State v. Mosier

• Decision Date: 11 March 1937
• Docket Number: No. 34868.,34868.
• Citation: 102 S.W.2d 620
• Parties: STATE v. MOSIER.
• Court: Missouri Supreme Court

102 S.W.2d 620

STATE v. MOSIER.

No. 34868.

Supreme Court of Missouri, Division No. 2.

March 11, 1937.

Appeal from St. Louis Circuit Court; William S. Connor, Judge.

Patrick Paul Mosier, alias Mosley, was convicted of robbery in the first degree by means of a dangerous and deadly weapon, and he appeals.

Reversed and remanded.

W. Jack Moore, of St. Louis, for appellant.

Roy McKittrick, Atty. Gen., and Covell R. Hewitt, Asst. Atty. Gen., for the State.

ELLISON, Judge.

The appellant was convicted in the circuit court of the city of St. Louis of robbery in the first degree by means of a dangerous and deadly weapon (sections 4058 and 4061, R.S.Mo.1929, Mo.St.Ann. §§ 4058, 4061, pp. 2856, 2863) committed upon one William J. Hufnagel, and his punishment fixed at imprisonment in the penitentiary for thirty-five years. He was granted a new trial and on the second trial was again convicted and his punishment assessed by the jury at fifteen years imprisonment in the penitentiary. From the judgment on that verdict he appeals, complaining of the assistant circuit attorney's voir dire examination of the jury panel; of the restriction of his counsel's cross-examination of the prosecuting witness; and of the assistant circuit attorney's closing argument to the jury and the trial court's rulings on his objections and requests with respect thereto.

The information upon which the appellant was tried was drawn under the so-called habitual criminal statutes, sections 4461, 4462, R.S.Mo.1929, Mo.St.Ann. §§ 4461, 4462, pp. 3063, 3066; and alleged one prior conviction of felonious assault in the state of Washington, and another of carrying concealed weapons in the state of Missouri. This latter was stricken out before the trial started; and the entire habitual criminal charge was finally abandoned, the cause being submitted to the jury only under instructions on robbery in the first degree by means of a dangerous and deadly weapon. The state further waived the death penalty which could have been assessed under section 4061, supra, and by the instructions the jury was authorized to fix the punishment (on a finding of guilt) only at imprisonment in the penitentiary for ten years or more.

The prosecuting witness, Hufnagel, testified that about 9 o'clock on the night of May 1, 1932, he had stopped his Chevrolet sedan at the intersection of Lynch street and Jefferson avenue in St. Louis in obedience to a traffic sign, when the appellant and a man named Level came to the left and right sides of his car, both presenting pistols, and compelled him to admit them; that the appellant drove the automobile into an alley not far west of Jefferson avenue where the two men put him out and departed with the car. He reported the robbery to the police and gave a description of the robbers. The automobile was found late that night and two days thereafter the police called him to the Carondolet station where he identified the appellant and Level, who were in custody. The appellant did not testify, but in his behalf it was shown there were some discrepancies between the testimony of the prosecuting witness at the preliminary hearing and his testimony at the trial, which tended to cast doubt on the certainty of his identification and, perhaps, on his credibility.

I. The first assignment of error complains of the state's voir dire examination of the jury panel. The assistant circuit attorney told the panel the punishment for robbery by means of a dangerous and deadly weapon could, under the statute, be death; but that the state was waiving the death penalty and basing the prosecution on the habitual criminal statute, whereunder, on proof (believed beyond a reasonable doubt) of appellant's conviction of the prior felony alleged, service of sentence and discharge, and of the robbery charged, the punishment assessed must be life imprisonment in the penitentiary—no more, no less. Appellant's counsel objected repeatedly to the assistant circuit attorney's exposition of the law relating to punishment under the habitual criminal statute, asserted the law was not as the assistant circuit attorney had stated it, and insisted such declarations should be left to the court's instructions.

