State v. Krebs
| Decision Date | 05 March 1935 |
| Docket Number | No. 33492.,33492. |
| Citation | 80 S.W.2d 196 |
| Parties | THE STATE v. RICHARD KREBS, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis. — Hon. Erwin G. Ossing, Judge.
REVERSED AND REMANDED.
Verne Lacy for appellant.
(1) The so-called Habitual Criminal Act, or Prior Conviction Statute, is not applicable to capital offenses. Secs. 4061, 4461, R.S. 1929; State v. English, 274 S.W. 470; State v. Sumpter, 73 S.W. (2d) 760. (a) In a prosecution under the so-called Habitual Criminal Act, the information or indictment must allege the court which imposed the prior sentence for the purpose of showing the validity of the prior conviction. State v. Sumpter, 73 S.W. (2d) 760. (b) In a prosecution under the so-called Habitual Criminal Act, the information or indictment must allege the date of the discharge under the prior conviction, and must allege the date of the subsequent offense. State v. Sumpter, 73 S.W. (2d) 760. (c) In a prosecution under the so-called Habitual Criminal Act, the information or indictment must allege with reasonable certainty and definiteness the nature of the prior conviction. State v. Austin, 113 Mo. 538, 21 S.W. 31; State v. Asher, 246 S.W. 911. (2) A verdict in a criminal case must be responsive to the information, must convict the defendant of some offense known to the law, and must be strictly construed in favor of the defendant. State v. Bresse, 33 S.W. (2d) 919; State v. Ortell, 50 S.W. (2d) 1037; Ex parte Morgan, 280 S.W. 1038.
Roy McKittrick, Attorney General, and William W. Barnes, Assistant Attorney General, for respondent.
(1) The information is sufficient. State v. Calvert, 209 Mo. 286; State v. Ortell, 50 S.W. (2d) 1037; State v. Payne, 223 Mo. 117; State v. Slusher, 301 Mo. 285. (2) The verdict is responsive to the information. State v. Bresse, 326 Mo. 895; State v. Callius, 266 Mo. 99; State v. English, 308 Mo. 708; State v. Ortell, 50 S.W. (2d) 1037.
The appellant was convicted of robbery in the first degree by means of a dangerous and deadly weapon, in the Circuit Court of the City of St. Louis. He was charged under the Habitual Criminal Statute, Section 4461, Revised Statutes 1929, and the jury assessed his punishment at imprisonment in the penitentiary for life. On this appeal he brings up only the record proper. His assignments of error challenge the sufficiency of the information and verdict, and deny the applicability of the Habitual Criminal Statute to the case on the theory that that statute cannot be invoked in a prosecution for any crime the punishment for which may be death — as is true of robbery in the first degree with a dangerous and deadly weapon, under Sections 4058 and 4061, Revised Statutes 1929.
The part of the information charging the appellant under the Habitual Criminal Statute is as follows:
"That Richard Krebs on the 14th day of February in the year of our Lord, one thousand nine hundred and twenty-one at the City of St. Louis, aforesaid, in the ____ was duly convicted of the offense of Robbery 1st Degree and Assault to Kill (3 charges) and in accordance with said conviction was duly sentenced by said Court to an imprisonment in the penitentiary of the said State of Missouri for the term of fifteen years, and was duly imprisoned in said penitentiary of the State of Missouri in accordance with said sentence, and that the said Richard Krebs was duly discharged from said penitentiary of the State of Missouri after and upon lawful compliance with said sentence; and that the said Richard Krebs after the said discharge of said Richard Krebs from said penitentiary of the State of Missouri, to-wit, on the 28th day of July in the year of our Lord one thousand nine hundred and thirty-two at the City of St. Louis aforesaid with force and arms, by means of a dangerous and deadly weapon, to-wit: a revolving pistol, in and upon one C.B. Sherwood, employee of Sadlo-Faber Motor Company, a corporation." (From here on the information continues with the charge of the robbery.)
