State v. Carson
| Decision Date | 13 February 1956 |
| Docket Number | No. 44853,No. 2,44853,2 |
| Citation | 286 S.W.2d 750 |
| Parties | STATE of Missouri, Respondent, v. Kaiser CARSON, Appellant |
| Court | Missouri Supreme Court |
Robert J. O'Hanlon, St. Louis, for appellant.
John M. Dalton, Atty. Gen., John S. Phillips, Asst. Atty. Gen., for respondent.
BARRETT, Commissioner.
Kaiser Carson has been found guilty of the burglary of the New Way Super Market at 1960 Goddfellow and of the larceny of merchandise of the wholesale value of $665.17. The jury also found the two prior felony convictions, alleged assault with intent to rob and burglary and larceny, and accordingly fixed his punishment at ten years' imprisonment for the burglary and five years' imprisonment for the larceny.
Four of the appellant's assignments of error in his motion for a new trial concern matters relating to his prior convictions and the habitual criminal act. In this connection it urged that the court erred in permitting the circuit attorney in the course of his voir dire examination to refer to the habitual criminal statute and to disclose the nature of the prior convictions and the sentences imposed for the reason that the references and information were inflammatory and prejudicial to the defendant's right to a fair trial. It is also urged that it was prejudicial error for the court to answer the jury's inquiry whether it was mandatory to impose the maximum sentence in the event the prior convictions were found and, finally, it is urged that the punishment inflicted was cruel and unusual.
In the trial of this case there was no admission by the defendant or agreement by his counsel as to the fact of the prior felony convictions and there was no preliminary effort to limit or restrict the use of the prior convictions to the instructions and finally to the infliction of the maximum penalty after the jury had found the appellant guilty of the principal offense. In this connection, compare the implications of State v. Davis, Mo., 251 S.W.2d 610. In the trial of this case the defendant, as was his right, stood upon his plea of not guilty, offered no evidence and made no agreements as to any fact. It has been pointed out that inflammatory prejudice inheres in the fact of a defendant's felony record and the employment of the habitual criminal act, State v. Spencer, 355 Mo. 65, 74, 195 S.W.2d 99, 104-105, but in the circumstances of this record it was necessary for the state to prove the prior convictions and it was necessary that the court properly instruct the jury upon their effect. In his voir dire examination the circuit attorney explained the function of the habitual cirminal act and told the jury, as the court did in its instructions, that they were to disregard the prior convictions until they came to a decision of his guilt or innocence as to the principal charge. In the circumstances the voir dire examination did not go 'beyond that prejudice which is inherent in a trial involving the 'habitual criminal issue'.' State v. Davis, 251 S.W.2d loc. cit. 615.
In the course of the state's opening argument reference was made to the defendant's prior convictions but the public defender then made no objection whatever to the particular argument. Subsequently defendant's counsel argued the fact and effect of the prior convictions; The argument was employed as the basis of a plea for sympathy, mercy, rehabilitation and acquittal of the principal charge. In its closing argument the state retaliated by again arguing the prior convictions and the court did not prejudicially err in permitting it. State v. Beasley, 353 Mo. 392, 182 S.W.2d 541; State v. Lynn, Mo., 23 S.W.2d 139.
Also in connection with this subject, the jury, in the course of its deliberations, sent this communication, signed by the forelady, to the judge: 'We found the defendant guilty of both charges and of prior convictions, is it mandatory to impose the maximum sentence?' The court sent the following reply by the sheriff: After the court's reply had been returned to the jury defense counsel objected and gave as his reason, 'I feel that a reply should be generally that they refer to the instructions of the Court not any specifically named instruction or reiterating anything set up in any of the instructions.' The court said, The trial court's observation may be a sufficient answer to the complaint now made. But if it is not, instruction six was the conventional two-page instruction concerning the purpose and effect of the former convictions and concluded by informing the jury that if they found the defendant guilty of the principal offense and thereafter found the prior convictions that it was their duty to assess the maximum punishment prescribed for burglary and larceny. There was no impropriety in the jury's requesting further instruction, State v. Raven, 115 Mo. 419, 22 S.W. 376, and the jury having previously found the appellant guilty of the burglary and the larceny and of the prior convictions, as indicated by their communication, there was no alternative under the law than to inflict the maximum punishment and in the circumstances it was not prejudicial error for the court to so inform the jury. State v. O'Brien, Mo., 249 S.W.2d 433. Since no other penalty was possible under the law the sentence imposed was not so excessive as to constitute cruel and unusual punishment. State v. O'Brien, supra.
The first five and the twenty-second of the public defendant's assignments of error that the verdict and judgment are against the greater weight of the evidence, against 'the concrete and substantial evidence,' that the court erred in overruling objections of defendant to testimony offered by the state and that the court erred, without specification of reasons, in not sustaining defendant's motions to dismiss at the close of the state's evidence and at the close of all the evidence are so lacking in detail and particularity, V.A.M.S. Sec. 547.030; Sup.Ct.Rule 27,20, 42 V.A.M.S., as to not present any reviewable question. State v. Rohman, Mo., 261 S.W.2d 69; State v. Wilson, Mo., 248 S.W.2d 857; State v. Montgomery, Mo., 223 S.W.2d 463. The twelve other assignments of error are concerned with the witnesses, the admission of evidence and the argument of counsel and require a brief resume of the facts.
Shortly after eight o'clock on Sunday morning, April 11, 1954, the police received a telephone call to investigate an open door at 1960 Goodfellow. Officer Conley responded to the report and found the rear door of the New Way Super Market pried from its fastenings and leaning against the outside wall. Officers O'Connell and Bradley went to 1318a North Sarah, 'the landlady' admitted them, and they went to the room of Miss Watkins with whom it was said the defendant had been living. On the floor in Miss Watkins' room there was a pile of merchandise, for the most part meat. After arresting Miss Watkins the police waited in the building and in about an hour the defendant Carson appeared and the police arrested him in the hallway as he was about to enter Miss Watkins' room. He immediately said, 'I am not going to take the rap for all of it.' According to the police, Carson told them that he and William Cleveland Ivory had pried the door from the market, removed and divided the merchandise. The Gitel brothers, the owners of the store, identified the merchandise found in the room as a part of the missing stock of groceries and testified that the wholesale value of all the missing merchandise was $665.17. The store owners as well as the police officers testified that the appellant admitted that he and Ivory had burglarized the store, removed the merchandise and divided it.
After the empanelling of the jury the state was given leave to endorse Officer Conley's name on the information as a witness. Defense counsel then claimed surprise and objected to the endorsement. It is claimed in the motion for a new trial that the court erred in permitting the endorsement for the reason that it deprived the defendant 'of his constitutional right to be notified of the witnesses who were to appear against him' and, as a result, that he did not have a fair trial. It was Officer Conley who investigated the report of the open door and as far as the department was concerned officially discovered the burglary. While there was a claim of surprise and an objection when Officer Conley's name was endorsed as a witness, there was no request for a continuance and there was no objection whatever when the officer was offered as a witness and testified. There...
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