State v. Collins

• Decision Date: 30 November 1915
• Docket Number: No. 19009.,19009.
• Citation: 266 Mo. 93,180 S.W. 866
• Parties: STATE v. COLLINS.
• Court: Missouri Supreme Court

180 S.W. 866

266 Mo. 93

STATE v. COLLINS.

No. 19009.

Supreme Court of Missouri, Division No. 2.

November 30, 1915.

Appeal from St. Louis Circuit Court; Rhodes E. Cave, Judge.

John Collins, alias, etc., was convicted of larceny from the person and with having been convicted of former felony, and he appeals. Affirmed.

Defendant was charged by indictment in the circuit court of the city of S.:. Louis with the crime of larceny from the person, and with having been convicted of a former felony, it being alleged that, on the 3d day of May, 1909, he was convicted of larceny from the person, and after sentence, imprisonment in the penitentiary, and discharge upon compliance with the sentence, he committed a second offense of larceny from the person. To that portion of the indictment charging him with a former conviction he filed a plea of former jeopardy, which he styles a "plea of res judicata," and which is as follows:

"And the said John Collins, in his own proper person, cometh in the court here and, having heard the said indictment read, says that the state ought not to further prosecute the said indictment against him, the said John Collins, charging him with being an habitual criminal under section 4913, R. S. Mo. 1909, because on June 3, 1914, the same matters and facts set up in the indictment in this cause were set up and pled in the indictment in case No. 201, February term, 1914, in division No. 11 of the circuit court of the city of St. Louis for criminal causes, and this defendant says that all the matters and things alleged in the indictment in this case, with reference to charging him with being an habitual criminal under and by virtue of section 4913, R. S. Mo. 1909, alleged in the indictment herein, are the same matters and things and charge, conviction, and confinement as alleged in the indictment aforesaid, upon which he was duly tried and acquitted by a verdict of the jury on June 3, 1914, in case No. 201, February term, 1914.

"Defendant says that the offense of being an habitual criminal, as alleged, and all the facts upon which the same are bottomed were fully and finally adjudicated by the verdict of the jury rendered in the aforesaid case No. 201, February term, 1914, in the circuit court of the city of St. Louis for criminal causes, division No. 11, wherein defendant was duly tried by a jury and acquitted of being an habitual criminal, and this he is ready to verify.

"Therefore he prays judgment, and that by the court he may be dismissed and discharged from the said premises in the said indictment above specified."

To this plea a demurrer was filed by the circuit attorney, and was by the court sustained. After arraignment and plea of not guilty defendant was tried by a jury, found guilty as charged, and his punishment assessed at imprisonment in the penitentiary for a term of seven years.

No bill of exceptions was filed, and the only question presented by this record is the action of the trial court in sustaining the demurrer to the plea of former jeopardy.

John T. Barker, Atty. Gen. (Kenneth C. Sears, of Jefferson City, of counsel), for the State.

REVELLE, J. (after stating the facts as above).

I. We have not been favored with a brief from appellant, but have his views through the oral argument of counsel.

At the threshold we are confronted with the state's insistence that the plea is defective in form, in that it does not set out the indictment, verdict, or judgment, or any of these. The greater weight of authority is to the effect that the plea autrefois acquit or autrefois convict should ordinarily set out accurately and fully the former indictment, and this because the identity of the two offenses is the very gist of it, and, further, because, before it is availing, the former conviction or acquittal must be had upon a valid Indictment, and such identity and validity cannot otherwise be made duly to appear. If this plea went to the offense alleged, instead of merely to the charge of a former conviction we would hold that, in order to fulfill the generally accepted requirements, it was necessary to set out the indictment literally, or at least so much thereof as would enable the court to determine from the averments the questions of identity of offenses and validity of the indictment. In view, however, of our impressions as to the true cast and character of the charge of former conviction, it can hardly be said that the sufficiency of this particular plea must be determined by that test. There is not in such cases involved any identity of offenses because there is no distinct offense alleged. It has never been held in this state that in an...