State v. Huff

• Citation: 181 S.W.2d 513,352 Mo. 1161
• Decision Date: 05 June 1944
• Docket Number: 38885
• Parties: State v. Leonard Huff, Appellant
• Court: United States State Supreme Court of Missouri

181 S.W.2d 513

352 Mo. 1161

State v. Leonard Huff, Appellant

No. 38885

Supreme Court of Missouri

June 5, 1944

Rehearing and Motion to Transfer to Banc Denied July 3, 1944.

Appeal from Iron Circuit Court; Hon. Edward T. Eversole Judge.

Affirmed (with modification of sentence).

J Arthur Francis and Arthur T. Brewster for appellant.

(1) The court erred in refusing to sustain the defendant's motion to quash the information. State v. Pickles, 1 Mo.App. 21; State v. Ramsburger, 106 Mo. 135, 17 S.W. 290; State v. Emry, 18 S.W.2d 10; State v. Matticker, 22 S.W.2d 647; Ex parte Dickinson, 132 S.W.2d 243. (2) The court erred in refusing to give the defendant's instruction in the nature of a demurrer at the close of the whole case. State v. Emry, 18 S.W.2d 10; State v. Matticker, 22 S.W.2d 647; State v. Harris, 82 S.W.2d 877; State v. Mathis, 129 S.W.2d 20. (3) The court erred by giving Instruction 1, because said instruction should have been divided and set out separately the question of former convictions and the question of burglary and larceny. (4) Said instruction required the jury to find the defendant guilty of the two former convictions before they could find him guilty of burglary. (5) Said instruction failed to advise the jury that they may find the defendant guilty of the burglary charge without finding him guilty of the two former charges. State v. Irvin, 80 Mo. 249; State v. McBroom, 238 Mo. 495, 141 S.W. 1120; State v. Sumpter, 335 Mo. 620, 73 S.W.2d 760; State v. Dalton, 23 S.W.2d 1. (6) The court erred in giving instructions No. 2 or No. 1-A because: (a) It is erroneous, vague, indefinite and in conflict with No. 1. (b) It failed to instruct the jury that they may find the defendant guilty of larceny and not of the two former convictions and of burglary. (c) It directed the jury if they found and believed that the defendant did commit larceny after the two former convictions and burglary if they found that he did commit burglary, to find the defendant guilty of the two former convictions and of larceny in connection with the burglary. (d) Said instruction failed to use the word burglariously. State v. Irvin, 80 Mo. 249; State v. Austin, 113 Mo. 538, 21 S.W. 31; State v. Minicke, 139 Mo. 545, 41 S.W. 223; State v. Burns, 263 Mo. 593, 173 S.W. 1070; State v. Dilley, 336 Mo. 75, 76 S.W.2d 1085; State v. McBroom, 238 Mo. 495, 141 S.W. 1120; State v. Pickles, 1 Mo.App. 21. (7) The court erred in giving instruction No. 4 because it failed to instruct the jury on all of the law on the point covered. It is erroneous and in conflict with the law and very prejudicial to the defendant. In this, to-wit: It instructed the jury that any evidence of prior conviction goes exclusively to the defendant's credibility as a witness in this case. State v. Citius, 331 Mo. 605, 56 S.W.2d 72; State v. Bagby, 338 Mo. 951, 93 S.W.2d 241; State v. Sumpter, 335 Mo. 620, 73 S.W.2d 760. (8) The court erred in failing to instruct the jury on all points of law involved in the case even though requested to do so by this defendant. In this, to-wit: He failed to instruct the jury on the question of circumstantial evidence. He failed to instruct the jury on the question that they may find the defendant guilty of larceny and not of burglary or burglary and not of larceny or that they may find him guilty of both without finding him guilty of the two former convictions. State v. Woolard, 111 Mo. 248, 20 S.W. 27; State v. Hudson, 137 Mo. 681, 39 S.W. 276; State v. Halbrook, 311 Mo. 682; State v. Sumpter, 335 Mo. 620, 73 S.W.2d 670. (9) The admittance into evidence, the two buckets or lunch baskets and articles therein, the tire pump, spoon and jack, over the objection and exception of the defendant, by the Court was error. State v. Duncan, 330 Mo. 656, 50 S.W.2d 1021; 36 C.J. 881; State v. Emry, 18 S.W.2d 10. (10) The court erred in refusing to sustain the defendant's motion for new trial. State v. Halbrook, 311 Mo. 682; State v. Bagby, 220 S.W. 25; State v. Emry, 18 S.W.2d 10; 36 C.J. 881. (11) The court erred by pronouncing judgment and sentence, because they were contrary to the instructions give by the court. State v. Sumpter, 335 Mo. 620, 73 S.W.2d 760.

Roy McKittrick, Attorney General, and Aubrey R. Hammett, Jr., Assistant Attorney General, for respondent.

