State v. Hagedorn, 45947

• Decision Date: 14 October 1957
• Docket Number: No. 45947,No. 1,45947,1
• Citation: 305 S.W.2d 700
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Henry HAGEDORN, Defendant-Appellant
• Court: Missouri Supreme Court

Page 700

305 S.W.2d 700

STATE of Missouri, Plaintiff-Respondent, v. Henry HAGEDORN, Defendant-Appellant.

No. 45947.

Supreme Court of Missouri, Division No. 1.

Oct. 14, 1957.

No brief filed for appellant.

John M. Dalton, Atty. Gen., Russell S. Noblet, Asst. Atty. Gen., for respondent.

HYDE, Judge.

This is a proceeding under Supreme Court Rule 27.26 (42 V.A.M.S. 120) to vacate judgment sentence of November 20, 1936 for 15 years imprisonment for first degree robbery by means of a dangerous and deadly weapon. Sections 560.120 and 560.135; statutory references are to RSMo and V.A.M.S. The Court denied relief and defendant has appealed, seeking review under Supreme Court Rule 28.05.

The information in the 1936 case in which defendant was convicted and sentenced alleged a previous conviction on April 28, 1930 for first degree robbery with sentence of ten years and alleged imprisonment thereon in the penitentiary, discharge after lawful compliance with this sentence and the commission of the 1936 robbery thereafter. However, at the hearing in this case, the evidence showed that defendant had appealed his 1930 conviction and that his appeal was not dismissed until June 21, 1937.

Defendant contends that the information in the 1936 case was fatally defective and the judgment therein void because of alleging the 1930 conviction, compliance with that sentence and discharge therefrom, when in fact the 1930 judgment and sentence was still pending on appeal at the time of the 1936 judgment and sentence.

The Court's reasons stated for denial of relief herein were that the transcript of the 1936 case, offered in evidence by defendant, showed that when the evidence of the 1930 conviction was offered in the 1936 trial, no objection was made; and that defendant's motion for new trial therein made no claim of error concerning its admission. The Court also noted the jury was instructed not to consider the matter of previous conviction in determining the guilt or innocence of defendant in the case on trial, the instruction stating, among other things: 'The fact of a former conviction, if you find it to be a fact, should be considered by the jury only as bearing upon the question of the amount of the punishment you are to inflict in case you find him guilty under the present charge. You should be careful in your deliberations that the fact, if you find it to be a fact, of prior convictions and serving in the penitentiary does not influence your judgment as to defendant's guilt or innocence of the present offense of robbery.'

It is obvious that the jury did not find a previous conviction, with sentence served and discharge therefrom, because they fixed defendant's punishment at 15 years imprisonment. If they had found such a previous conviction, imprisonment for life would have been mandatory under Section 556.280. Although the information made an allegation of previous conviction, sentence, compliance and discharge which the State could not prove in the 1936 trial, this would not make it defective in charging the offense upon which defendant was convicted. (It was not even claimed that this offense was not properly charged.) Apparently, from the Circuit Court records introduced herein, when the evidence concerning the former conviction offered by the State at the 1936 trial (the testimony of the Deputy Clerk from the records) showed the appeal from the 1930 conviction was still pending, the State then...