State v. Moore

• Decision Date: 08 May 1894
• Parties: The State v. Moore, Appellant
• Court: Missouri Supreme Court

26 S.W. 345

121 Mo. 514

The State v. Moore, Appellant

Supreme Court of Missouri, Second Division

May 8, 1894

Appeal from St. Louis Criminal Court. -- Hon. H. L. Edmunds, Judge.

Affirmed.

Chas T. Noland for appellant.

R. F Walker, Attorney General, and C. O. Bishop for the state.

(1) The indictment is not bad for duplicity, since the offenses of burglary and larceny may properly be charged in the same count. R. S. 1889, sec. 3529. The burglary is charged in the language of the statute. R. S. 1889, sec. 3520. The charging of a former conviction is not the charging of another offense. "It is only the averment of a fact which may affect the punishment. The jury do not find the prisoner guilty of the previous offense; they only find that he was previously convicted of it as a historical fact." Regina v. Clark, 6 Cox Crim. Cases, 210. The indictment, to sustain such second prosecution, must specially aver the prior conviction. Wharton's Crim. Pl and Prac. [9 Ed.], sec. 935; 1 Bishop, Crim. Law [6 Ed.], sec. 961; Maguire v. State, 47 Md. 485, loc. cit. 496. Such former conviction should be averred in such a manner that it may be traversed and put in issue. Plumbly v. Com., 2 Metcalf (Mass.) 413. Especially in this state, where the court has no power to assess the punishment, except in cases of confession, or where the jury fail to assess it in their verdict. R. S. 1889, sec. 4230. (2) The statute (sec. 3959) imposing a greater punishment for a second offense is not in violation of the constitution, either as putting a person twice in jeopardy or as prescribing different punishments for different persons committing the same offense. People v. Stanley, 47 Cal. 113; Rand v. Com., 9 Grattan (Virginia), 738; Plumbly v. Com., 2 Metc. (Mass.) 413; Ingalls v. State, 48 Wis. 647; Maguire v. State, 47 Md. 485. (3) The charge of the first conviction is in the language of the statute. R. S. 1889, sec. 3959. (4) The court did not err in proceeding with the trial "after defendant had, in the presence of the jury, charged the judge with being biased and prejudiced against him." There is nothing in the record to show that the defendant made any such charge against the court, either in or out of the presence of the jury. The statute provides the only manner in which a judge may be disqualified. R. S. 1889, sec. 4174; State v. Turlington, 102 Mo. 642. Otherwise, every defendant could secure a postponement of his trial by waiting until a jury is called, and then, ore tenus, charging the court with prejudice. Such practice could not be tolerated. (5) The court did not err in "forcing defendant to trial without counsel." The record and the affidavit of appellant both show that on the contrary the court offered to assign counsel to appellant, but appellant refused to accept. The statute (sec. 4140) only requires the court to appoint counsel "at his (the prisoner's) request." If the contention of appellant be sustained, then a prisoner can delay his trial indefinitely by refusing to accept assignment of counsel. (6) The court did not err in "forcing defendant to trial without the presence of defendant's witnesses." The affidavit of appellant asserts that he desired witnesses to prove that the front door of the house was always left open at night. There was no evidence on the part of the state that the front door was closed, and the court instructed the jury that there was no evidence of any breaking of an outer door. The contention of appellant (who claims to be versed in criminal law, probably by reason of his criminal experience) was that if he did not break the outer door, he was in nowise guilty of burglary. (7) The statute (sec. 3959) providing that, "after his discharge, either by pardon or by compliance with his sentence," only means that it is a matter of indifference whether a sentenced convict has fully served his term or has been pardoned, if he commits a second offense. A pardon will not relieve him of the odium of a former conviction, nor place him in statu quo before former conviction. Mount v. Com., 2 Duval (Kentucky), 93. Proof that a sentenced convict has been delivered to the keeper of the penitentiary in accordance with the sentence, and that the period of confinement has elapsed years before the second offense was committed, will raise the presumption of compliance with the sentence. This case presents a very different state of facts from State v. Austin, 113 Mo. 538.

OPINION

Burgess, J.

Defendant was indicted in the St. Louis criminal court for burglary in the first degree and larceny in a dwelling house. The indictment charged that defendant "on the eleventh day of January, A. D. 1887, at the city of St. Louis, in the St. Louis criminal court, was duly convicted, on his own confession, of the offense of grand larceny, and in accordance with said confession was duly sentenced by said court to imprisonment in the penitentiary for the term of three years, and was duly imprisoned in said penitentiary in accordance with said sentence; and that the said Frank Moore, after his discharge from said penitentiary upon compliance with said sentence, to wit, on the twenty-fifth day of May, A. D. 1893, etc,, did commit the said offenses of burglary and larceny." Defendant was arraigned at the July term, 1893, and pleaded not guilty.

At the November term following, defendant withdrew his plea of not guilty, and filed his motion to quash the indictment, which being overruled, he was again arraigned, pleaded not guilty, was put upon his trial, which resulted in his conviction of burglary in the second degree, his punishment being fixed at imprisonment in the penitentiary for life. From the judgment and sentence he appeals.

The evidence showed that defendant had been convicted, on his plea of guilty in open court, of grand larceny, for which he had been sentenced to, and had served a term in, the Missouri penitentiary; that afterwards, on the night of the twenty-sixth day of May, 1893, he had entered into the dwelling house of one S. M. Tucker, in the city of St. Louis, through the outer door, which does not appear to have been closed, then into the room occupied by one Mr. Stephens and another, by raising the latch or turning the knob on and opening the door which led therein and which was closed; that he took and stole from Stephens about $ 34 in money and a watch worth $ 45. The watch was found upon defendant's person when he was arrested; the money, he admitted to have thrown away. He was discovered when making his exit from Stephens' room, by a Mr. Love who was occupying the room with Stephens. Stephens followed him out into the hallway and while attempting to restrain him, was shot in the face by defendant with a pistol which defendant had in his hand. Stephens and Love got him down, however, and held him until a policeman came and took him into custody. On the trial he admitted the larceny but denied the burglary. No brief has been filed in his behalf.

In the motion to quash the indictment, the contention is that it is bad; first, because in violation of both the state and federal constitutions; second, that it is bad because of duplicity. It is difficult to conjecture wherein or in what manner the statute (sec. 3959, R. S. 1889), imposing a greater punishment for a second criminal offense, is in violation of the constitution, either as putting a person twice in jeopardy or as prescribing different punishments for different persons committing the same offense. The clauses of the constitution of the United States, which we suppose it was contended were violated, are those which provide, first, that "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;" and, second, "nor cruel and unusual punishment inflicted."

In a case similar to the one in hand and under a similar statute it was held (People v. Stanley, 47 Cal. 113) that because the punishment for the second offense is increased because of a prior conviction for another offense, the accused is not punished twice for...