(1) The circuit court failed to comply with the opinion and mandate of this court. Secs. 4155, 4448, 4849, R.S. 1939; State v. Lewis, 273 Mo. l.c. 536; State v. Harris, 87 S.W.2d 1026; State v. Francis, 95 S.W.2d 1190. (2) The information is sufficient in form and substance and appraises the defendant of the crime charged. Secs. 4448, 4854, 4855, R.S. 1939; State v. Harris, 283 Mo. 99, 222 S.W. 420; State v. Oertel, 217 S.W. 64, 280 Mo. 129; State v. Vinson, 87 S.W.2d 637, 337 Mo. 1023; State v. Kurant, 282 S.W. 737; Sec. 3894, R.S. 1939; State v. Wymore, 132 S.W.2d 979; State v. Garrish, 29 S.W.2d 71; State v. Held, 148 S.W.2d 508, 347 Mo. 508; State v. Barbour, 151 S.W.2d 1105, 347 Mo. 1033; State v. Culbertson, 74 S.W.2d 375. (3) The verdict of the jury is responsive to the issues and sufficient. However, the cause should be remanded to the lower court with instructions to enter a punishment for larceny. State v. Meadows, 55 S.W.2d 959, 331 Mo. 533; Sec. 4093, R.S. 1939; State v. Gordon, 153 Mo. 576, 55 S.W. 76; State v. Person, 234 Mo. 262, 136 S.W. 296; State v. Adams, 19 S.W.2d 671, 323 Mo. 729; State v. Turpin, 61 S.W.2d 945, 332 Mo. 1012. (4) The court properly overruled defendant's instruction in the nature of a demurrer at the close of the State's case. State v. Starling, 207 S.W. 767; State v. Hembree, 242 S.W. 911, 295 Mo. 1; State v. Ring, 141 S.W.2d 57, 346 Mo. 290; State v. Schrum, 152 S.W.2d 17, 347 Mo. 1060. (5) The court committed no error in giving instructions I and I-A. When defendant was charged under the Habitual Criminal Act and defendant voluntarily testified to former convictions the court needed instruction only in the conjunctive and not the alternative. State v. Kimbrough, 350 Mo. 609, 166 S.W.2d 1077; State v. Hefflin, 89 S.W.2d 938, 338 Mo. 236; State v. Murphy, 345 Mo. 358, 133 S.W.2d 398. (6) The court was not required under the evidence to instruct upon circumstantial evidence since the evidence was not wholly circumstantial. State v. McCord, 237 Mo. 242, 140 S.W. 885; State v. Hull, 8 S.W.2d 1075; State v. Sanford, 317 Mo. 865, 297 S.W. 73. (7) It was not prejudicial for the court to give Instruction 4. State v. Waters, 144 Mo. 341, 46 S.W. 73; State v. Mosier, 102 S.W.2d 620; State v. Miller, 29 S.W.2d 54; State v. Futrell, 46 S.W.2d 588, 329 Mo. 961; State v. Kaplan, 16 S.W.2d 35. (8) The court committed no error in permitting the introduction in evidence of State's Exhibits A and B. State v. Stanton, 68 S.W.2d 811; State v. Austin, 113 Mo. 538, 21 S.W. 31. (9) The court properly admitted in evidence the two buckets, tire pumps, spoon and jack. State v. Swarens, 294 Mo. 139, 241 S.W. 934; State v. Weaver, 56 S.W.2d 25; State v. Nichols, 130 S.W.2d 485; State v. Strait, 279 S.W. 109. (10) Such assignments as contained in assignment of error No. 9 save nothing of review by this court. State v. Oertel, 217 S.W. 64, 280 Mo. 129; State v. Biven, 151 S.W.2d 1114. (11) All other assignments of error in motion for new trial are abandoned by the appellant in his brief therefore, are not for review by this court. State v. Mason, 98 S.W.2d 574.

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

OPINION

WESTHUES

This is the second appeal in this case. See State v. Huff, 173 S.W.2d 895. This case was remanded because the appeal was deemed premature. By the verdict of the jury appellant was found guilty of burglary and larceny. The jury assessed a punishment of two years' imprisonment for the burglary but did not assess any punishment for the larceny. Neither did the trial court fix a punishment for the larceny. The case was remanded with directions to the trial court to fix the duration of the imprisonment for the larceny and "enter a new judgment sentencing defendant on both charges." The trial court, pursuant to that mandate, fixed the punishment for the larceny at two years' imprisonment. It then sentenced the defendant to serve two years for the burglary and two years for the larceny, the latter sentence to run concurrently with the first. From these sentences appellant duly appealed to this court and the case is here on the merits.

Appellant contends that the evidence was insufficient to sustain a conviction. To this we cannot agree. The charge was that appellant burglarized the post office at Annapolis, Iron county, Missouri, on December 14, 1940, and took therefrom a number of parcel post packages containing various articles of merchandise which were described in the information. The postmistress testified that on the morning of December 15 her attention was called to the fact that the rear door of the post office was open. Upon investigation she found that the door had been forced open during the night of December 14, and that a heavy parcel post package addressed to one Beulah Brewer was missing. Later other packages were found missing. The evidence disclosed that there was a dance in progress at a cafe near the post office on the night of December 14, which appellant attended. A witness testified that he saw appellant by a window of the post office on that night and later saw someone in the building; that shortly thereafter he saw appellant leave the post office building by way of the back door carrying a tow sack which apparently contained some articles. A few months later a tire pump, tire spoon, car jack and other articles were found on a place which had been occupied by appellant during the month of December. Mrs. Brewer testified that she had ordered ...