State v. Bursby

• Decision Date: 08 November 1965
• Docket Number: No. 51372,No. 1,51372,1
• Parties: STATE of Missouri, Respondent, v. Henry Edward BURSBY, and Harvey Bursby, Appellants
• Court: Missouri Supreme Court

Page 155

395 S.W.2d 155

STATE of Missouri, Respondent, v. Henry Edward BURSBY, and Harvey Bursby, Appellants.

No. 51372.

Supreme Court of Missouri, Division No. 1.

Nov. 8, 1965.

Norman H. Anderson, Atty. Gen., O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, for respondent.

Taken as submitted, by appellants.

HENLEY, Judge.

This is an appeal from an order of the Circuit Court of Dade County overruling, without a hearing, defendants' joint motion to vacate judgments and sentences imposed on them on September 16, 1963. Rules 27.26 and 28.03 (references to rules are to Supreme Court Rules and V.A.M.R.).

The transcript on appeal approved by the trial judge discloses that the defendants were charged jointly in one information in three counts as follows: Count 1, with burglary on August 21, 1963, of the Terry Town Store building owned by Lonus Speight and stealing therefrom certain goods, wares and merchandise owned by Speight; Count 2, with burglary on the same date of a tin grainery owned by Speight, located near the above-described store building, and stealing therefrom certain goods, wares and merchandise owned by Speight; Count 3, with stealing on the same date Speight's cement mixer valued at more than $50 and parked near the store building. On September 12, 1963, the date the information was filed, the defendants appeared in court without counsel and, on being informed by the court that they were charged with 'a felony', that they were entitled to a trial by jury and the appointment of counsel to represent them at the trial, Henry Bursby, speaking for himself and Harvey Bursby, indicated that they were guilty and would prefer to have sentence imposed as soon as possible so they could 'get to doing it.' With this, Harvey Bursby agreed. They unequivocally declined the appointment of counsel. After these admissions and waiver of right to counsel, the court read the information to defendants and, accepting their pleas of guilty, deferred sentencing until September 16. On the latter date defendants again appeared without counsel and, on recommendation of counsel for the state, the court sentenced each to imprisonment in the penitentiary for a term of four years on each of the three counts of the information, the sentences to run consecutively.

On the surface it would appear from defendants' rambling disordered six-page motion that their ground for vacating their sentences is that they were denied the benefit of counsel when they entered pleas of guilty. But that is not their complaint. The fruit of sense lying beneath this over-abundance of misleading words, reached almost intuitively by defendants, is that the court and counsel for the state knowingly and intentionally failed to protect their rights. Specifically: that the court countenanced and improperly accepted their plea of guilty to the charges of one information containing three counts, each count charging separate and distinct offenses for only one of which they legally could have been convicted and sentenced had they been tried under the information; that they, being illiterate, and uninformed except as to their right to counsel, waived the benefit of counsel and entered a plea of guilty to what they thought was one offense, not understanding that the consequences of their plea could or would be its acceptance as a plea of guilty to each of three separate cases for which the court could or would impose three sentences of four years each to run consecutively.

The offense of burglary charged in Count 1 and the separate offense of stealing in connection with such burglary properly may be joined in the same information in one count, or in separate counts, Rule 24.04, and on conviction of such burglary and stealing defendants 'shall be punished by imprisonment in the penitentiary, in addition to the punishment herein prescribed for burglary, not less than two nor exceeding five years.' Section 560.110, paragraph 1. (References to statutes are to RSMo 1959 and V.A.M.S.) The same is true as to the offenses charged in Count 2. But that is not to say that the offenses charged in Count 1 and those in Count 2 and the offense of stealing charged in Count 3 properly may be joined in one information, and defendants tried and convicted on more than one of the three counts.

The offenses of burglary, and stealing in connection with such burglary, although separate and distinct crimes, ¹ may be joined in one information, and an accused may be tried and convicted of both offenses in one trial only because the rule and statute authorize and permit such as an exception to the general rule; ² the general rule being that an accused may not be charged, tried ³ and convicted at the same time of two separate and distinct offenses. State v. Preslar, 316 Mo. 144, 290 S.W. 142 and cases there cited; State v. Terry, Mo., 325 S.W.2d 1, 4, and cases there cited.

