State v. Long

• Decision Date: 11 December 1929
• Docket Number: 29558
• Citation: 22 S.W.2d 809,324 Mo. 205
• Parties: The State v. Herman Long, Appellant
• Court: Missouri Supreme Court

22 S.W.2d 809

324 Mo. 205

The State v. Herman Long, Appellant

No. 29558

Supreme Court of Missouri

December 11, 1929

Appeal from Grundy Circuit Court; Hon. L. B. Woods, Judge.

Affirmed.

Stratton Shartel, Attorney-General, and Walter E. Sloat Special Assistant Attorney-General, for respondent.

(1) The information is in proper form and follows the wording of the statute. It is proper and necessary to set out a former conviction when the charge is made under the habitual criminal act, and this does not make two separate offenses. Sec. 3702, R. S. 1919; State v. Kilcullen, 256 S.W 739; State v. Oertel, 280 Mo. 136; State v Collins, 266 Mo. 98. The charge of being an habitual criminal does not create two separate charges but only prescribes additional punishment if the jury finds defendant guilty of the crime charged, and also finds that he has been convicted before. (2) The plea in abatement offered by appellant was properly overruled; not being set out in the bill of exceptions, it is in reality not before the court. Sec. 3702, R. S. 1919, under which the case was tried does not violate the Constitution of Missouri nor the Constitution of the United States. State v. Moore, 121 Mo. 518; Moore v. State of Missouri, 159 U.S. 673. (3) The appellant waived his preliminary examination under the original information. This information properly charged him with stealing chickens in the nighttime, and the amended information did nothing except raise the punishment if he should be convicted as an habitual criminal. It is only when the amended information changes the nature of a charge that a defendant is entitled to a second preliminary. State v. Carey, 278 S.W. 722; State v. Woodard, 273 S.W. 1048. Even though defendant had been denied a preliminary hearing a motion to quash the information does not prove itself. Appellant should have offered evidence to the court in support thereof. State v. Langford, 293 Mo. 441; Ex parte Buckley, 215 Mo. 98; State v. McKee, 212 Mo. 147; Ex parte McLaughlin, 210 Mo. 662; State v. Sanders, 4 S.W.2d 815. When a defendant pleads the general issue of not guilty he waives a preliminary examination. State v. Gartland, 304 Mo. 98; State v. Langford, 293 Mo. 443; State v. Ferguson, 278 Mo. 129. (4) The most severe punishment it is possible to inflict for stealing chickens in the nighttime is five years. With such a maximum punishment the appellant was not entitled to twenty challenges. Secs. 3314, 3702, 4017, R. S. 1919. (5) By offering his own evidence, defendant waives his demurrer to the evidence introduced by the State. State v. Webb, 300 S.W. 707; State v. Grubbs, 289 S.W. 855; State v. Jackson, 283 Mo. 24; State v. Bigley, 247 S.W. 171; State v. Hembree, 242 S.W. 913; State v. Ellis, 234 S.W. 847. If there is substantial evidence of defendant's guilt the demurrer offered at the close of the evidence is properly overruled. There was ample evidence to send this case to the jury. State v. Cannon, 232 Mo. 215; State v. Mitchell, 252 S.W. 384; State v. Selleck, 199 S.W. 130. (6) At the time the record showing former conviction of appellant was introduced no objection was made that it was not properly certified or proven. The only objection made was to the admission being unconstitutional. The same thing applies to defendant's record of discharge from the Reformatory at Boonville. (7) Charles Helmandollar and Charles Hess were properly qualified to testify as to the value of the chickens stolen; Helmandollar having raised pure-bred chickens for twenty years and Hess for ten years. The qualifications of expert witnesses is largely a question for the trial court. State v. Liolios, 285 Mo. 16; State v. Rose, 271 Mo. 26; State v. Daly, 210 Mo. 676. (8) If a confession or statement is voluntary it is admissible even though the defendant is under arrest and his attorney not present. The testimony of sheriff was admissible. State v. Spano, 6 S.W.2d 852; State v. Lofton, 1 S.W.2d 832; State v. Robinson, 263 Mo. 324; State v. Raftery, 252 Mo. 80; State v. Brooks, 220 Mo. 83. (9) The testimony the State read into the record and to the jury relative to the testimony which had been given by appellant at the preliminary hearing of Atterberry, who was associated with him in the crime, was not prejudicial. An objection was made to this evidence on the grounds that it violated the defendant's constitutional rights, and that it had been given under promises of immunity. (a) The fact that a confession is taken by artifice, cunning, or deceit does not make it inadmissible. State v. Wilson, 172 Mo. 430; State v. Rush, 95 Mo. 203; State v. Brooks, 92 Mo. 578. (b) A statement or confession is presumed to be voluntary until the contrary is shown. State v. Johnson, 252 S.W. 624; State v. Reich, 293 Mo. 424; State v. Hart, 292 Mo. 88; State v. Armstrong, 203 Mo. 559. There is nothing in the record to show that defendant was compelled to testify against himself. State v. Taylor, 202 Mo. 5; State v. Faulkner, 175 Mo. 605. (c) If the defendant objects to the introduction of a confession on the grounds that it was not voluntary the duty devolves upon the State to show that the confession was voluntary. State v. Hunter, 181 Mo. 336. (d) It is the duty of the court to determine as a preliminary question whether or not the confession is voluntary, and if it is to admit it. State v. Patterson, 73 Mo. 706; State v. McKenzie, 144 Mo. 48; State v. Jones, 171 Mo. 406. (10) Instruction 4 was properly refused, and it would have been error had the court given it. Sec. 4038, R. S. 1919.

