State v. Montgomery
| Decision Date | 10 October 1949 |
| Docket Number | 41559 |
| Citation | 223 S.W.2d 463 |
| Parties | State of Missouri, Respondent, v. Raymond Eugene Montgomery, Alias Red Sanders, Alias Raymond Mardell, Alias Eugene Russell, Alias Jimmie Roberts, and Alias Ray Allen, Appellant |
| Court | Missouri Supreme Court |
From the Circuit Court of the City of St. Louis Criminal Appeal Judge William S. Connor
Affirmed
Upon an amended information Raymond Eugene Montgomery was charged with burglary in the second degree and larceny, with four prior felony convictions and sentences which he served concurrently. A jury found the four prior convictions and the defendant guilty of the burglary and the larceny and assessed his punishment at ten years in the penitentiary for the burglary and an additional five years for the larceny. Mo R.S.A., Secs. 4435, 4445, 4448, 4854. He has not filed a brief upon this appeal and we therefore examine the record and the eighteen assignments of error in his motion for a new trial. Mo. R.S.A., Sec. 4150; State v. Grubbs, (Mo.) 214 S.W. 2d 435.
When Mr. and Mrs. Walter Bauer returned to their apartment at 3304 Halliday after eleven o'clock on the night of January 16 1948 they discovered that their apartment had been burglarized and that certain of their property, including silverware, was missing. About seven-thirty the following morning Mr. Bauer was called to a police station and there identified his property which police officers had found in the defendant's home. The police brought the defendant into a room with Mr. Bauer and the defendant told Mr. Bauer that he had burglarized the apartment and stolen the silverware. He described the iron bar with which he pried the apartment window, the bar was found and it fitted the marks on the window. Unquestionably the state's evidence was sufficient to prove the crime and the defendant's guilt as charged, even though the first four assignments of error in his motion for a new trial that the verdict is against the weight of the evidence and the result of bias and prejudice are insufficient to raise the point. Mo. R.S.A., Sec. 4125; State v. Stucker, 352 Mo. 1056, 180 S.W. 2d 719, 722. Likewise, assignment six, that "the court erred in overruling objections of the defendant to testimony offered by the State, and in admitting into evidence, over the objections and exceptions of the defendant, irrelevant, immaterial, and prejudicial evidence offered by the State," is so general and indefinite that it presents nothing for this court to review. State v. Courtney, 356 Mo. 531, 202 S.W. 2d 72, 74.
The fifth assignment in the motion is that "the punishment assessed is excessive, and not consistent with the competent evidence in the case." It is not clear just what this assignment means. But, as we have said, the jury found the four prior convictions, which the defendant readily admitted when he testified, and the jury also found the burglary and the larceny. The second proviso of the habitual criminal act is "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; * * *." Mo. R.S.A., Sec. 4854. Burglary in the second degree, of which the defendant was found guilty (Mo. R.S.A., Sec. 4435) is punishable by imprisonment from tuo to ten years (Mo. R.S.A., Sec. 4445) and since he also committed a larceny in connection with the burglary and the jury has specifically found that he did the jury properly added to the maximum sentence of ten years for the burglary "in addition to the punishment hereinbefore prescribed for the burglary, not less than two nor exceeding five years." The punishment is not, therefore, excessive, it could not have been less under the jury's finding. State v. Breeden, (Mo.) 180 S.W. 2d 684.
It may be that the statement in assignment five "and not consistent with the competent evidence in the case" refers to and should be considered in connection with assignment seven. The substance of assignment seven is that the habitual criminal act is "inapplicable in a case where the prior convictions upon which the Information is based have resulted in sentences which were not fully served and complied with by the defendant." In this assignment it is also urged that the court erred in not quashing the information because of the inapplicability of the habitual criminal act but we were unable to find any such motion in the record. However, in the record, when proof of the prior convictions was being made defendant's counsel said that he was going to move to quash, and he did object, because the proof did not come within the habitual criminal act in that "it shows his discharge prior to compliance with the sentence, his discharge under seven-twelfths, his conditional release." The appellant's point is that because of his good behavior, while confined in the penitentiary, he was discharged after serving "three-fourths of the time for which he * * * may have been sentenced" and therefore he did not come within the terms of the habitual criminal act "shall be discharged, either upon pardon or upon compliance with the sentence, * * *." Mo. R.S.A., Sec. 4584. The statute (Mo. R.S.A., Sec. 9086) under which he was released without having served the full term for which he was sentenced specifically provides that he "shall be discharged in the same manner as if said convict had served the full time for which sentenced, and in such case no pardon from the governor shall be required; * * *." In the second place, if the assignment is directed to the point that he was discharged on a conditional release or a conditional commutation and therefore did not come within the habitual criminal act, the statute reducing the time of a sentence for good behavior is not a conditional commutation or release and is distinct from other forms of clemency. 41 Am.Jur., Secs. 41-44, p. 914. In any event, it has now been definitely determined that one released on conditional commutation is amenable to prosecution and punishment under the habitual criminal act. State ex. rel. Stewart v. Blair, 356 Mo. 790, 203 S.W. 2d 716. So the punishment was "consistent with the competent evidence" and it was not error to refuse to quash the information.
Assignments eight and nine concern witness Laux and his testimony. Mr. Laux was a deputy clerk and testified from the records to the defendant's prior convictions. It was first objected that Mr. Laux was not competent to testify to the prior convictions because the records were not duly and properly authenticated and Laux was unable to testify as of his own personal knowledge to their accuracy. It was also objected that Laux' name had not been endorsed on the amended information as a witness for the state as required by Mo. R.S.A., Sec. 3894 and, therefore, it was error for the court to permit him to testify. When he was offered as a witness, however, it developed that the state's attorney had given defendant's counsel two weeks' notice that he intended to prove the prior convictions and that the court had given leave to endorse the clerk's name, Mr. Schuler's, on the information. Although defendant's counsel orally objected and stated that he was going to move to quash and, further, ask time to meet the testimony, there was in fact no written motion to quash or a request for a continuance. State v. Boone, 355 Mo. 550, 196 S.W. 2d 794; State v. Derrington, (Mo.) 137 S.W. 2d 468. Furthermore, when the defendant testified he freely admitted the four prior convictions, as well as an additional one in another jurisdiction. In that circumstance the defendant's rights could not have been prejudiced and it was not error to overrule assignments of error eight and nine. State v. Hacker, (Mo.) 214 S.W. 2d 413; State v. Marlin, (Mo.) 177 S.W. 2d 485; State v. Kimbrough, 350 Mo. 609, 166 S.W. 2d 1077.
Assignments ten and thirteen in the motion are directed to the court's failure to instruct the jury to disregard certain evidence and to discharge the jury because of a voluntary statement by one of the state's witnesses. In one the defendant says that the court refused to instruct the jury to disregard the police sergeant's answer to this question We have been unable to find that answer in Sergeant O'Neal's testimony. In cross-examination of the defendant the state's attorney asked: The trial court sustained defense counsel's objection to the form of the question and there was no further or other objection or request for action on the part of the court. On cross-examination of the defendant's wife the state's attorney asked this question: The court promptly sustained an objection to the question and there was no further objection or motion directed to the court. State v. Hepperman, 349 Mo. 681, 162 S.W. 2d 878, 888. The other assignment is that the court erred in refusing to discharge the jury when Officer McGauley testified: We do not find this precise answer in the record but in questioning the police officer as to why he went to the defendant's residence the officer said: "Mr. Montgomery was implicated in different burglaries over the city." Upon objection the state's attorney agreed that the answer should be stricken...
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