State v. Hamlin

• Decision Date: 07 June 1943
• Docket Number: No. 38059.,38059.
• Citation: 171 S.W.2d 714
• Parties: STATE v. HAMLIN.
• Court: Missouri Supreme Court

171 S.W.2d 714

STATE v. HAMLIN.

No. 38059.

Supreme Court of Missouri, Division No. 2.

June 7, 1943.

Appeal from Circuit Court, Madison County; Taylor Smith, Judge.

Paul Hamlin was convicted of grand larceny of a heifer, and he appeals.

Affirmed.

R. P. Smith, of Cape Girardeau, for appellant.

Roy McKittrick, Atty. Gen., and W. O. Jackson, Asst. Atty. Gen., for respondent.

BOHLING, Commissioner.

Paul Hamlin prosecutes this appeal from a judgment imposing a sentence of two years' imprisonment for grand larceny. Section 4456, R.S.1939, Mo.R.S.A. § 4456. He briefs issues involving alleged former jeopardy, the sufficiency of the information and the court's failure to instruct. Something is said in defendant's argument here about the sufficiency of the evidence. There was direct evidence of defendant's guilt, given by an accomplice and material portions of his statements were corroborated by others.

The instant information charged defendant with the larceny of a two-year old roan heifer of the value of $35, the property of Jim Devinny and A. J. Matthews and a six-month old black whitefaced steer, of about 600 pounds, of the value of $20, the property of Erwin Owens, on or about July 6, 1939, in Bollinger county, Missouri. The trial occurred September 23, 1940. Defendant's plea to stay and dismiss the instant proceeding (autrefois convict) was based upon his conviction on June 11, 1940, of feloniously stealing, as charged, in Bollinger county, Missouri, on or about June 30, 1939, one black white-faced yearling steer, of about 500 pounds, of the value of $29, the property of Jim Devinny and A. J. Matthews; and the fact the main instruction authorized a conviction if, under the evidence adduced, the jury found defendant stole the Devinny and Matthews' steer "on or about the 30th day of June, 1939, or at any time within three years next before the 29th day of August, 1939, the date of the filing of the information herein * * *." One convicted of an offense may not thereafter be tried of any offense necessarily included therein for which he legally could have been convicted under the first indictment. Consult Secs. 4846-4848, R.S.1939, Mo.R.S.A. §§ 4846-4848; Mo.Const. Art. II, Sec. 23, Mo.R.S. A.; State v. Bockman, 344 Mo. 80, 124 S. W.2d 1205 (citing cases); State v. Toombs, 326 Mo. 981, 34 S.W.2d 61; 22 C. J.S. Criminal Law, p. 422, § 282, p. 453, § 298, subsec. c. The plea, calling for a showing that the thefts of the different cattle occurred at one and the same time, was properly overruled because under the showing the informations covered different transactions. The first case involved an offense committed June 30, 1939. The second case involved one committed on July 6, 1939. The animal of Jim Devinny and A. J. Matthews was a black-faced yearling steer of 500 pounds and of the value of $29 in the first case. The instant case involves a roan heifer of Devinny and Matthews and a six-month old black white-faced steer, weighing 600 pounds of the value of $20, of Erwin Owens.

Defendant's contention that the information was defective because it failed to charge an intent to convert the property to defendant's use or to deprive the owner permanently thereof is without substance. See State v. Hodges, Mo.Sup., 234 S.W. 789, 790[2] (overruling State v. Gochenour, Mo.Sup., 225 S.W. 690, 691[3], relied upon by defendant); State v. Barker, 296 Mo. 51, 55(I), 246 S.W. 909, 910[1], citing other cases; State v. Conley, Mo. Sup., 123 S.W.2d 103, 104[5].

The instant information, after the usual introductory clauses with respect to the prosecuting attorney making the charge, alleged the larceny of the heifer owned by Jim Devinny and A. J. Matthews and then paragraphing, but not repeating the introductory clauses, alleged the larceny of the steer...