State v. Hagerman

• Decision Date: 12 October 1964
• Docket Number: No. 2,No. 49776,49776,2
• Citation: 382 S.W.2d 639
• Parties: STATE of Missouri, Respondent, v. Harold HAGERMAN, Appellant
• Court: Missouri Supreme Court

Page 639

382 S.W.2d 639

STATE of Missouri, Respondent, v. Harold HAGERMAN, Appellant.

No. 49776.

Supreme Court of Missouri, Division No. 2.

Oct. 12, 1964.

Thomas F. Eagleton, Atty. Gen., Louis C. DeFeo, Jr., Asst. Atty. Gen., Jefferson City, for respondent.

John O. Hichew, St. Louis, for appellant.

BARRETT, Commissioner.

Several years ago Harold Lee Hagerman was found guilty of an assault with malice with intent to rob (V.A.M.S. Sec. 559.180), in addition two prior felony convictions were alleged and found (Sections 556.280-556.290 RSMo 1959, V.A.M.S.) and a jury fixed his punishment 'at imprisonment in the penitentiary for the rest of his natural life.' In September 1962, proceeding under Supreme Court Rule 27.26, Hagerman filed a motion to vacate the life sentence imposed in 1950. The court in which he had been convicted found that his motion to vacate the judgment 'fails to state a claim entitling movant to the relief sought therein' and, therefore, summarily denied the motion. Hagerman has appealed from the denial of his motion, and experienced and respected court appointed counsel has filed a brief on his behalf.

The motion to vacate is not directed to the substantive offense with which Hagerman was charged, an armed assault with intent to rob, but is directed to the allegation and finding of prior felony convictions under the so-called habitual criminal act as it then existed and was applied. In addition to the principal offense of an assault with malice the information charged three prior felony convictions, two in Arkansas and one in the United States District Court of Minnesota. The first point made by the motion is that the information was defective and therefore the sentence was in violation of the constitution and laws of Missouri. In essence the complaints are that the information did not allege the dates of his incarceration, particularly the time served in that the date of discharge is omitted. It is urged that the language 'duly imprisoned' and similar language, together with the dates of the convictions, is insufficient and therefore it is said that the information was 'fatally defective.' It is contended that these alleged deficiencies bring this appeal within State v. Franck, Mo., 260 S.W.2d 52; State v. St. Clair, Mo., 261 S.W.2d 75 and particularly the recent case of State v. Bryant, Mo., 375 S.W.2d 107.

It is not necessary here to analyze and distinguish those cases in detail, in this case as to the two Arkansas convictions (and they alone were sufficient), unlike the informations involved in those cases, it was alleged 'that said two convictions and sentences thereon (3 years imprisonment in each case), as aforesaid, were in separate cases and were imposed to run concurrently and the imprisonment of Harold Hagerman * * * on both of said sentences were served concurrently; and that the said Harold Hagerman * * * was duly discharged from said Penitentiary of the State of Arkansas after and upon lawful compliance of said sentence.' (Emphasis supplied). Thus unlike the informations relied on by the appellant, this information, in the language of the statute alleged a discharge 'upon compliance with the sentence' (Section 556.280 RSMo 1959 V.A.M.S.) and therefore is not fatally defective. State v. Smith, Mo., 324 S.W.2d 707 (a life sentence for robbery with prior felony convictions); State v. Harrison, 359 Mo. 793, 223 S.W.2d 476; State v. Whipkey, 358 Mo. 563, 215 S.W.2d 492.

The second complaint is that the sentence imposed on the appellant under the habitual criminal act was in excess of the court's jurisdiction and void 'because the state did not establish that defendant...