State v. Garrish

• Decision Date: 11 June 1930
• Docket Number: 30247
• Citation: 29 S.W.2d 71
• Parties: STATE v. GARRISH
• Court: Missouri Supreme Court

29 S.W.2d 71

STATE v. GARRISH

No. 30247

Supreme Court of Missouri, Second Division

June 11, 1930

Stratton Shartel, Atty. Gen. and Henry Depping, Asst. Atty Gen., for the State.

OPINION

DAVIS C.

The prosecuting attorney of Buchanan county filed an information against defendant in the circuit court. It comprised two counts.

The first count, after averring a prior conviction of grand larceny in Buchanan county and his imprisonment in the penitentiary of Missouri and his discharge therefrom, charged defendant with second degree burglary and larceny. The second count charged him with the identical second degree burglary and larceny as was charged in the first count. The jury found defendant guilty of second degree burglary as charged in the information, and fixed his punishment at ten years in the penitentiary; and it further found him guilty of burglarious larceny as charged in the information, and assessed his punishment at five years in the penitentiary. The sentence and judgment of the court was that defendant be confined in the penitentiary for a period of fifteen years, ten years for the crime of second degree burglary and five years additional for the crime of burglarious larceny. Defendant appealed.

The evidence adduced in behalf of the state warrants the finding that one Harry Heiten, at 404 Edmond street, in the city of St. Joseph, Buchanan county, on November 11 and 12, 1928, owned and operated a pawnshop and clothing store. The place of business of the Downtown Taxi Company adjoined Heiten's shop. There were adjoining basements under both places of business, which were separated by a brick wall. Defendant, together with two or three accomplices, opened a hole in the brick wall of the basement by removing the bricks, crawled through into the basement, broke fastenings on the basement door leading from the basement into the shop above, and entered the shop of Heiten. From Heiten's store defendant and his accomplices purloined about fourteen overcoats, twelve suits, four rifles, one shotgun, and some other articles of the value of about $ 800, which they transported to Kansas City and pawned. The rifles and shotgun were owned by Heiten. The clothing was left with him in pawn.

The evidence further warrants the finding that defendant was convicted and sentenced and served a term of two years in the Missouri penitentiary for stealing a Cadillac automobile, and that he was in due course discharged from it.

Defendant offered no evidence in his behalf.

I. The first and second counts of the information are identical in import and language, for both of them charge burglary and larceny with respect to the same incident, with this difference, however, that the first count, in addition to the burglary and larceny, charges the commission of a prior felony under section 3702, Revised Statutes 1919, as may be done. There seems to be no doubt but that counts charging offenses arising out of the same transaction, in which the proof of one tends to prove the other and which are so far cognate as that an acquittal or conviction for one would be a bar to the trial for the other, properly may be charged in one indictment or information. State v. Christian, 253 Mo. 382, 161 S.W. 736; State v. Young, 266 Mo. 723, 183 S.W. 305. Even if we could say that the information herein improperly joined the counts, yet defendant may not take advantage of it, for he failed to demur or complain of the matter in his motion for a new trial. State v. Kurtz, 317 Mo. 380, 295 S.W. 747. We have held that, under section 3305, Revised Statutes 1919, the offenses of burglary and the larceny incidental thereto properly may be charged in one count. State v. Stuart, 316 Mo. 150, 289 S.W. 822; State v. Grubbs, 316 Mo. 243, 289 S.W. 852.

II. Relative to the punishment for burglary in the second degree, section 3302, Revised Statutes 1919, has been repealed and a new section, fixing the punishment in the state penitentiary at not less than two nor more than ten years has been enacted in lieu thereof. Laws 1921, p. 279, § 3302. This brings to consideration the verdict.

The record advises that the defendant did not move to require the state to elect at any stage of the proceeding upon which count it would submit the cause to the jury, and, according to the record, the cause was submitted to the jury upon both counts. The verdict finds defendant guilty of burglary in the second degree as charged in the information, and assesses his punishment at ten years in the penitentiary, and further finds him guilty of larceny as charged in the information and, in addition to the punishment for burglary, assesses his punishment for said larceny at five years in the penitentiary. It will be noted that the verdict is general and fails to specify the count upon which the jury found him guilty. The punishment assessed was applicable to either the first or second count. If the jury found him guilty under the first count, which comprised the so-called Habitual Criminal Act (section 3702, Rev. St. 1919), the punishment assessed was mandatory. If the jury found him guilty under the second count, which merely charged burglary and larceny, the punishment assessed was permissible. Whether the jury found defendant guilty under the first or second count then is immaterial, for the counts charged the identical offense. It is true that the first count, in addition to the burglary and larceny, charged the commission of a prior felony, which had to be proved, but, before the finding that defendant had committed a prior felony became operative as to punishment, it was incumbent on the jury to first find that defendant was guilty of burglary and larceny. ...