State v. Held

• Decision Date: 12 March 1941
• Docket Number: 37308
• Citation: 148 S.W.2d 508,347 Mo. 508
• Parties: The State v. Joseph P. Held, Appellant
• Court: Missouri Supreme Court

148 S.W.2d 508

347 Mo. 508

The State v. Joseph P. Held, Appellant

No. 37308

Supreme Court of Missouri

March 12, 1941

Appeal from Franklin Circuit Court; Hon. R. A. Breuer Judge.

Affirmed.

Robert L. Spelbrink and William H. Corcoran, Jr., for appellant.

(1) The information in this cause is insufficient as a matter of law. State v. Christup, 85 S.W.2d 1024; Secs. 4461, 4462 R. S. 1929. (2) The information is insufficient because it fails to allege that the crime of which defendant was convicted in Illinois was such an offense that if committed in Missouri would be punishable by the laws of this State by imprisonment in the penitentiary and to the same extent as if such first conviction had taken place in a court in this State. Secs. 4461, 4462, R. S. 1929. (3) The court erred in giving and reading to the jury State's Instruction 6, in that it failed to have the jury find that defendant had been discharged, either upon pardon or in compliance with his sentence in the penitentiary. State v. Bresse, 33 S.W.2d 923; State v. Schneider, 29 S.W.2d 698; State v. Dalton, 23 S.W.2d 1.

Roy McKittrick, Attorney General, and Arthur O'Keefe, Assistant Attorney General, for respondent.

(1) The information in this cause is in proper form. State v Day, 124 S.W.2d 1189; State v. Millering, 111 S.W.2d 121; Secs. 4058, 4426, 4461, 4462, R. S. 1929; State v. Shuls, 329 Mo. 245, 44 S.W.2d 94; State v. Craft, 23 S.W.2d 185; State v. Austin, 113 Mo. 538, 21 S.W. 31; State v. Christup, 337 Mo. 776, 85 S.W.2d 1024; State v. Manicke, 139 Mo. 545, 41 S.W. 223; State v. Dalton, 23 S.W.2d 1; State v. Schneider, 325 Mo. 486, 29 S.W.2d 698; State v. Sumpter, 73 S.W.2d 760, 335 Mo. 728; Laws 1835, p. 213; State v. Levy, 262 Mo. 181, 170 S.W. 1114; State v. Collins, 180 S.W. 866, 266 Mo. 93; 58 A. L. R. 56, 64; People v. Boardman, 159 N.Y.S. 577, 172 A.D. 733; Long v. State, 36 Tex. 6; People v. Wagner, 78 Cal.App. 503, 248 P. 946; Keeney v. Com. Wealth, 147 Va. 678, 137 S.E. 478; State v. Peterson, 130 S.W.2d 505. (2) The verdict is in proper form and responsive to the information. State v. Sumpter, 73 S.W.2d 760, 335 Mo. 728; State v. Bagby, 93 S.W.2d 241, 338 Mo. 951; Sec. 4061, R. S. 1929; State v. Murphy, 133 S.W.2d 398.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

Defendant was convicted in the Circuit Court of Franklin County of robbery in the first degree, sentenced to thirty-five years' imprisonment in the penitentiary and has appealed. We have in fact only the record proper before us for review, because:

Appellant has attempted to perfect and present his appeal by filing here what he terms an "abstract of the record," as in a civil case. Appeals in criminal cases are not perfected in that way, but by filing in the appellate court a complete transcript of the record. [See Sec. 3756, R. S. 1929, Mo Stat. Ann., p. 3292, Sec. 3757, R. S. 1929, Mo. Stat. Ann., p. 3295, and cases cited in notes in Mo. Stat. Ann. Consult also, State v. Hall, 312 Mo. 427, 279 S.W. 103, 109 [12]; State v. Ragg, 337 Mo. 436, 84 S.W.2d 911.] But even if this requirement for the filing of a complete transcript, including a certified copy of the bill of exceptions, could be waived, it would not help appellant. In his "abstract of record" there is no showing that a bill of exceptions was allowed or signed and filed or ordered filed by the trial court or judge. There is this, and only this:

"BILL OF EXCEPTIONS FILED.

"Inasmuch as the foregoing evidence, proceedings, matters, things, ruling and exceptions do not appear of record, and in order that the same may be made a part of the record in this cause, so as to be presented to the Supreme Court of Missouri, defendant here now presents to the Court this, his Bill of Exceptions, and prays that the same may be settled and allowed, approved, signed, sealed and filed and ordered made a part of the record in this cause, all of which is accordingly done on this -- day of November, 1940.