The verdict of the jury, including the caption, evidently returned on a form submitted by the court, was as follows:
The Habitual Criminal Statute, Section 4461, Revised Statutes 1929, provides:
"If any person convicted of any offense punishable by imprisonment in the penitentiary, or of an attempt to commit an offense which, if perpetrated, would be punishable by imprisonment in the penitentiary, shall be discharged, either upon pardon or upon compliance with the sentence, and shall subsequently be convicted of any offense committed after such pardon or discharge, he shall be punished as follows: First, if such subsequent offense be such that, upon a first conviction, the offender would be punishable by imprisonment in the penitentiary for life, or for a term which under the provisions of this law might extend to imprisonment for life, then such person shall be punished by imprisonment in the penitentiary for life; second, if such subsequent offense be such that, upon a first conviction, the offender would be punished by imprisonment for a limited term of years, then such person shall be punished by imprisonment in the penitentiary for the longest term prescribed upon a conviction for such first offense; third, if such subsequent conviction be for an attempt to commit an offense which, if perpetrated, would be punishable by imprisonment in the penitentiary, the person convicted of such subsequent offense shall be punished by imprisonment in the penitentiary for a term not exceeding five years." (Italics ours.)
[1] We turn aside here briefly for a collateral inquiry. What is meant by the expression "under the provisions of this law" which we have italicized in the section as set out above? Do the words "this law" refer to the Habitual Criminal Statute itself? If they do, the section becomes unintelligible and runs in a circle. Or should they be interpreted as if they read, the law, or as if the whole expression were omitted and the section said, for a term which might extend to imprisonment for life. The latter interpretation has, without discussion, been given to the statute in prior decisions, and is undoubtedly correct.
The section, unchanged save for a few minor variations in phraseology, has been on the statute books of this State for 100 years, except that by Laws 1895, page 153, provisions thereof including prior and subsequent convictions of petit larceny were eliminated. But in the Revisions of 1835, 1845 and 1855, instead of saying "under the provisions of this law," the statute read "under this act." [Sec. 7, p. 212, R.S. 1835; Sec. 7, p. 409, R.S. 1845; Sec. 7, p. 639, R.S. 1855.] In each of these revisions the whole chapter on crimes and punishments was a separate legislative act, and the section appeared therein. The expression "under this act" therefore referred to the whole body of criminal law comprehended within the chapter and act, including the various sections defining crimes and fixing their punishment. In the Revision of 1865 the practice of carrying the several chapters of the statutes as separate legislative acts was discontinued, the words "under this act" were dropped from the section, and the expression "under the provisions of this law" was inserted instead, Section 7, page 825, G.S. 1865. From this history of the legislation it is apparent that the words "this law" as now used in the statute refer to other parts of the criminal law fixing the punishment for crimes generally, or in the first instance.
It will be noted that the section contains three numbered divisions. The first provides that if the subsequent offense, for which the defendant is on trial, be such that upon a first conviction he would be punishable by imprisonment in the penitentiary for life, or for a term which might extend to imprisonment for life, then the punishment to be assessed under the section shall be life imprisonment. Under the second division, if the punishment for the crime upon a first conviction would be imprisonment in the penitentiary for a limited term of years, then imprisonment under the section shall be for the maximum term thus prescribed. The third division deals with attempts to commit a crime, and need not be considered here. The facts to be noted are that the first and second divisions require the infliction of the maximum punishment which could be assessed upon a first conviction, up to and including life imprisonment; and that the section mentions only crimes punishable by imprisonment in the penitentiary upon a first conviction, saying nothing about the death penalty.
[2] Appellant has cited two cases construing the statute substantially as above, State v. English, 308 Mo. 695, 708, 274 S.W. 470, 474, and State v. Sumpter, 335 Mo. 620, 73 S.W. (2d) 760. He argues this construction precludes the application of the section to crimes for which the punishment may be death (as is true under Section 4061 of the crime with which he stands charged here); and he contends that if he had not been erroneously charged under the Habitual Criminal Statute the jury might have given him less than life imprisonment, perhaps only ten years, the minimum punishment fixed by Section 4061. In stating his views on this point appellant's counsel says in his brief: "To hold that this section has any application to capital offenses is to reach an absurdity, for, under such a view, a person accused of a capital offense and found to have a criminal record could only be...
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