State v. Hefflin

• Citation: 89 S.W.2d 938,338 Mo. 236
• Decision Date: 04 January 1936
• Docket Number: 34121
• Parties: The State v. Hewitt Hefflin, Appellant
• Court: United States State Supreme Court of Missouri

89 S.W.2d 938

338 Mo. 236

The State v. Hewitt Hefflin, Appellant

No. 34121

Supreme Court of Missouri

January 4, 1936

Rehearing Denied January 4, 1936.

Appeal from Gentry Circuit Court; Hon. D. D. Reeves, Judge.

Affirmed.

Meyer & Imbersteg for appellant.

(1) A verdict based on a defective and insufficient information will not be permitted to stand. State v. Austin, 113 Mo. 538, 21 S.W. 31; State v. Moore, 121 Mo. 514, 26 S.W. 345; State v. Manecki, 139 Mo. 545, 41 S.W 223; State v. Jeffords, 64 S.W.2d 241. (2) The court erred in failing to sustain the motion to suppress the evidence on the grounds that an unlawful search and seizure of the car in which the appellant was riding was made. State v. Richards, 67 S.W.2d 58; State v. Lock, 302 Mo. 400, 259 S.W. 116; State v. Pigg, 278 S.W. 1030. (3) The court erred in failing to grant a continuance requested by appellant. State v. McKenzie, 228 Mo. 385, 128 S.W. 948; State v. Lawson, 239 Mo. 598, 145 S.W. 92; State v. Millsap, 310 Mo. 516, 276 S.W. 625; State v. Comptons, 296 S.W. 137; State v. Cook, 3 S.W.2d 365; State v. Wilson, 12 S.W.2d 445; State v. Dalton, 32 S.W.2d 1; State v. Kaufman, 46 S.W.2d 843; State v. Shawley, 67 S.W.2d 74; State v. Williams, 71 S.W.2d 732. (4) The court erred in failing to discharge the jury at the request of the appellant. State v. Rouner, 64 S.W.2d 916; State v. Sherry, 64 S.W.2d 238. (5) The court erred in permitting improper, irrelevant, immaterial and prejudicial testimony to be introduced by the State as part of the res gestae. State v. Rider, 95 Mo. 474, 8 S.W. 723; State v. Birks, 199 Mo. 263, 97 S.W. 578; State v. Helleker, 201 Mo. 614, 100 S.W. 470; State v. Porter, 213 Mo. 43, 111 S.W. 529; State v. McKenzie, 228 Mo. 385, 128 S.W. 948; State v. Hanson, 231 Mo. 14, 132 S.W. 245; State v. Reeves, 195 S.W. 1027; State v. Burns, 278 Mo. 441, 213 S.W. 114; State v. Jones, 256 S.W. 787; State v. Renard, 273 S.W. 1057. (6) Where a defendant is on trial for one crime, evidence of an unrelated crime is not admissible to prove his crime in the particular instance. State v. Hyde, 234 Mo. 200, 136 S.W. 316; State v. Gruber, 285 S.W. 426; State v. Flores, 55 S.W.2d 953; State v. Buxton, 22 S.W.2d 635. (7) One cannot be convicted of a crime on evidence which creates merely suspicion of crime, however strong. State v. Hyde, 248 S.W. 920; State v. Nagle, 32 S.W.2d 596; State v. Pippin, 36 S.W.2d 914; State v. Carter, 36 S.W.2d 917; State v. Spires, 65 S.W.2d 1057. (8) The court erred in permitting the cross-examination in an attempt to impeach State witness Hazel Thompson. State v. v. Shepard, 67 S.W.2d 91. (9) The court erred in permitting State witness Frank Post and Sergeant James S. Poage to testify because they never were endorsed on the information or amended information. State v. Shepard, 67 S.W.2d 91. (10) A conviction must be reversed where the record fails to show an arraignment and an entry of a plea, and where the defendant does not announce ready for trial. State v. Harris, 225 Mo. 639, 125 S.W. 460; State v. Loesch, 180 S.W. 875; State v. Steenbergen, 68 S.W.2d 684.

Roy McKittrick, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.

