State v. King

• Decision Date: 14 February 1955
• Docket Number: No. 44122,No. 2,44122,2
• Citation: State v. King, 365 Mo. 48, 275 S.W.2d 310 (Mo. 1955)
• Parties: STATE of Missouri, Respondent, v. Virginia KING, Appellant
• Court: Missouri Supreme Court

Page 310

275 S.W.2d 310

365 Mo. 48

STATE of Missouri, Respondent, v. Virginia KING, Appellant.

No. 44122.

Supreme Court of Missouri, Division No. 2.

Feb. 14, 1955.

Alphonse J. Lynch and Curtis C. Crwaford, St. Louis, for appellant.

John M. Dalton, Atty. Gen., Robert R. Welborn, Asst. Atty. Gen., for respondent.

BOHLING, Commissioner.

Virginia King appeals from a conviction of grand larceny imposing a sentence of three years imprisonment under Laws 1951, p. 455, appearing as Sec. 556.285 RSMo Supp. 1953, V.A.M.S. (Statutory references herein are to RSMo 1949 and V.A.M.S., unless otherwise indicated.) Appellant questions the constitutionality of the statute; the sufficiency of the information; the sufficiency of the evidence; and contends error was committed in the admission of evidence, the refusal of a continuance; the giving of instructions, and in the State's argument.

The statute, with its title, reads:

'An Act to provide that larceny of goods, wares or merchandise or other personal property under certain conditions, regardless of value, shall be grand larceny and providing a penalty therefor.

'Every person who shall have been convicted three times of larceny in any degree and who subsequently shall steal, take and carry away any goods, wares or merchandise or other personal property, regardless of the value thereof, shall be guilty of grand larceny and, upon conviction, shall be punished by imprisonment in the penitentiary not exceeding five years or in the county jail not exceeding one year, or by fine not exceeding one thousand dollars, or by both such fine and imprisonment.'

The instant information charged appellant with three prior convictions of petit larceny and with feloniously stealing one bottle of whiskey of the value of $4.10, the property of Mitchell, Sam and Harry Schenberg, co-partners, in the city of St. Louis, Missouri, on September 6, 1952. No issue is presented by appellant regarding her commission of the larceny of September 6, 1952. She offered no testimony.

The three convictions of petit larceny occurred prior to and the offense of September 6, 1952, occurred subsequent to the effective date of Laws 1951, p. 455.

Several points in appellant's brief may be considered together. Appellant contends, based on her convictions of petit larceny occurring prior to the effective date of the statute, that in information failed to state an offense under the statute; that the evidence did not support a conviction under the statute, and that the statute was unconstitutional as to this prosecution of appellant. Specifically, she states that the statute contravenes the due process and equal protection of the law clauses of the Federal and State constitutions, U.S.Const. Amend. 14; Mo.Const. Art. I, Secs. 2, 10, V.A.M.S., and is an ex post facto law, U.S.Const. Art. I, Sec. 10; Mo.Const. Art. I, Sec. 13, V.A.M.S., in that it arbitrarily defines petit larceny as grand larceny, thus creating a new offense upon a showing of three convictions consummated prior to the effective date of the statute.

Appellant cites no authority directly in point but stresses dictum in several cases under the Missouri habitual criminal act, Sec. 556.280, that: 'As has been held several times, the habitual criminal statutes themselves do not create a separate offense, but merely subject second offenders to heavier punishment for the crimes they commit.' State v. Hefflin, 338 Mo. 236, 89 S.W.2d 938, 940, 103 A.L.R. 1301; State v. Collins, 266 Mo. 96, 180 S.W. 866[2, 3]. These and other like observations do not establish appellant's position.

At the time of the effective date of Laws 1951, p. 455, other statutory enactments, so far as material here, defined the offense of grand larceny as the stealing of personal property of the value of $30 or more, Sec. 560.155, a felony punishable by imprisonment not exceeding five years, Sec. 560.160, and the offense of petit larceny as the stealing of personal property under the value of $30, Sec. 560.240, a misdemeanor punishable by imprisonment in the county jail or a fine, or both.

Construing the statutory provisions relating to the offenses of petit and grand larceny, it is clear that the General Assembly in enacting Laws 1951, p. 455, imposed a greater punishment for an incorrigible larcenist, three times convicted, than for larcenists not having such a criminal record.

