State v. Christup

• Decision Date: 03 September 1935
• Citation: 85 S.W.2d 1024,337 Mo. 776
• Parties: The State v. George Christup, alias Henry Cook, Appellant
• Court: Missouri Supreme Court

85 S.W.2d 1024

337 Mo. 776

The State v. George Christup, alias Henry Cook, Appellant

Supreme Court of Missouri

September 3, 1935

Appeal from Circuit Court of City of St. Louis; Hon. Fred J Hoffmeister, Judge.

Reversed and remanded.

Rubin L. Schlafman for appellant.

(1) Appellant objected to admission of State's Exhibit H and I. Objection overruled and exception noted. State v Breese, 33 S.W.2d 919; State v. Schneider, 29 S.W.2d 698; State v. Dalton, 23 S.W.2d 1; State v. Austin, 113 Mo. 538, 21 S.W. 31; State v Manicke, 139 Mo. 545, 41 S.W. 223; Sec. 4461, R. S. 1929. If any person convicted of any offense punishable by imprisonment in the penitentiary, or of any attempt to commit an offense which if perpetrated would be punishable by imprisonment in the penitentiary, shall be discharged, either upon pardon or upon compliance with the sentence, and shall subsequently be convicted of any offense committed after such pardon or discharge, he shall be punished as follows: First: if such subsequent offense be such that upon a first conviction, the offender would be punishable by imprisonment in the penitentiary for life, or for a term which, under the provisions of this law might extend to imprisonment for life, then such person shall be punished by imprisonment for life. (2) Criminal statutes cannot be enlarged by interpretation to include persons not specifically embraced: State v. Lloyd, 7 S.W.2d 344; State v. Bartley, 304 Mo. 58, 263 S.W. 95. (3) The court erred in admitting in evidence the confession of appellant. Appellant duly noted his exception to the ruling of the court. This confession was not voluntary, and was induced through threats and long hours of continuous harassment and questioning. State v. Powell, 258 Mo. 251; State v. Powell, 266 Mo. 100; State v. Patterson, 73 Mo. 695; State v. Jones, 54 Mo. 478.

Roy McKittrick, Attorney General, and Wm. W. Barnes, Assistant Attorney General, for respondent.

(1) The court properly refused appellant's instruction in the nature of a demurrer at the close of all the evidence. State v. Boesel, 64 S.W.2d 246; State v. Harris, 324 Mo. 232; State v. Henke, 313 Mo. 626; State v. Schaeffer, 273 S.W. 249; State v. Turner, 274 S.W. 36. (2) Instruction I was proper in view of the evidence. State v. Asher, 246 S.W. 914; State v. Mardino, 268 S.W. 51; State v. Meadows, 51 S.W.2d 1037. (3) There is no merit in appellant's challenge of the information. State v. Calvert, 209 Mo. 286; State v. Long, 22 S.W.2d 811; State v. Roberts, 311 Mo. 527. (4) Assignments 7, 8, and 9 go to the information as amended. State v. Schneider, 29 S.W. 700. (5) General assignments of error in the following paragraphs of the motion for new trial are insufficient to preserve anything for review here. State v. Miller, 300 S.W. 776; State v. Moore, 36 S.W.2d 929; State v. Parsons, 285 S.W. 413; State v. Powell, 318 Mo. 782; State v. Sappington, 319 Mo. 6; State v. Stevens, 325 Mo. 441. (6) The court's action in allowing the information to be amended to conform to the proof was proper. Sec. 3562, R. S. 1929; State v. Fike, 324 Mo. 808; State v. Hedgpeth, 311 Mo. 458; State v. Tracy, 294 Mo. 389. (7) The admission of the purported confession in evidence was proper for the consideration of the jury. State v. Hoskins, 327 Mo. 317; State v. Miller, 56 S.W.2d 95; State v. Sinovich, 46 S.W.2d 881. (8) The corpus delicti was conclusively proved.

OPINION

Leedy, J.

