State v. Cody

• Decision Date: 14 July 1975
• Docket Number: No. 58753,58753
• Citation: 525 S.W.2d 333
• Parties: STATE of Missouri, Respondent, v. James CODY, Appellant.
• Court: Missouri Supreme Court

Page 333

525 S.W.2d 333

STATE of Missouri, Respondent, v. James CODY, Appellant.

No. 58753.

Supreme Court of Missouri, En Banc.

July 14, 1975.

John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.

Joseph Langworthy, James Cody, Pacific, Mo., for appellant.

SEILER, Judge.

Appellant was charged in a two count information with stealing a truck by bypassing the ignition, and stealing $5,000 worth of stainless steel which appellant had loaded onto the truck. Both the truck and the steel were taken at the same time and place from the premises of Lyon Sheet Metal Works, Inc., the lawful owner of the stolen property. Appellant moved for consolidation of the two counts on the ground that they constituted only one offense. The trial court overruled the motion and after the state indicated that it was prepared to prove the above-stated facts surrounding the stealing, appellant pleaded guilty to both counts. The court denied defense counsel's requests for a presentence investigation and consideration for probation, and sentenced appellant to two years on each count, the sentences to run concurrently.

Appellant raises two points for our consideration: first, that the trial court erred in overruling his motion for consolidation, in that the convictions and sentences on two counts where only one offense was indicated violated his right against being put twice in jeopardy for the same crime. Second, appellant contends that the trial court erred in refusing to permit appellant to make a formal application for probation, and by refusing to grant probation.

We shall examine appellant's second contention first. Appellant admits that he enjoys no right to receive probation, but maintains that he should have been given consideration for probation. Before sentence and judgment were pronounced, the trial court offered appellant allocution, at which time the following occurred.

'Mr. Langworthy (defense counsel): I'd like to ask for a presentence investigation for consideration of probation and parole on this count.

'The Court: Mr. Langworthy, you had, of course, prior to going on the record, indicated that you would request that. The Court is considering it, and has considered it, and in view of the great amount of property that was stolen, we are going to deny your request for a pre-sentence investigation and for consideration of parole in this case.'

Appellant contends that the court's decision to deny probation was an arbitrary and capricious exercise of the court's power, made without consideration of relevant factors, such as appellant's age (eighteen) and the fact that he was a first offender. Appellant urges this court to adopt 'at least a minimum, prospective rule that a first offender, convicted of a non-heinous crime, is entitled to realistic consideration for probation if he requests it.'

Section 549.071, RSMo.1969, V.A.M.S., provides that 'When any person of previous good character is convicted of any crime . . .', the trial court, '. . . if satisfied that the defendant, if permitted to go at large, would not again violate the law, may in its discretion . . . place the defendant on probation . . .' The granting or withholding of probation is discretionary with the trial judge, McCulley v. State, 486 S.W.2d 419, 422--3 (Mo.1972). In Benson v. State, 504 S.W.2d 74 (Mo.1974), the defendant argued that the trial court, in denying probation, had delegated its judicial discretion to the parole officer who prepared the presentence report. Finding no support for this claim in the record, the court stated, 504 S.W.2d at 76: 'In disposing of this case, we do not want to be understood as reviewing on appeal the determination by the trial court as to whether to grant or deny probation. Such determination is not subject to appellate review (Sec. 549.141, RSMo. 1969). The trial court is not even required to consider probation but under the statute has the right to do so. If he does, it is for the trial court to determine whether probation is to be granted or refused.'

We are thus unwilling to hold that a trial court is required to consider probation in each case, even where the defendant is a first offender, where the relevant statutes do not so require. Nor can we review the trial court's decision granting or refusing probation, Sec. 549.141, supra.

Appellant's next contention, that the trial court erred in failing to sustain his motion for consolidation of counts, is meritorious. The general rule is as stated in 52A C.J.S. Larceny § 53, p. 479: 'Where several articles are stolen from the same owner at the same time and place, only a single crime is committed, and the taking of separate articles belonging to the same owner from different places in the same building, pursuant to a single criminal impulse,...