State v. Hockaday

• Decision Date: 04 November 1889
• Parties: STATE v. HOCKADAY.
• Court: Missouri Supreme Court

12 S.W. 246

98 Mo. 590

STATE v. HOCKADAY.

Supreme Court of Missouri.

November 4, 1889.

EVIDENCE — PRIOR CONVICTION.

1. The state, to prove a prior conviction, introduced the docket of a justice of the peace showing that a private citizen made an affidavit before him charging defendant with theft; that a warrant issued, defendant pleaded guilty, and was sentenced. Held, that it was competent to prove by the justice that before plea an information was filed by the prosecuting attorney in accordance with Acts Mo. 1885, p. 145, amending sections 2025, 2026, and 2028, Rev. St. 1879, providing that a justice shall issue a warrant on a verified complaint, and that an information shall be filed before the party is put on trial or required to plead.

2. The failure of the justice to make a docket entry of the filing of the information does not invalidate the judgment.

Appeal from criminal court of Lafayette; JOHN E. RYLAND, Judge.

Hicklin & Welborn, for appellant. Atty. Gen. Wood and W. B. Wilson, for the State.

BLACK, J.

The defendant was indicted by the grand jury of Lafayette county for the second offense of petit larceny, committed on the 15th May, 1888. The indictment states that he was convicted for the first offense on the 28th March, 1887, before GRANVILLE CLAYTON, a justice of the peace within and for that county. The only questions made on this appeal relate to the evidence by which the state proved the first conviction. The justice produced in court his criminal docket, and the record therein made of a case of the state against this defendant was read in evidence, which discloses these facts: Joseph Bowman made affidavit before the justice that the defendant did, on the 26th March, 1887, steal five boxes of cigars, of the value of $20, being the property of one I. Silverman. Warrant was issued on that day, (26th March, 1887,) by virtue of which the defendant was arrested and brought before the justice. Cause continued until the 28th March, on which day the defendant entered a plea of guilty, and the justice assessed his punishment at a fine of one dollar, and ninety days' imprisonment. The justice having identified the papers in the cause, including an information made by the prosecuting attorney, testified: "This information was filed with me by the prosecuting attorney, and was read to the defendant in that case before any plea was entered by him. The defendant entered the plea of guilty to the information, and not to the affidavit of Joseph Bowman, and I rendered judgment on such plea to the information."

The objections made to this evidence are that the court erred in allowing the justice to contradict his record, and that the record shows on its face that defendant was convicted on the affidavit of a private person, and not on the information of the prosecuting officer, and that the judgment is therefore void, under the rulings in State v. Kelm, 79 Mo. 515, and State v. Briscoe, 80 Mo. 643. Both of these objections are based upon a misconception of the purport and effect of the record of the justice. It does not show that the conviction was had upon the affidavit, and not upon an information. It is silent as to whether it was had upon the one or the other. B...