State v. Crow, s. 49516

• Decision Date: 08 April 1963
• Docket Number: No. 2,49770,Nos. 49516,s. 49516,2
• Citation: 367 S.W.2d 601
• Parties: STATE of Missouri, Respondent, v. Delbert Lee CROW, Appellant
• Court: Missouri Supreme Court

Page 601

367 S.W.2d 601

STATE of Missouri, Respondent, v. Delbert Lee CROW, Appellant.

Nos. 49516, 49770.

Supreme Court of Missouri, Division No. 2.

April 8, 1963.

Motion for Rehearing or to Transfer to Court En Banc Denied

May 13, 1963.

Graves & Graves, Neosho, for appellant.

Thomas F. Eagleton, Atty. Gen., Richard R. Nacy, Jr., Special Asst. Atty. Gen., Jefferson City, Stewart E. Tatum, Elroy S. Thomas, Joplin, for respondent.

STORCKMAN, Judge.

These two appeals from convictions of burglary and stealing are closely related, and the facts and the legal questions presented in each case are identical. They were submitted together and are consolidated for purposes of the opinion. The defendant signed a written confession covering both offenses. No question is raised as to the sufficiency of the evidence to sustain the convictions nor as to any trial error. The essential question for decision is whether the defendant is entitled to immunity from prosecution in these two criminal cases by reason of the fact that he and his brother furnished information to the sheriff of the county with respect to a number of other crimes. The facts relating to the commission and solution of the two crimes here involved are covered in large part by the defendant's written confession which was introduced in evidence without objection of any kind.

The defendant Delbert Lee Crow was thirty-two years old in 1954, ws unmarried, and lived with his parents at Carthage, Missouri. On May 27, 1954, he left home between 10 and 11 p. m. and drove his 1947 four-door Buick automobile to Kirk's Package Liquor Store, 819 West Seventh Street, in Joplin, Missouri, which had been closed for the night at about 8:30 p. m. To the rear of the liquor store was a garage owned and operated by Carl R. Shadday. The defendant first broke into the garage and stole a large number of tools, some of which he used to break into the package liquor store. He stole 17 or 18 cases of whiskey from the liquor store together with a quantity of cigarettes, worth in the aggregate about $2,000. At about 4 a. m. he finished loading the liquor, cigarettes, and tools into his car and started towards Carthage. At a place on Highway 96, about 2 1/2 miles east of Highway 43, he undertook to unload and hide some of the cases of the liquor in a field. While so engaged at about 4:30 a. m. he was apprehended by members of the Missouri Highway Patrol who were cruising the area in a patrol car.

The defendant readily admitted that the whiskey was stolen and he was taken with his cargo of loot to the Joplin city jail. The defendant permitted police officers to search his car and authorized them to return the stolen property to its owners which was done about midmorning shortly after the burglaries and thefts were discovered. The defendant was charged in separate informations with the offenses of burglarizing and stealing from the liquor store and the garage. The information charging the burglary of and stealing from Kirk's Package Liquor Store became Case No. 9979 in the Circuit Court of Jasper County and is our Appeal No. 49,516. The information charging the burglary of and stealing from Shadday's garage became Case No. 9977 in the Circuit Court of Jasper County and is our Appeal No. 49,770.

The defendant was admitted to bail in both cases. While on bond and before the trial of either case, he and his brother Glen were arrested in the State of Oregon where they were convicted and sentenced to a term of imprisonment in the Oregon State Penitentiary. While the defendant and Glen were being held in the Jackson County jail at Medford, Oregon, Glen communicated with George Hickam, the sheriff of Jasper County, and indicated that he and his brother 'wanted to walk'. Sheriff Hickam and Sheriff Hendricks of Greene County on their own behalf, and as representatives of sheriffs from 17 counties in Southwest Missouri, went to Medford, Oregon, and talked to the Crow brothers on or about July 25, 1955. The defendant and his brother gave the sheriffs information which cleared up 37 unsolved crimes exclusive of those which were the subject of the two prosecutions then pending in Jasper County. A detainer which had been lodged with the Oregon prison officials was withdrawn and upon their release the defendant and his brother voluntarily returned to Missouri where the defendant was arrested and held for trial on the pending charges of burglarizing and stealing from the liquor store and the garage.

