State v. Foster
| Decision Date | 13 October 1952 |
| Docket Number | No. 1,No. 42942,42942,1 |
| Parties | STATE v. FOSTER |
| Court | Missouri Supreme Court |
J. E. Taylor, Atty. Gen., Richard F. Thompson, Asst. Atty. Gen., for respondent.
No attorney and no brief for appellant.
Defendant was charged and convicted of grand larceny under the Habitual Criminal Act and his punishment assessed at five years imprisonment in the state penitentiary. See Sections 560.155, 556.280 and 560.160 RSMo 1949, V.A.M.S. (all references are to the RSMo 1949, V.A.M.S., unless otherwise stated). He has appealed.
No bill of exceptions, brief or assignment of errors has been filed in this court on behalf of appellant. Our review is limited to the record proper, but it is ourduty to review that record, determine its sufficiency and render judgment. Sec. 547.270; State v. Horn, 336 Mo. 524, 79 S.W.2d 1044; State v. Bearden, Mo.Sup., 245 S.W.2d 838.
The amended information, as filed in the circuit court of the city of St. Louis and upon which appellant was tried and convicted, charged the prior conviction of a felony, to wit, the offense of operating and running a motor vehicle without the consent of the owner; that he was sentenced to imprisonment and was imprisoned in accordance with said sentence and was discharged upon lawful compliance with said sentence, see Sections 560.175, 560.180 and 556.280; and, that, thereafter, he committed a felony, to wit, grand larceny (charged in the usual and approved form) of 'ten bolts of cloth of various lengths and styles of the combined total value of four hundred dollars; all the goods, chattels and personal property of New Fashion Tayloring Company, a corporation.'
On formal arraignment appellant entered a plea of not guilty. The cause was tried to a jury and the jury returned a verdict as follows:
On amended Information for One Prior Conviction and Grand Larceny
'We, the Jury in the above entitled cause, find the defendant 'Guilty of Grand Larceny and one prior conviction of a felony' and assess the punishment at imprisonment in the penitentiary for Five (5) Years.'
A motion for a new trial was filed and overruled, allocution was granted, judgment was entered and sentence pronounced. An appeal was duly granted to this court and a certified copy of the record proper was subsequently filed with the clerk of this court.
The amended information is in due form and properly charged appellant with the crime of grand larceny and with the prior conviction of a felony for which felony it was alleged that he had been sentenced, imprisoned and discharged upon compliance with such sentence. Sections 560.155, 560.175, 560.180 and 556.280(2). The facts set forth in the amended information were sufficient to bring the prosecution within the provisions of the Habitual Criminal Act, State v. Harrison, 359 Mo. 793, 223 S.W.2d 476; State v. Murphy, 345 Mo. 358, 133 S.W.2d 398, and to further charge all of the essential elements of the crime of grand larceny. State v. Darby, Mo.Sup., 165 S.W.2d 419; State v. Vinson, 337 Mo. 1023, 87 S.W.2d 637, 638. The Habitual Criminal Act does not create a separate offense, but only prescribes greater punishment for a subsequent offense. State v. Humphrey, 357 Mo. 824, 210 S.W.2d 1002, 1005. The fact that the punishment assessed for the prior felony was imprisonment in the city workhouse of the city of St. Louis, rather than in the state penitentiary, does not prevent prosecution under the Habitual Criminal Act in case of a subsequent felony. State v. Harrison, supra, 359 Mo. 793, 223 S.W.2d 476, 478; State v. Marshall, 326 Mo. 1141, 34 S.W.2d 29, 31.
By their verdict the jury found defendant guilty of both grand larceny and one prior conviction of a felony. The finding met the requirement of Section 556.280(2) and the term imposed was the maximum...
To continue reading
Request your trial
-
State v. Ash
...its inapt wording, the verdict is also sufficient on the prior convictions. State v. Ortell, Mo., 50 S.W.2d 1037; State v. Foster, Mo., 251 S.W.2d 675[5, 6]; State v. Martin, Mo., 275 S.W.2d 336; State v. Hagerman, 361 Mo. 994, 238 S.W.2d State v. Baldwin, 214 Mo. 290, 306(VI), 113 S.W. 112......
-
State v. Redding, 49066
...former sentence was served in a city workhouse, if the offense could have been punished by confinement in the penitentiary. State v. Foster, Mo., 251 S.W.2d 675. Since 1957 commitments are made to the Department of Corrections, Sec. 216.208, which Department then determines the place of con......
-
State v. Smith, 46509
...Mo. 563, 215 S.W.2d 492, 495(7); State v. Jonas, Mo.Sup., 260 S.W.2d 3, 6; State v. Kelley, Mo.Sup., 258 S.W.2d 611, 612; State v. Foster, Mo.Sup., 251 S.W.2d 675, 677. The second complaint made by petitioner-appellant in his petition is that he was improperly sentenced to life imprisonment......
-
State v. Oswald
...brief attack the right of the State to prosecute appellant under Sec. 563.230. State v. Jones, Mo., 227 S.W.2d 713, 716; State v. Foster, Mo., 251 S.W.2d 675, 676. We quote Sec. 563.230: 'Every person who shall be convicted of the detestable and abominable crime against nature, committed wi......