State v. Charles, 43846

• Decision Date: 12 April 1954
• Docket Number: No. 43846,No. 2,43846,2
• Citation: 268 S.W.2d 830
• Parties: STATE v. CHARLES
• Court: Missouri Supreme Court

Page 830

268 S.W.2d 830

STATE v. CHARLES.

No. 43846.

Supreme Court of Missouri, Division No. 2.

April 12, 1954.

Motion for Rehearing or for Transfer to Court en Banc Denied

June 14, 1954.

Morris A. Shenker, Sidney M. Glazer, St. Louis, for appellant.

John M. Dalton, Atty. Gen., W. Don Kennedy, Asst. Atty. Gen., for respondent.

ELLISON, Judge.

The appellant Walter Charles was charged by an amended information filed in the circuit court of the City of St. Louis on February 2, 1953, with carrying concealed on or about his person a loaded automatic pistol on August 11, 1952, in violation of Section 546.610 RSMo 1949, V.A.M.S. The jury found him guilty, and further found he had formerly been convicted of a felony and discharged, and assessed his punishment at imprisonment in the State Penitentiary for the term of two years, which was the maximum under the statute. The charge and proof brought the case within the Habitual Criminal Act, Section 556.280 RSMo 1949, V.A.M.S., because of prior convictions.

The information charged three prior convictions. The first was on October 15, 1948, in St. Louis, for carrying a concealed weapon in violation of Section 564.610, supra. In that case the sentence was 90 days in the city workhouse. The information stated he was duly sentenced, imprisoned and discharged after and upon lawful compliance with the sentence--which was on or about January 15, 1949.

The second prior conviction alleged was on December 20, 1949, for assault with intent to rob with malice, a felony in violation of Section 559.180 RSMo 1949, V.A.M.S. The information stated that in accordance with said conviction he was duly sentenced by the circuit court to imprisonment in the city workhouse for a term of 9 months, and was duly imprisoned in accordance with that sentence. But it failed to allege he was duly discharged on that conviction in accordance with that sentence.

However, the third prior conviction alleged in the information was on the same date as the second, December 20, 1949, for carrying concealed weapons, for which he was duly sentenced to imprisonment in the city workhouse in St. Louis, likewise for 9 months. But the information alleged said latter two convictions and sentences were imposed to run concurrently, and that they did so run and were served concurrently, and ended at the same time [on or about September 20, 1950]. The information alleged the appellant was duly discharged upon lawful compliance with both of said prior sentences. This was nearly a year and eleven months before the instant crime of carrying concealed weapons was committed on August 11, 1952, and still longer before the information charging that crime under the Habitual Criminal Act was filed on February 2, 1953.

The verdict of the jury in the instant case on April 30, 1953, found 'the defendant [appellant] guilty of carrying concealed upon and about his person a dangerous and deadly weapon, to-wit: a pistol. We further find the defendant has been formerly convicted of 'a felony' and assess his punishment at imprisonment in the State Penitentiary for the term of two (2) years'--the maximum under the applicable statute, Section 564.610 RSMo 1949, V.A.M.S.

Appellant's first assignment of error in this case is that the jury's verdict finding him guilty of carrying a concealed weapon and that he had been 'formerly convicted of a felony' was defective and insufficient to support a conviction under the terms of Section 556.280 RSMo 1949 V.A.M.S. [Habitual Criminal Act], for the reason that the verdict does not refer with definiteness and certainty to any of the three former convictions alleged in the information and only one prior conviction was properly charged since the information failed to allege that the felony on trial was committed after the discharge from two of the felonies alleged.

Appellant's point is that the jury's verdict in the instant case found he had formerly been convicted of a felony whereas the evidence showed he had been convicted of three prior felonies [two of them concurrent], and it was impossible to tell which one of these the jury referred to. We think the record properly bears the construction that the jury referred generically to all of these prior convictions and service of punishment, and found he had served that punishment and had been discharged on all of them before the instant prosecution started. On this point appellant cites State v. Humphrey, 357 Mo. 824, 823(3), 210 S.W.2d 1002, 1005; State v. Kelly, Mo.Sup.Div. 1, 258 S.W.2d 611, 612; State v. Harrison, 359 Mo. 793, 794-795(1), 223 S.W.2d 476, 478(1).

