State v. Kent
| Citation | 382 S.W.2d 606 |
| Decision Date | 12 October 1964 |
| Docket Number | No. 1,No. 50687,50687,1 |
| Parties | STATE of Missouri, Respondent, v. Thomas KENT, Jr., Appellant |
| Court | United States State Supreme Court of Missouri |
Thomas F. Eagleton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., Jefferson City, for respondent.
John D. Connaghan, St. Louis, for appellant.
Defendant, charged under the Habitual Criminal Statute (Sec. 556.280), was found guilty of possession of a narcotic drug and sentenced to ten years' imprisonment. Secs. 195.020 and 195.200 (); State v. Kent, Mo.Sup., 375 S.W.2d 40. However, while a prior conviction of defendant was shown, there was no evidence offered to show that, after sentence in the prior case, defendant was 'subsequently placed on probation, paroled, fined or imprisoned therefor' as required by Sec. 556.280 to make the Habitual Criminal Statute applicable. Therefore, we declared the sentence void (375 S.W.2d 1. c. 43) and remanded the cause with directions to the trial court to follow the same procedure stated and applied in State v. Hill, Mo.Sup., 371 S.W.2d 278, 282, 283. The court held a hearing on these issues and found 'that the defendant has been formerly convicted of a felony and has been sentenced therefor and duly imprisoned and discharged therefrom.' After overruling his motion for new trial, thereafter filed, defendant was again sentenced to ten years' imprisonment and has appealed.
On this appeal, defendant makes three assignments of error: (1) the court erred in taking additional testimony, as directed by our mandate, on the applicability of the habitual criminal statute because Sec. 556.280 makes it mandatory that said hearing shall be held prior to submission of the case to the jury; (2) the court erred in overruling his objection to the State's exhibit, a City Workhouse record, because it was not properly identified under the Uniform Business Records Act, Secs. 490.660-490.690, or shown to be an official record; (3) the State's evidence failed to establish beyond a reasonable doubt, that defendant served any sentence for any crime in any State Correctional Institution.
As to the first assignment, of course at the trial the court must hear evidence, 'prior to the submission of the case to the jury,' Sec. 556.280(2), on the essential issues of the applicability of the habitual criminal statute, in order to decide whether the court or the jury shall determine the punishment. The court did so at defendant's trial; but the State, while showing the prior conviction, failed to produce evidence of subsequent probation, parole, fine or imprisonment therefor. This was not relevant to the issue of guilt but only to the sentencing. Thus as we said in the Hill case, on the authority of Wilfong v. Johnston, U.S.C.A. 9th, 156 F.2d 507, 510, and In re Bonner, 151 U.S. 242, 14 S.Ct. 323, 38 L.Ed. 149, '[W]here the conviction is correct, and the error or excess of jurisdiction has been as stated (in sentencing), there does seem to be any good reason why jurisdiction of the prisoner should not be reassumed by the court that imposed the sentence, in order that its defect may be corrected.' We adhere to this view and hold that the trial court had the authority to hold a hearing on this issue as directed by our mandate and impose sentence upon proof and finding of defendant's imprisonment on a prior conviction of an offense punishable by imprisonment in the penitentiary.
As to the second assignment, defend...
To continue reading
Request your trial
-
State v. Garrett
...proceedings in connection with the applicability of the Second Offender Act as was done in State v. Hill, Mo., 371 S.W.2d 278; State v. Kent, Mo., 382 S.W.2d 606; State v. Crow, Mo., 388 S.W.2d 817; and in this case (416 S.W.2d 116) on its original appeal. Under these cases, if the evidence......
-
State v. Phelps
...Criminal Act as was recently required in State v. Kent, Mo., 375 S.W.2d 40. See also State v. Hill, Mo., 371 S.W.2d 278 and State v. Kent, Mo., 382 S.W.2d 606. The judgment is reversed and the cause remanded for a new All concur. ...
-
State v. Stoner
...The Second Offender Act by its terms requires only that a prior conviction be punishable by confinement in the penitentiary. State v. Kent, Mo., 382 S.W.2d 606. Compare also State v. Nolan, Mo., 316 S.W.2d 630, holding that the fact that the defendant was sentenced to and did serve his term......
-
State v. Jones
...booking, and that Miss Bergmann was familiar with the manner in which the arrest records are kept. This is sufficient. In State v. Kent, 382 S.W.2d 606 (Mo.1964), it was held that a city workhouse record identified by a warden as the official record maintained in the course of duties by him......