The offenses charged in the three counts of this information, based on which judgments were entered sentencing defendants to the penitentiary, are separate, different and distinct felonies, although the occurrences were on the same date, in the same general area, and one may have followed immediately after the other. State v. Preslar, supra; State v. Thomas, supra.

In State v. Preslar, supra, the defendant was charged in one information in four counts with four sales of 'moonshine' whiskey and was convicted and sentenced on each. Before the opening statement was made by counsel for the state, counsel for defendant moved that the state be required to elect on which count the state would proceed to trial. The motion was overruled. On appeal to this court, the state contended that the point was not preserved for review because defendants' counsel not only failed to save an exception to the court's ruling, but thereafter agreed to the action of the court and thereby waived any right to require the state to elect. In reversing and remanding, this court said, at 290 S.W. 1. c. 143-144: '* * * In justice to all parties concerned, we think the matter should be disposed of as though counsel for appellant made no request of the court to require the prosecuting attorney to elect upon which of the four counts he would proceed, until the filing of the motion for a new trial, as aforesaid. On the other hand, the [trial] court ruled it was not required to order an election under the laws of this state. We hold that, under the rulings of this court, the question of election is not a mere matter of form, which may be waived, as claimed by the state, supra, but it involves a question of jurisdiction and power. This principle of law was announced with great clearness and force by Judge Gantt in the leading case of State v. Carragin, 210 Mo. loc. cit. 371, 109 S.W. 558, (16 L.R.A. [N.S.] 561) where he said: 'In instructing the jury that they might find the defendant guilty under both counts, and in refusing to require the prosecuting attorney to elect after all the evidence was in, the court committed reversible error. We know of no case under our practice in which an accused may be tried and convicted of two distinct felonies except in the case of burglary and larceny, which is expressly allowed by statute.'

'The law, as above written, is fully sustained by other decisions of this court, as follows: State v. Guye, 299 Mo. loc. cit. 366, 252 S.W. 955; State v. Link , 286 S.W. 12 et seq.

'We have no hesitation in holding that, on the record before us, the judgment of conviction in which defendant has been sentenced to the penitentiary for 8 years on four separate and distinct felonies, set out in four separate counts of the information, cannot stand the test of judicial criticism, under the laws of this state. We are of the opinion that it was the absolute duty of the trial court in this case, whether requested or not, to have directed the prosecuting attorney, before submitting the case to the jury, to elect on which of the four counts in the information he would proceed to trial and to strike out the remainder. In addition to foregoing, as a part of the state's case, whether requested or not, it was the imperative duty of the court to instruct the jury that they could not find the defendant guilty except on the single count submitted for their consideration. State v. Burrell, 298 Mo. loc. cit. 678, 679, 252 S.W. 709, and cases cited.'

In State v. Terry, Mo., 325 S.W.2d 1, 4, a more recent case, the defendant was charged in two counts of one information with (1) breaking and entering a dwelling with intent to commit the felony of rape and (2) forcible rape, two separate and distinct offenses. He was tried and convicted of both felonies at the same time, and sentenced to imprisonment for five years on each. The information was not attacked either prior to, during, or after trial, nor was there a motion to require the state to elect prior to submission. The court held that the joinder of these distinct felonies did not render the information bad as a matter of law and that any question as to the validity of the information because of the misjoinder was waived by failure to raise that question. The court was more particularly concerned with the conviction of two distinct felonies in the same trial. The conviction was affirmed, the rationale of the opinion being: '* * * inasmuch as there is no express prohibition against the conviction of a defendant of two distinct felonies at the same trial, and inasmuch as there appears to be no reason for the established rule in Missouri which should prevent a waiver of that rule, and inasmuch, as heretofore noted, an information or indictment in which are joined two distinct felonies is not bad as a matter of law, we are of the view that a defendant's failure to assign as error in his motion for new trial the action or inaction of the trial court which resulted in his conviction of two distinct felonies at the same trial, effects a waiver of his right to rely on the rule in question. ...