State v. Lincoln
| Decision Date | 17 July 1972 |
| Docket Number | No. 56859,No. 2,56859,2 |
| Citation | 482 S.W.2d 424 |
| Parties | STATE of Missouri, Respondent, v. Robert Lee LINCOLN, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
C. B. Fitzgerald, Warrensburg, for appellant.
This is an appeal from a conviction for burglary and stealing wherein the court assessed defendant's punishment at consecutive sentences of five years for burglary and two years for stealing after the jury found defendant guilty of both offenses but was unable to agree on punishment. We affirm.
The original complaint filed in the magistrate court charged defendant and one Larry Sears with breaking and entering a store from which they stole various items. Defendant waived a preliminary hearing. Subsequently, the prosecuting attorney filed separate informations in the Circuit Court against defendant and Sears. Thereafter, Sears entered a plea of guilty and testified against defendant, who pleaded not guilty and stood trial in this case.
Defendant's first contention is that since the State filed a complaint against both him and Sears in the magistrate court and neither of them requested a severance, the State could not sever the charges against them. Defendant does not claim an absolute right under all circumstances to joint prosecution, but asserts that once the State filed a joint complaint in the magistrate court, it had elected that course and thereafter the two defendants were to be proceeded against jointly unless a severance was requested by one of those charged.
We find no merit in this contention. The offenses involved were ones which may be charged jointly or separately. If the State had elected to proceed by indictment, it could have charged defendants jointly in a single indictment or individually in separate indictments. The prosecuting attorney had the same election where defendants were charged by information rather than by indictment. The fact that the preliminary complaint filed in the magistrate court to determine probable cause named both persons in one complaint did not alter this right. Such a situation was dealt with in the case of State ex rel. Esser v. District Court of Fifth Judicial District in and for Nye County, 42 Nev. 218, 174 P. 1023. There, two men were charged jointly by complaint in the justice of the peace court with stealing nine head of cattle. After hearing, the justice of the peace entered judgment holding both defendants for trial in the district court. Thereupon, separate informations were filed against the two defendants, and a contention similar to that of defendant herein was made. In disposing of that contention, the court said, 174 P.l.c. 1026:
See also 42 C.J.S. Indictments and Informations § 158a, p. 1105.
Defendant cites § 545.880, V.A.M.S., Supreme Court Rule 25.07, V.A.M.R., and State v. Johns, 259 Mo. 361, 168 S.W. 587. However, the statute, Supreme Court Rule and case simply deal with situations in which two or more defendants are jointly indicted or informed against. Where this occurs, defendants have the right to be tried separately if they request it; otherwise, joint trial is authorized and the trial court is granted discretion as to whether the defendants are to be tried separately or jointly. The authorities do not stand for the proposition advanced by the defendant.
Next, defendant makes an attack on Instruction No. 2, which was the verdict-directing instruction. He says that the evidence introduced was that Larry Sears actually broke and entered the building, opening a door to let defendant in, but that Instruction No. 2, instead of requiring a finding that the defendant acted in concert with others to accomplish the burglary, simply authorized a verdict if the jury found he broke and entered the building. Actually, there was...
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