State v. Hill, 51286
| Decision Date | 08 November 1965 |
| Docket Number | No. 51286,No. 1,51286,1 |
| Citation | 396 S.W.2d 563 |
| Parties | STATE of Missouri, Respondent, v. Sterling Junior HILL, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Richard G. Altobelli, Sp. Asst. Atty. Gen., St. Louis, for respondent.
Lewis E. Pierce, Robert G. Duncan, Pierce & Duncan, Kansas City, for appellant.
HIGGINS, Commissioner.
Sterling Junior Hill, charged with a prior felony under Section 556.280, RSMo 1959, V.A.M.S., was found guilty of robbery, first degree, and sentenced to twenty-five years' imprisonment. Sections 560.120 and 560.135, RSMo 1959, V.A.M.S. Upon appeal we held that the evidence on the question of defendant's guilt of robbery was sufficient for the jury; however, we held also that while a Certified Transcript of Serial Record of the Department of Corrections, describing the named person and containing photographic and fingerprint identification, was sufficient to show defendant was received at the penitentiary and was discharged on commutation of a 2-year sentence after serving from October 21, 1957, to December 1, 1958, it did not prove his conviction of an offense making Section 556.280, supra, applicable. Accordingly, we declared the sentence void and remanded the cause with directions to the trial court to cause defendant to be brought before it to hold a hearing on the issue of former conviction and, if proved, to pronounce sentence and judgment, but, in the alternative, if the issue be found in favor of defendant, to grant him a new trial. State v. Hill, Mo., 371 S.W.2d 278, 282, 283[7-9]. The court held a hearing on these issues and found 'that the previous conviction set forth in the Information has been proved by the state.' The previous conviction set forth in the amended information, upon which defendant was tried, was 'that Sterling Junior Hill * * * at the County of Polk, State of Missouri, at the October, 1957 Term of Court, was convicted of a felony, to wit: Burglary, and was sentenced to two (2) years on the Missouri State Penitentiary therefor; that thereafter on the 21st day of October, 1957, he was received at the Missouri State Penitentiary at Jefferson City, Missouri, that thereafter on the 1st day of December, 1958 he was released from said penitentiary upon commutation of sentence.' After overruling defendant's motion for new trial, thereafter filed, defendant was again sentenced to 25-years' imprisonment and he has appealed.
At the hearing held pursuant to our mandate, the Certified Transcript of Serial Record of the Department of Corrections from the original trial was received as Exhibit 1. The subject of the exhibit was 'Sterling Hill, Jr.,' and a picture of defendant with a number card showing his serial number 9766 was attached. The exhibit contained a description of Sterling Hill, Jr., at age 17, and showed that he was received October 21, 1957, for the 'Offense Burglary, County, Polk.' It also showed a sentence of two years, October 18, 1957, and 'Discharged, Commutation of Sentence--MIR-12-1-1958.' Also in evidence was the testimony of Lloyd Wilson, Circuit Clerk of Polk County, Missouri. He identified Exhibit 3 in evidence as the information filed in the Circuit Court of Polk County, in which Sterling Hill was charged with the felony of burglary and stealing in Polk County, Missouri. He also identified Exhibit 2 in evidence as the judgment and sentence affecting defendant. It showed that Sterling Hill appeared in the Circuit Court of Polk County, Missouri, October 18, 1957, in response to an information charging burglary and larceny, and that in company with his lawyer he entered a plea of guilty to the felony of burglary, the larceny charge having been dismissed. It showed also that Sterling Hill was sentenced to imprisonment in the state penitentiary for a term of two years and that 'defendant being seventeen years of age and not having previously been convicted of a felony, his imprisonment is hereby commuted to imprisonment in the Intermediate Reformatory at Algoa, Missouri for a term of two years.'
Appellant's Point I is that the proof did not establish the former conviction, and that there was a fatal variance between proof and charge because the manded information charged that defendant was received at and released from the Missouri State Penitentiary, while the proof showed he was received at and released from the Intermediate Reformatory.
State's Exhibits 1, 2, and 3 prove that defendant was convicted and sentenced for the felony of burglary on October 18, 1957; that he was imprisoned in the Intermediate Reformatory on October 21, 1957, and that he was discharged from the Intermediate Reformatory on December 1, 1958. Any doubt raised by the use of the names Sterling Hill, Sterling Hill, Junior, and Sterling Junior Hill was dispelled by the evidence as to age and description of the party received at Algoa, the photograph of that party before the court at the time of the present sentence, and the...
To continue reading
Request your trial
-
State v. Webb
...occasion it has been held that the state may amend an information and for the first time allege a prior felony conviction.' In State v. Hill, Mo., 396 S.W.2d 563, it was held that the addition of an allegation of prior conviction did not charge any separate or different offense, but only au......
-
State v. Rossini, 51295
...the amendment merely added the appellants' prior criminal records as second offenders (24B C.J.S. Criminal Law § 1962, p. 482; State v. Hill, Mo., 396 S.W.2d 563), all of which the appellants of necessity admitted when testifying and consequently there could be no prejudicial error in the c......
-
State v. Smith, 12929
...prior felony. Minor variances between the allegation and the proof in second offender cases have occasionally been allowed, State v. Hill, 396 S.W.2d 563 (Mo.1965) (allegation of imprisonment in the penitentiary, proof of imprisonment in the reformatory) and State v. Franklin, 547 S.W.2d 84......
-
State ex rel. Richardson v. May, SC 97179
...the indictment, keeping the charges intact, no further arraignment would be required on the superseding indictment. See State v. Hill , 396 S.W.2d 563, 566 (Mo. 1965) ("[S]ince the amendment did not charge defendant with any separate or different offense ... it was not necessary to show any......