In the Humphrey case it appears the defendant was prosecuted for two crimes in one case: for burglary, for which the jury assessed his punishment at two years; and for grand larceny, for which the punishment was three years. In addition the jury found he had been convicted of three prior felonies under the Habitual Criminal Act and assessed an additional punishment of five years. The trial court sentenced him to a total punishment of ten years. This court held the aggravated total punishment should have been 15 years.

In this case, unlike the Humphrey case, there were not two combined separate prosecutions. There was only a single prosecution for carrying a concealed weapon, the punishment for which could and would be aggravated under the Habitual Criminal Act by any and all of the three prior convictions. That course was followed in State v. Hagerman, 361 Mo. 994, 999(5), 238 S.W.2d 327, 330(8), and State v. Ortell, Mo.Sup., 50 S.W.2d 1037. It was there held that specific findings as to the several prior convictions were proper but not required. See also State v. Kelly, Mo.Sup.Div. 1, 258 S.W.2d 611, 612(5).

Appellant's second assignment complains that the trial court 'erred in giving to the jury instruction No. 1, the verdict directing instruction, for the following reason: (a) This instruction erroneously allowed the jury to find the defendant guilty if they found that on August 11, 1952, or at any time within three years next before the filing of the amended Information he carried concealed about his person a pistol, for the reason that two of the prior convictions alleged were for carrying concealed weapons and the evidence showed one of these offenses may have occurred within three years next before the filing of the Information, and thereby the jury was permitted to find the defendant guilty of the felony on trial if they found he had been guilty of a prior conviction of a felony.'

This assignment is not clear and in our opinion it is not well founded. It is true that instruction No. 1 authorized the jury to convict the appellant of carrying concealed weapons not only if they found he did so on August 11, 1952, but also if he had committed the crime at any time within three years next before the filing of the amended information, which was on February 2, 1953. The jury's verdict on April 30, 1953 found him guilty of carrying a dangerous and deadly weapon, a pistol, and that he had formerly been convicted of a felony but did not say what felony or when it was committed. His last two previous convictions of any felony [assault with intent to rob and also carrying concealed weapons] had been on December 20, 1949, and that was not within three years before the filing of the amended information on February 2, 1953, but 3 years, 1 month and 12 days theretofore.

Appellant's brief says one of the previous offenses of carrying concealed weapons may have occurred at another time in 1949 within three years next before the filing of the information in this case on February 2, 1953, but there was no proof of it. In addition to that the State's instruction No. 2 submitted the case solely and exclusively on the theory that appellant carried the pistol on August 11, 1952, as alleged, and that proof of the prior convictions of felonies should be considered by them only as bearing on the amount of punishment they should impose on the appellant in this case if they found him guilty.

Appellant's brief next contends the State's verdict finding instruction No. 1 was erroneous because it allowed the jury to convict the appellant without requiring a finding that his acts were done 'knowingly, wilfully and intentionally.' What the instruction required was that appellant 'did unlawfully and feloniously carry concealed about his person a pistol loaded with gunpowder and metal bullets, and that said pistol was a dangerous and deadly weapon' [described in the amended information as a .32 caliber automatic pistol of designated make]. This was sufficient.

On that point appellant cites cases holding there must be a conscious purpose to conceal the weapon. In State v. Gibson, 322 Mo. 369, 374, 15 S.W.2d 760, 761, the defendant was carrying a revolver in view beside him on the seat of his automobile. It was a question of fact as to whether he intended to conceal it, and the decision held an instruction omitting that element was erroneous. In the instant case instruction No. 1 expressly required a finding that the appellant did unlawfully and feloniously carry the pistol concealed on or about his person. There was no evidence that it was in view. We think there was no error in the instruction.

Appellant next assigns error in the giving of the State's instruction No. 2, on the theory that it omitted an essential element of an offense under the Habitual...