"Judge of the Circuit Court of

Franklin County, State of Missouri.

"Approved:

"Robert L. Spelbrink,

"William H. Corcoran, Jr.,

"Attorneys for Defendant.

"Attorneys for the State."

The purported bill of exceptions is not a bill of exceptions, because as shown by appellant's abstract, it was not signed by the trial judge. It was not even approved or agreed to by the State's counsel. That a bill of exceptions, in order to become part of the record and preserve for review matters of exception preservable only by bill of exceptions, must be allowed and signed by the trial judge and filed pursuant to proper order is too well settled in this State to require citation of authorities. The learned Assistant Attorney General, who briefed the case here for the State, says there was no bill of exceptions filed, so that there is for consideration only the record proper. He does not elaborate the statement but doubtless had in mind the facts we have just pointed out.

It seems to be conceded, however, that there is enough here to present for review the record proper. The State so briefs and presents the case and we shall so consider it. Indeed, appellant's main contention, the only one briefed by him that could in any event, so far as appears from his abstract, even if he had here a properly signed and certified bill of exceptions, call for serious consideration, arises upon the record proper. So far as concerns the evidence, as abstracted, there can be no question but that it is sufficient to sustain the verdict. But since it is not properly preserved and presented to us for review we shall not take space to recapitulate it.

Going then to the record proper.

The information, omitting caption, signature and verification, charges:

"There comes now Theodore P. Hukriede, Prosecuting Attorney, within and for the County of Franklin, upon his official oath and his hereto appended oath, informs the court as follows: that Pete Held, alias Joe Held, on the 28th day of April, 1930, at Belleville, St. Clair County, Illinois, in the Circuit Court of such county was duly convicted of the crime of robbery and in accordance with such conviction was duly sentenced by said court to an imprisonment in the penitentiary of the said State of Illinois and that thereafter, to-wit:

"On the 16th day of January, 1939, at and in the County of Franklin and State of Missouri the said Pete Held, alias Joe Held, unlawfully and feloniously with force and arms by means of a dangerous and deadly weapon, to-wit: An automatic pistol make an assault upon one Jack Calvert; and by putting him in fear of some immediate injury to his person in his presence and against the will of the said Jack Calvert did rob, steal, take and carry away, with the felonious intent to permanently deprive the owner of the use thereof certain alcoholic liquors of the value of Seven Hundred ($ 700.00) Dollars, the property of the said Jack Calvert contrary to the form of the Statutes in such cases made and provided and against the Peace and Dignity of the State."

Appellant's contention is that the information is drawn under Sections 4461 and 4462, R. S. 1929, Mo. Stat. Ann., pp. 3063, 3066, frequently referred to as the "habitual criminal" law, and that it is fatally defective because it does not allege his discharge from the prior conviction before the alleged commission of the offense for which he was on trial. There are some other, but minor, objections to the sufficiency of the charge relative to prior conviction. Appellant cites and relies upon State v. Christup, 337 Mo. 776, 85 S.W.2d 1024.

In the Christup case the information charged first degree robbery as here, and, as the opinion states, his previous conviction of an aggravated robbery was alleged as a basis for additional punishment (Italics ours) "under what is commonly known as the Habitual Criminal Act." He was convicted and his punishment was assessed at life imprisonment, the punishment mandatorily required by said act if the defendant was found guilty of the offense charged and of a prior conviction as specified in that act. But the court pointed out that the statutes in question provided that such additional punishment was to be inflicted only if the subsequent offense was committed after the prior conviction and compliance with the sentence then imposed and lawful discharge therefrom. In that case the defendant had not served his sentence, had not been lawfully discharged, but had escaped from prison. This was held not to bring the case within the provisions of the "Habitual Criminal Act," and it was held, therefore, that the information was insufficient. It is to be noted, however, that the court did not reverse the case outright but reversed and remanded it. It is to be noted, further, that the court did not, in its opinion, quote the verdict, -- merely said that the defendant was sentenced to life imprisonment. Reference to our files in that case shows the verdict was: "We, the jury, . . . find the defendant guilty of robbery in the first degree by means of a dangerous and deadly weapon and one prior conviction, as charged in the information, and assess the punishment at imprisonment in the penitentiary for the remainder of his natural life." (Italics ours.) The files further show that by its instructions the trial court did not leave it to the jury to assess a lesser punishment than life imprisonment if they found the defendant guilty of the offense charged and that he had previously been convicted and sentenced in Colorado and had escaped after serving part of his sentence but that in such case the punishment assessed must be life imprisonment. The court, in the Christup case, was writing upon the facts and the record there presented, and holding, as it did -- and as prior decisions...