State v. Hendrix
| Decision Date | 14 December 1932 |
| Parties | The State v. Fred Hendrix, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cedar Circuit Court; Hon. C. A. Hendricks Judge.
Reversed and remanded.
Collins & Osborn and R. K. Phelps for appellant.
Stratton Shartel, Attorney-General, for respondent; Robert B Denny of counsel.
It wa proper to permit the State to introduce the records of the State Penitentiaries of Oklahoma and Kansas by certified copies to show defendant's presence in such States during the period from the year 1922 to 1931 to bring the prosecution within the three-year Statute of Limitations. As certified copies of records of Public Offices of Sister States such evidence is admissible. R. S. 1929, sec. 1661; State v. Garth, 164 Mo. 553; State v Pagels, 92 Mo. 300; 5 Chamberlayne Ev., secs. 3432, 3434, 3439. The transcript of the preliminary hearing of defendant on the felony charge upon which he was committed to jail was admissible to prove the lawfulness of the imprisonment. Kelly Criminal Law, sec. 769; 5 Chamberlayne Ev., secs. 3404-3406; McDermott v. Barnum, 19 Mo. 204. The defendant after a previous escape, had been located in Texas and brought back and again lodged in jail from which he escaped on the date mentioned in the information. His whereabouts outside of the State of Missouri were accounted for by the proof that he had for practically the whole time been an inmate of the state prisons of first Oklahoma and then Kansas. The information was filed within the time limit after deducting the time defendant was away from the State. State v. Washburn, 48 Mo. 240; State v. Owen, 78 Mo. 367.
Cooley, C. Westhues and Fitzsimmons, CC., concur.
In the Circuit Court of Cedar County, defendant was convicted under an information charging that on the day of February, 1922, being lawfully imprisoned in the county jail on a charge of assault with intent to rob and murder one W. D. Murphy, he feloniously broke jail and escaped therefrom. The charge is based upon Section 3916, Revised Statutes 1929. The information was filed September 10, 1931. In order to avoid the bar of the Statute of Limitations the information charged that from the time of his escape until February 1, 1931, defendant had been a fugitive from justice and a nonresident of this State. Defendant was sentenced in accordance with the verdict of the jury to two years' imprisonment in the penitentiary and has appealed.
The evidence offered by the State tended to show that in November, 1921, defendant was charged by complaint before a justice of the peace with the crime of assault with intent to "kill and rob" W. D. Murphy, was given a preliminary hearing, bound over to the circuit court and failing to make bond was committed to jail. In the same month he escaped from jail and fled to Texas whence he was brought back on requisition and again lodged in jail. In February, 1922, he again escaped. The evidence was sufficient to sustain the charge in the information of breaking and escaping from jail. Defendant offered no evidence and has filed no brief in this court. Further facts will be given in connection with the legal propositions to which they respectively apply.
I. The State introduced in evidence, over the objections of defendant, the transcript of the justice before whom defendant's preliminary examination had been held, showing the arrest and examination of defendant and the issuance of a commitment upon his failure to give bond. There was also introduced the warrant for defendant's arrest which had been issued by the justice upon the filing of the complaint, together with the sheriff's return thereon. Some objections were made to the warrant and the return which we deem without merit but shall not discuss because not preserved in the motion for new trial.
The justice's transcript was produced by the clerk of the circuit court from his files as part of the "original rolls in the case of the State of Missouri v. Fred Hendrix in which he is charged with assault upon one W. D. Murphy." These papers did not bear a filing mark of the circuit clerk showing their filing in his office but were found by him in the files of the case in his custody. It is charged as error in defendant's motion for new trial that "the court erred in permitting the State to introduce as evidence the files in the case of the State of Missouri v. Fred Hendrix purporting to charge him with assault with intent to kill and rob one Murphy, said files showing on their face that they had never been filed in the cause."
By statute, now Section 3489, Revised Statutes 1929, the justice before whom a preliminary examination is held is required to certify the examination and all recognizances taken by him and deliver same to the clerk of the circuit court having cognizance of the felony charged on or before the first day of the next term of said court. The circuit clerk thereupon becomes the custodian of such transcript and papers so delivered to him. The statute does not prescribe that he shall endorse upon them a filing mark showing the fact and date of their delivery to him. Such filing mark could be at most only evidence of such facts. Since the transcript was found in the files of the case in the custody of the officer in whose custody it should be and naturally would be, assuming right action and compliance with statutory duty by the justice, the absence of a filing mark did not tend to sustain defendant's contention that the papers in question showed "on their face that they had never been filed in the cause." The authenticity of the transcript was not questioned. The court did not err in admitting it.
II. Complaint is made of the admission of testimony of George Maderus and C. T. Church relative to the commitment of defendant to the county jail "because the records of the commitment are the best and only competent evidence." Church was sheriff and Maderus deputy sheriff at the time of defendant's preliminary examination. Maderus testified that he had arrested defendant under the warrant issued by the justice, as shown by his return which was in evidence, and that after the preliminary "I turned him over to Mr. Church." Church testified that after the preliminary he "received" the defendant, took him to jail and placed him therein. There was no objection to that part of Church's testimony nor to the testimony of Maderus that he attended the preliminary and thereafter turned defendant over to Mr. Church. The objections offered were to Maderus' testimony relative to arresting and lodging defendant in jail before the preliminary under the warrant of arrest. There is no merit in this assignment of error.
III. In order to prove the allegations of the information that from the time of his escape until February 1, 1931, defendant had been continuously a fugitive from justice and a nonresident of the State, and thus avoid the bar of the Statute of Limitations, the State introduced and relied solely upon certain documentary evidence, Exhibits C and D. Both were admitted over defendant's objections and exceptions and the motion for new trial sufficiently presents the court's ruling for our review.
Exhibit C, as introduced, is a certificate of "R. D. Payne, secretary to the warden of the Kansas State Penitentiary." As at first offered, we gather from the remarks of court and counsel, the exhibit included copies of certain records or documents and perhaps photographs. After lengthy objections by defendant's counsel and considerable colloquy with State's counsel, the latter withdrew his offer of all of the exhibit except Mr. Payne's certificate, which was admitted. It is as follows:
The above was sworn to before a notary public. Omitting heading which shows, "R. A. Shackleford, Bertillon Clerk," Exhibit D is as follows:
This also was sworn to before a notary public. Exhibits C and D were designed to show that defendant was in the Oklahoma Penitentiary, under the name of Shannon, from March 27, 1922 to December 16, 1924, and in the Kansas Penitentiary from May 7, 1925, to December 30, 1930, and therefore, the State argues, a nonresident of Missouri for enough of the time between his escape and the filing of the information to leave less than the three year period of limitation. The only...
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