Prior to the trial of the liquor store case, the defendant filed a motion dismiss the information but no evidence was offered and it was overruled. At the trial he filed a motion for acquittal on the same theory which was that he was entitled to immunity from prosecution by reason of the information given the sheriff. Evidence was heard on this issue by the court out of the presence of the jury and the motion was denied. The case was then submitted to the jury and the defendant was found guilty. Since the defendant was charged under the Habitual Criminal Act, the court heard evidence and found that he had three previous convictions. On the liquor store conviction, Circuit Court No. 9979, our No. 49,516, the court sentenced the defendant to imprisonment for a term of ten years for burglary and five years for stealing; the sentences were ordered to run concurrently.

Thereafter in Circuit Court Case No. 9977 (the Shadday garage prosecution) which is our Appeal No. 49,770 the parties filed a stipulation waiving a jury trial and submitting the issues to the court on the evidence adduced in Case No. 9979 and certain other facts recited in the stipulation. The court found the defendant guilty and rendered judgment and sentence that he be imprisoned for a term of five years for burglary and three years for stealing. The sentences were ordered to run concurrently with each other and also concurrently with the sentences in Case No. 9979.

The sole ground in the motion for a new trial and the only question presented on appeal relates to the defendant's claim of immunity from prosecution based on overtures made by the sheriff of Jasper County in connection with the information furnished by the defendant and his brother at the Medford conference.

In his brief the defendant cites only five cases, four of which are from other jurisdictions. These cases do not contribute anything persuasive to the decision of the immunity issue. In Turnage v. State, 134 Miss. 431, 99 So. 9, Turnage testified on behalf of the defense at the separate trial of a codefendant. At his own trial Turnage claimed immunity to prosecution under a state statute which provided that no person should be excused from testifying in a prosecution for violation of the intoxicating liquor laws on the ground of self-incrimination, but that no such person should be prosecuted as a result of so testifying. The court held the only persons entitled to immunity under the statute were those placed on the stand by the state. This state has similar statutes relating to specific subjects which authorize a grant of immunity to an offender in order to obtain his testimony on behalf of the state in the prosecution or investigation of criminal activities. See State ex rel. North v. Kirtley, Mo., 327 S.W.2d 166, 170. Ex parte Jackson, 95 Tex.Cr.R. 200, 253 S.W. 287, 28 A.L.R. 1360, holds that a person who has refused to answer questions propounded by a grand jury cannot be imprisoned after the grand jury has adjourned sine die and the court term has ended. It recognizes, however, the right and power of a state to offer immunity to one who may be himself suspected of or charged with crime. In Camron v. State, 32 Tex.Cr.R. 180, 22 S.W. 682, the defendant pleaded in bar an agreement for immunity based on his turning state's evidence. The court upheld the plea and stated that 'on the ground of public policy, it has been uniformly held that a state may contract with a criminal for his exemption from prosecution, if he shall honestly and fairly make a full disclosure of the crime, whether the party testified against is convicted or not.' In State v. Ward, 112 W.Va. 552, 165 S.E. 803, 85 A.L.R. 1175, the defendant relied on a promise of the prosecution to dismiss thirteen remaining indictments if he would plead guilty to one. After he had served the sentence imposed, the state undertook to prosecute the defendant on a charge the same as one of those previously dismissed. The court held the defense good stating: 'Promises of immunity from prosecution made to a witness by a prosecuting officer with the consent of the court are justified on the ground of public policy.'

The other case cited by defendant is State v. Williamson, 339 Mo. 1038, 99 S.W.2d 76, in which the defendant was convicted of first-degree murder. He had been previously convicted of murder in Illinois and had served 21 or 22 years of a life sentence in the penitentiary at Chester. He had violated his parole and had come to Missouri...