State v. McBroom

• Decision Date: 19 December 1911
• Citation: 238 Mo. 495,141 S.W. 1120
• Parties: STATE v. McBROOM.
• Court: Missouri Supreme Court

141 S.W. 1120

238 Mo. 495

STATE v. McBROOM.

Supreme Court of Missouri. Division No. 2.

December 19, 1911.

1. CRIMINAL LAW (§ 770)—SUBMISSION OF ISSUES.

In a prosecution for crime, every issuable fact essential to the state's case must be submitted to the jury.

2. CRIMINAL LAW (§ 1202)—UNLAWFUL PURCHASE OF GOODS FROM INFANT — INSTRUCTIONS —SECOND CONVICTION.

Under Rev. St. 1909, § 4746, making it unlawful for pawnbrokers, etc., to receive goods from a minor without written consent of such minor's parents or guardian, and under section 4747, authorizing increased punishment on a second conviction under section 4746, and under an indictment charging in one count the offense described by section 4746, and a prior conviction, an instruction that on finding a former conviction, and also finding accused guilty of the present offense charged, he should be convicted and punished by imprisonment for not less than two nor more than three years, the punishment prescribed by section 4747 was erroneous as compelling a conviction under section 4747, or an absolute acquittal, preventing a conviction under section 4746, though the state's evidence of a former conviction was not controverted.

3. CRIMINAL LAW (§ 1178)—APPEAL—ADMISSIONS BY COUNSEL—EFFECT.

That accused's counsel admitted in his brief and on argument that accused was formerly convicted does not so far bind accused as to render the error in the instruction harmless.

Appeal from Circuit Court, Jefferson County; Joseph J. Williams, Judge.

Robert J. McBroom was convicted of buying goods from a minor without consent of parents or guardians, and he appeals. Reversed and remanded.

R. A. Frazier and Frank Dietrich, for appellant. Elliott W. Major, Atty. Gen., and John M. Atkinson, Asst. Atty. Gen., for the State.

FERRISS, J.

Defendant was convicted in the circuit court of Jefferson county under sections 4746 and 4747, R. S. 1909, which read as follows:

"Sec. 4746. Any pawnbroker, junk dealer, dealer in second hand goods or merchant, who shall buy, receive or take any personal property, goods, wares or merchandise, other than agricultural products, of any value from any minor, or have in his possession any personal property, goods, wares or merchandise, so had and obtained without the consent of such minor's parents or guardians, had in writing, shall, upon conviction, be punished by imprisonment in the county jail not less than three months nor more than five months. or by fine of not less than one hundred dollars or more than five hundred dollars, or by both such fine and imprisonment.

"Sec. 4747. For a second offense and conviction under section 4746, the punishment shall be imprisonment for not less than two years or more than three years in the penitentiary."

The indictment charged the commission of the offense defined in section 4746, and also, in the same count in the indictment, alleged a prior conviction of a similar offense. The state introduced evidence tending to prove the prior conviction, and also the present offense charged in the indictment.

The court instructed the jury, in substance, that if they found the former conviction and punishment, and also found the defendant guilty of the present offense charged in the indictment, "then you will find the defendant guilty as he is charged in the first count of the indictment, and will fix his punishment for the same at imprisonment in the penitentiary for not less than two years nor more than three years."

The jury returned the following verdict: "We, the jury, in the case of state of Missouri against Robert J. McBroom, find the defendant, Robert J. McBroom, guilty as he is charged in the first count of the indictment, and we fix his punishment for the same at imprisonment in the penitentiary for a term of two years."

The trial was had on the first count of the indictment only, which, as stated above, charged both the present offense and former conviction. The defendant complains that the instruction given by the court compelled the jury to either convict the defendant under section 4747 or to acquit altogether. It is further claimed that the...