inferentially showing that the offense was petit larceny.

Appeal from circuit court, Audrain county; E. M. Hughes, Judge.

Press Brown was convicted of larceny, and he appeals. Reversed.

The other facts fully appear in the following statement by SHERWOOD, J.:

The defendant was charged with having committed petit larceny the second time, after a prior conviction. The indictment, omitting caption, is the following: "The grand jurors for the state of Missouri, summoned from the body of the county of Audrain, impaneled, charged, and sworn to inquire within and for said county and state, upon their oaths present and charge that one Press Brown, on the 14th day of June, 1890, before D. H. Harris, a justice of the peace for Audrain county, Missouri, was charged and convicted of the crime of petit larceny, and sentenced to 30 days' imprisonment in the county jail; that he, the said Press Brown, complied with the said sentence, and was discharged, and that thereafter, on or about the 25th day of June, A. D. 1892, at the county and state aforesaid, the said Press Brown did then and there, unlawfully and feloniously, one single barrel shotgun of the value of five dollars, the property of Lamartine Lockland, steal, take, and carry away, against the peace and dignity of the state. F. R. Jesse, Prosecuting Attorney." Tried under this indictment, the defendant was found guilty, his punishment assessed at two years' imprisonment in the penitentiary, and he appeals to this court. When the cause came on for trial the record recites that the state, to sustain the issues on its part, examined as a witness D. H. Harris, a justice of the peace within and for Audrain county, Mo., who testified as follows: "I know the defendant, Press Brown. He was tried before me on the 14th of June, 1890. This is my docket record, and it contains a full and complete record of the proceedings had in the case of State of Missouri vs. Press Brown, who is the defendant in this case." The state, to prove a former conviction of the defendant before said D. H. Harris, J. P., introduced the following record of said D. H. Harris, J. P., in words and figures as follows, to wit: "In justice court, Salt River Tp. State of Missouri, county of Audrain. State of Missouri, Plaintiff, vs. Press Brown, Defndt. Before D. H. Harris, J. P. Warrant for Arrest. Charge, Stealing. Now, on this the 14th day of June, 1890, comes F. R. Jesse, prosecuting att'y for Audrain county, Mo., and upon his official oath files his information against the defendant, and asks that a state warrant be issued for the defendant, whereupon a state warrant was issued, and delivered to Const. W. P. Quissenberry, of Salt River Townp., June 14th, '90, who on the same day arrested and brought into court the defendant. The prosecuting attorney read to the defendant the charge. Defendant plead not guilty. The court, after hearing the testimony pro and con, rendered judgment against the defendant, and in favor of the state, and assessed his punishment at 30 days' imprisonment in the county jail. Commitment and the defendant delivered to Const. W. P. Quissenberry, of Salt River Tp., who took defendant to jail. D. H. Harris, J. P. Transcript and papers delivered to circuit clerk June 24th, 1890. D. H. H." To the introduction of which defendant objected, but the court overruled said objection, and permitted said record read to the jury, to which ruling and action of the court the defendant excepted, and saved his exceptions at the time. The state also introduced in evidence the following commitment, in words as follows, to wit: "(Commitment of J. P.) State of Missouri, county of Audrain — ss: The state of Missouri to the jailer of the county of Audrain, greeting: Whereas, complaint has been made before me, a justice of the peace for said county, upon oath of F. R. Jesse, Pros. Att'y, that one Press Brown, late of the county of Audrain, and state of Missouri, did on the 10th day of June, 1890, at the county of Audrain, in the state of Missouri, steal and take away one pair of pants, of the value of $4.00, the property of Wm. Galloway, against the peace and dignity of the state; and whereas, the said Press Brown was...