(1) The verdict is supported by sufficient and substantial evidence. Sec. 4057, R. S. 1929; State v. Jarvis, 222 S.W. 386; State v. Oertel, 217 S.W. 64. (2) The court did not err in permitting testimony as to a telephone call or in permitting witness Blodgett to testify that the tools in question were burglary tools. State v. Simmons, 58 S.W.2d 302; State v. White, 51 S.W.2d 109. (3) The court did not err in overruling appellant's motion to suppress certain evidence. State v. Owens, 259 S.W. 100; State v. Tull, 62 S.W.2d 392. (4) The appellant having offered evidence in his defense has waived his right to urge error in the overruling of his demurrer at the close of the State's case. State v. Vigus, 66 S.W.2d 854; State v. Barr, 78 S.W.2d 104. (5) The court did not err in overruling appellant's application for continuance. State v. Lambert, 262 S.W. 58; State v. Salts, 56 S.W.2d 21; State v. Lonon, 56 S.W.2d 378; State v. Naylor, 40 S.W.2d 1079; State v. Dalton, 23 S.W.2d 1; State v. Jennings, 34 S.W.2d 50. (6) The court did not err in refusing a new trial because witnesses Post and Poage were not endorsed upon the information. Secs. 3504, 3544, R. S. 1929; State v. Shawley, 67 S.W.2d 74; State v. Wilson, 12 S.W.2d 445; State v. Ivy, 192 S.W. 735. (7) The court did not err in permitting evidence as to the slot machines and first degree robbery charge in St. Joseph. State v. Jones, 256 S.W. 791. (8) The court did not err in its ruling as to the examination of witness Hazel Thompson. State v. Majors, 44 S.W.2d 163; State v. Henson, 234 S.W. 832.

OPINION

Ellison, J.

The appellant was convicted in the Circuit Court of Gentry County upon a charge of having in his custody and concealed about his person certain alleged burglar's tools, in violation of Section 4057, Revised Statutes 1929. The jury assessed his punishment at imprisonment in the State penitentiary for a term of three years. His motion for new trial in the circuit court contained numerous assignments of error which are grouped under fourteen points in his brief on this appeal. These challenge the sufficiency of the information, the trial proceedings and evidence; complain of the circuit court's action in overruling a motion to suppress evidence, a motion for a continuance, and a motion to discharge the jury; and assail rulings on the admission and exclusion of evidence, and in giving and refusing instructions.

In outline the evidence presented by the State showed that the appellant and an accomplice named Leslie Wheeler on Sunday morning, February 4, 1934, held up Ogden's Cafe in the suburbs of St. Joseph in Buchanan County with a pistol, taking five slot machines. State Highway Patrolman David Harrison of Bethany was notified by telephone and he and Sheriff Webb of Harrison County set out to patrol State Highway No. 4. They met the appellant and Wheeler, gave chase, and captured them in Albany, the county seat of Gentry County, some fifty miles northeast of the scene of the robbery and about two hours after it occurred. In the Ford automobile of the fugitives were found the slot machines, which they admitted having taken from the Ogden Cafe; also a .45 caliber automatic Colts army pistol, loaded and with trigger cocked; some .45 automatic shells and a leather pistol holster; a dry battery flashlight, called a "peep light;" a prying bar, called a "jimmy;" and a blackjack. The two men were taken back to St. Joseph and charged with the robbery of the slot machines from the Ogden Cafe. The prosecuting attorney of the county dismissed this charge whereupon both the appellant and Wheeler were surrendered to the officers of Gentry County and the instant prosecution was there begun against the appellant for having possession of burglar's tools. It seems that a similar separate charge was filed against Wheeler. Other facts will be stated as necessary in the course of the opinion.

I. The information charged the appellant under the prior conviction or so-called Habitual Criminal Statutes, Sections 4461, 4462, Revised Statutes 1929, this part of the charge alleging he had previously been convicted of burglary in Page County, Iowa, and sentenced to ten years' imprisonment in the Men's Reformatory at Anamosa, Iowa; that he was paroled, returned to the reformatory for violation of said parole, and later, in 1931, discharged on expiration of his sentence. The first assignment of error in appellant's brief is that the information was fatally defective in failing to allege "that the appellant was discharged from said institution upon being paroled." This criticism to us is unintelligible. The information substantially followed the language of Section 4461, Revised Statutes 1929, by stating he was discharged on expiration of his sentence. Why appellant thinks it should have been alleged that he was discharged when he was let out on a parole (not a pardon) which he violated, forcing his return to the reformatory, is more than we can see. The parole did not operate as a discharge and the information need not have said anything at all about it. The assignment obviously is without merit both for this reason and another stated in the next paragraph.

Appellant maintains further that his conviction cannot stand because it was not proven he was discharged from the Iowa penal institution; and it is a fact that the State failed to make this proof and abandoned the prior conviction part of the charge. But it does not follow that the case could not still be submitted under the same information on the charge therein of possessing burglar's tools, or that the jury could not convict him on that charge as a first offender. As has been held several times the Habitual Criminal Statutes themselves do not create a separate offense but merely subject second offenders to heavier punishment for the crimes they commit. [State v. Bresse, 326 Mo. 885, 894, 33 S.W.2d 919, 922.] It is well established that though the jury disbelieve the evidence offered to show a prior conviction they can still convict the defendant of the crime charged in the information and assess his punishment in accordance with the statute applicable thereto in the first instance. [State v. McBride, 334 Mo. 890, 68 S.W.2d 688.] And there is no reason why the conviction and punishment cannot follow along in the same way where the prosecutor has abandoned the prior conviction part of the charge. This was done in State v. Jackson, 336 Mo. 1069, 83 S.W.2d 87. In other words, it is not vital to a prosecution under an information alleging a prior conviction and discharge, that the pleading...