Under a verified information filed by the circuit attorney of the city of St. Louis, George Christup, alias Henry Cook was charged with robbery in the first degree by means of a dangerous and deadly weapon. His previous conviction of an aggravated robbery was alleged as a basis for additional punishment under what is commonly known as the Habitual Criminal Act. Upon a trial, he was convicted, and his punishment fixed at confinement in the penitentiary during the remainder of his natural life. After an unavailing motion for new trial, he appeals from the judgment rendered on the verdict.

In view of the disposition we find it necessary to make of the case, a skeletonized statement of the facts will suffice. The evidence on the part of the State tended to show that the Sturgis drug store is located at Tower Grove and Lafayette streets in the city of St. Louis, and that on the evening of December 27, 1932, at about seven o'clock, appellant entered said store and committed the holdup in question. Armed with, and flourishing an automatic revolver, he directed that the money in the cash registers be taken therefrom and delivered to him, which was done. About one hundred dollars ($ 100) was taken. The several persons in the store at the time included employees and customers, who were forced by appellant to line up behind the candy and cigar cases while the robbery was perpetrated. Appellant was positively identified. It was developed that the owner and employees had known him a considerable period of time, he having been a customer of the store. At the time of the robbery appellant's cheeks and nose were rouged and powdered, and his eyebrows penciled. When arrested the next day, rouge and an eyebrow pencil were found on his person. A written confession, made to the police officers, was introduced in evidence, by which appellant admitted his guilt. The defense was an alibi, in support of which certain testimony was offered, and which, if believed, was sufficient to establish the fact of his presence elsewhere at the time in question.

Appellant for a reversal of his conviction relies on the following propositions: (1) That he is not subject to prosecution as an habitual criminal; (2) That his purported extrajudicial confession was not voluntarily made, and the court, therefore, erred in admitting it; (3) That the court erred in giving Instruction No. 1.

I. The principal question in the case is whether it is within the Habitual Criminal Act. [Secs. 4461, 4462, R. S. 1929; 4 Mo. Stat. Ann., secs. 4461, 4462, pp. 3063-3066.] By the first section of the act just referred to, it is provided, "If any person convicted of any offense punishable by imprisonment in the penitentiary, or of any attempt to commit an offense which, if perpetrated, would be punishable by imprisonment in the penitentiary, shall be discharged, either upon pardon or upon compliance with the sentence, and shall subsequently be convicted of any offense committed after such pardon or discharge, he shall be punished as follows," etc. By the latter section, 4462, a conviction in another state, territory or foreign country for an offense which, if committed in this State, would be punishable by the laws of this State by imprisonment in the penitentiary, subjects the offender, upon subsequent conviction in this State, to punishment "in the same manner and to the same extent as if such first conviction had taken place in a court in this State."

The averments of the information (as amended), insofar as they relate to appellant's former conviction, are as follows: "That George Christup alias Henry Cook alias Perry I. Berry on the 12th day of June in the year of our Lord, one thousand nine hundred and thirty-one in the West Side Court of Denver, Colorado, was duly convicted of the offense of Aggravated Robbery and in accordance with said conviction was duly sentenced by said Court to an imprisonment in the penitentiary at Canon City of the said State of Colorado for the term of 4 to 6 years, and was duly imprisoned in said penitentiary of the State of Colorado in accordance with said sentence, and that the said George Christup alias, etc., escaped from said penitentiary of the State of Colorado after having served part of said sentence, etc."

On the trial, appellant admitted his former conviction, and escaped from the Colorado penitentiary, as above alleged. He contends the provisions of the Habitual Criminal Statute cannot be invoked against him, because he had never been discharged either upon pardon or upon compliance with his sentence. Such was the holding in State v. Austin, 113 Mo. 538, 21 S.W. 31, wherein the court considered the sufficiency of an indictment under what is now Section 4461 (as amended in only one respect, not here necessary to notice). It was there held: "The statute by its terms only subjects to this...