Walker, J. Blair, P. J., concurs; White, J., concurs in result.

OPINION

WALKER

The appellant was charged by information in the Circuit Court of Grundy County with having, in the nighttime, stolen domestic fowls (chickens), the property of one Charles Helmandollar. Upon a trial to a jury he was convicted and his punishment assessed at imprisonment in the penitentiary for a term of five years. From this judgment he appeals.

Helmandollar lived near the village of Edinburg, in Grundy County. On the morning of August 2, 1927, just before daylight, he went to his poultry house and upon an examination of the same he found many of his chickens missing. It had rained during the preceding night and a man's fresh tracks were discernible in the barnyard. It was also discovered that a hook on a gate leading into the poultry yard was unfastened. Helmandollar called up the sheriff, who came soon thereafter, and they traced the tracks from the poultry house down to a public road leading to Altamont, a village in the adjoining county of Daviess. They proceeded to the village, securing the services of the Sheriff of Daviess County in the meantime, and Helmandollar identified his chickens at a poultry house. A witness who was at the poultry house in the early hours testified that the defendant brought the chickens there and sold them to the dealer. The only testimony offered on the part of the appellant was that of three witnesses who stated that they passed Helmandollar's residence the morning of the alleged larceny and that it was daylight when they saw the defendant loading the chickens into his wagon.

I. The information was drawn under Section 3314, Revised Statutes 1919. It is in the usual form approved by this court in that it embodies all the essential averments required in charging the offense. [State v. Thomas, 301 Mo. 603, 615, 256 S.W. 1028; State v. Dummitt, 318 Mo. 1185, 1187, 2 S.W.2d 731; State v. Macon, 287 S.W. 775.] The additional averment of a former conviction is authorized under Section 3702, Revised Statutes 1919, which makes it, when pleaded, a substantive fact in aggravation of the principal offense charged. The averment under Section 3702, supra, does not constitute a separate charge, but only authorizes additional punishment if the jury finds the defendant guilty under the principal charge and that he has theretofore been convicted of a felony.

II. In addition to the objections urged to the validity of the habitual criminal act (Sec. 3702, supra), it is insisted that the information is violative of both the State (Art. 2, Sec 23, Const. Mo.), and the Federal Constitutions (Fifth Amendt. Const. U.S.), in that it places the appellant twice in jeopardy for the same offense. This contention is based on the fact that the original information simply charged the larceny of the chickens in the nighttime while the amended information on which the appellant was tried and convicted, pleaded, in addition, his former conviction of a felony. We have not been favored with a brief by the appellant defining the basis for his contention of former jeopardy. There is nothing in the record to disclose the nature of this plea. It is true that he was accorded the right to a preliminary examination under the original charge, which he waived and the same was denied to him under the amended information. This, however, offers no tenable foundation for a plea of former jeopardy. That he was convicted of the principal charge, to which is added the averment as to habitual criminal conduct, is, from the record, beyond question. This being true, as we held in a well considered opinion by Revelle, J. (State v. Collins, 266 Mo. 93), no ground exists for a plea of former jeopardy. As ruled in effect by the court in that opinion, the statute does not authorize a conviction upon a charge of being an habitual criminal; it does not make the habit of an habitual criminal an offense, but simply provides for a more rigorous punishment for the crime. The offer, therefore, to grant the appellant a preliminary examination on the original charge, which he waived, did not in anywise place him in jeopardy. It was in no sense a trial, but simply a compliance with the statute to afford him an...