One does not violate Laws 1951, p. 455, unless he commits a larceny subsequent to its effective date. The statute applies to 'Every person who shall have been convicted three times of larceny in any degree and who subsequently' commits another larceny. It is similar in this respect to Sec. 556.280, our habitual criminal act. All are charged with knowledge of the provisions of the statute. The allegations of the prior convictions are not charges of distinct crimes but are merely to disclose facts bringing the new offense within the statute and for determining the criminality of the new offense. In ruling that prior convictions aggravating a new offense need not occur subsequent to the effective date of the statute, the cases hold that prior convictions of crime constitute a reasonable basis for the classification of offenders with respect to the severity of the punishments to be imposed. Ex parte Gutierrez, 45 Cal. 429, 431(1, 2); State of Iowa ex rel. Gregory v. Jones, D.C., 128 F. 626, 629, 630; State v. Adams, 89 Kan. 674, 677, 132 P. 171, 173; Jones v. State, 9 Okl.Cr. 646, 133 P. 249, 253, 48 L.R.A., N.S., 204, 212; Graham v. State of West Virginia, 224 U.S. 616, 623(1, 2), 32 S.Ct. 583, 56 L.Ed. 917.

Ex parte Gutierrez, supra, was a proceeding under a statute providing that one convicted a second time of petit larceny, a first conviction being a misdemeanor, was guilty of a felony and was to be punished by imprisonment in the state prison. State of Iowa ex rel. Gregory v. Jones, supra, was a proceeding under a statute providing that one convicted a third time of larceny of property of a value in excess of $20 was to be imprisoned for not less than 15 years. In each instance the convictions involved occurred prior to the effective date of the statute and the convictions were upheld.

State v. Adams, supra [89 Kan. 674, 132 P. 172], involved Kansas Laws 1911, p. 250, Ch. 165, Sec. 1, which provided that a person convicted a second time under the Kansas prohibitory liquor law was to be "deemed guilty of a felony" and punished by imprisonment in the penitentiary. The information charged defendant with a conviction of said law in 1908, a misdemeanor, and a violation of said law after the effective date of Kan.Laws 1911, p. 250, supra. In sustaining the application of the statute to the charge, the court stated: 'Former conviction of crime is a sufficient basis for the classification of offenders with respect to the severity of the punishment they shall receive.'

In Graham v. State of West Virginia, supra, statutory provisions imposing more severe punishment upon habitual criminals than upon first offenders were upheld against contentions that the statute violated Federal constitutional provisions relating to due process of the law, to equal protection of the law, to former jeopardy, to privileges and immunities, and to cruel and inhuman punishment. The court stated: 'The propriety of inflicting severer punishment upon old offenders has long been recognized in this country and in England. They are not punished the second time for the earlier offense, but the repetition of criminal conduct aggravates their guilt and justifies heavier penalties when they are again convicted.' 224 U.S. loc. cit. 623(1), 32 S.Ct. loc. cit. 585. And: 'The fact of such sentence [prior conviction], indicating the gravity of the offense, affords a reasonable basis for classification.' Id., 224 U.S. loc. cit. 630, 32 S.Ct. loc. cit. 588.

Among other authorities to like effect are: Commonwealth v. Graves, 155 Mass. 163, 29 N.E. 579, 16 L.R.A. 256; In re Miller, 110 Mich. 676, 68 N.W. 990, 34 L.R.A. 398, 400, 64 Am.St.Rep. 376; Taylor v. State, 114 Neb. 257, 207 N.W. 207, 209; Armstrong v. Commonwealth, 177 Ky. 690, 198 S.W. 24, 26; Rand v. Commonwealth, 9 Grat. 738, 743, 50 Va. 738, 743; McDonald v. Commonwealth of Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542, affirming 173 Mass. 322, 53 N.E. 874, 73 Am.St.Rep. 293; Moore v. State of Missouri, 159 U.S. 673, 677, 16 S.Ct. 179, 40 L.Ed. 301, affirming 121 Mo. 514, 520, 26 S.W. 345, 346, 42 Am.St.Rep. 542; 24 C.J.S., Criminal Law, Secs. 1958, 1959b, 1960e, p. 1143 et seq.; 1 Cooley, Constitutional Limitations, 8th Ed., 553, 554; 1 Bishop, Criminal Law, 9th Ed., 190, Sec. 283; Rottschaefer, Constitutional Law, 774. The subject is well treated in 25 Am.Jur. 261, Secs. 3-8, 12; Annotation, 132 A.L.R. 92, I, and annotations there mentioned.

Appellant's authorities do not establish her position and her contentions are overruled. Some statutes, differently worded, do not apply to convictions prior to their effective date.

Appellant says, although the statute be constitutional and applicable, yet the State failed to establish the three prior convictions by competent evidence and the judgment cannot stand.

The three prior convictions of appellant of petit larceny charged in the information occurred in the St. Louis court of criminal correction on January 5, 1942, on April 2, 1947, and on August 5, 1948. Mrs. Marion Cronin, deputy clerk of said court of criminal correction, identified certain books as 'Issue Books,' the official record of the clerk of said court. Over objections interposed, certain Issue Books were offered in evidence and, as established of record, portions thereof were read to the jury by the witness. She testified that (State's exhibit No. 2) Issue Book 131 at page 729 showed the name of 'Virginia King,' the charge 'petit larceny,' the issuance of a warrant November 27, 1941, and an entry: 'January 5, 1942. Defendant pleads not guilty. Tried by the...