But all these objections were overruled, and the assistant circuit attorney, after ineffectually requesting the court to "tell this jury what his instructions will be," repeated to the panel substantially the statements aforesaid. He then proceeded to poll the members of the panel and to ask each by name whether he conscientiously could and would follow the court's instructions on that point, and whether he felt the habitual criminal statute was "fair" or a "good law." All this elaboration about the punishment made mandatory by the habitual criminal statute covers some ten typewritten pages of the bill of exceptions, and yet, when it came to the introduction of evidence, the state made absolutely no effort to prove the appellant's prior conviction of a felony and offered no excuse or explanation of any sort for its failure to bring the case within the statute.

At the close of the evidence the court gave an instruction No. 4 which told the jury they "must disregard any questions or remarks of the assistant circuit attorney relative to any former conviction of this defendant, because the State has failed to produce evidence tending to show a former conviction of this defendant."

We are unwilling to reverse and remand the case on this assignment of error, because the objections made below were not broad enough to cover all that is urged under the assignment here. But we feel we ought to say counsel for the state do appear to be subject to censure. We have held more than once that the sole purpose of the habitual criminal statutes is to make the punishment for a crime heavier in the case of an "habitual criminal" or second offender; and that the fact of the accused's prior conviction of another felony can be shown only for that purpose, or for the purpose of impeaching him as a witness when he has testified in the case. The showing cannot be made for the purpose of inducing a finding of guilty by the jury ex ipsa re deductis. In this instance the appellant did not testify, and the habitual criminal part of the charge was abandoned.

It is true we have also held that even though the defendant be prosecuted under the habitual criminal statutes still the jury may convict him as a first offender under the general statutes, on the information filed, when they find the issues against the state on the allegation as to the prior conviction, or where the state abandons that part of its case. But in so drawing and filing the information the prosecutor must act in good faith. He cannot proceed before the jury under the habitual criminal statutes when he has no means and intention of relying thereon. We did rule in State v. Rickart (Mo.Sup.Div. 2) 81 S.W.(2d) 309, 312, the mere fact that the state offered no proof of a prior conviction was not enough to convict the prosecutor of bad faith in alleging it. But there no prominence was given to the prior conviction in the examination of the jury panel. All that was done was that the information containing the allegation was read to the jury.

In the instant case the fact of the former conviction was accented in the voir dire examination, and thereby a correlative obligation was imposed on the state to deal fairly with the defendant. As we held in the Rickart Case, supra, at that stage of the trial neither the defendant nor the court is in a position to challenge the state's right to refer to the alleged prior conviction for the purpose of qualifying a jury, because it is to be assumed the prosecutor will attempt to prove what he asserts. However, it seems that when the prosecutor abandons that part of his case or closes without adducing proof of the alleged prior conviction, defendant's counsel ought to speak up and raise the question of good faith if they desire to make the point, thereby giving the state a chance to explain the reason for the omission; and, of course, proper exceptions should be saved to any adverse ruling. Nothing of that sort was done in this case. We do not feel that the cause should be reversed and remanded on the record as it stands.

But, speaking further as to the right of the assistant circuit attorney to expound to the jury panel the law relating to punishment under the habitual criminal statutes. We do not agree with the appellant that he stated the law incorrectly. He was right when he said that if the state proved beyond a reasonable doubt the appellant's prior conviction of felonious assault in the state of Washington, service of sentence thereunder and discharge, and also commission of the robbery in this state for which he was on trial, the jury would be duty bound to assess his punishment at life imprisonment in the Missouri penitentiary. State v. Bagby, 338 Mo. 951, 93 S.W.(2d) 241, 250. Neither was it error for the assistant circuit attorney to ask the jury panel whether they conscientiously could and would follow the court's instructions requiring the imposition of that punishment if they believed beyond a reasonable doubt the state had made a case under the habitual criminal statute. In those circumstances they would have no discretion in the matter. State v. Taylor, 323 Mo. 15, 26, 18 S.W.(2d) 474, 478.

It was not, however, good practice for the prosecutor to assume to declare to the jury panel the law governing punishment under the habitual criminal statutes, especially over appellant's objection; and to call upon the court then and there to disclose what its instructions on that point would be. The correct procedure is for counsel to ask the members of the panel whether, if the court later instructs them in a specified manner, they have any opinion or conscientious scruples such as would prevent them from returning a verdict accordingly —in the present instance, a verdict fixing the...