State v. Payne

• Decision Date: 23 November 1909
• Citation: 223 Mo. 112,122 S.W. 1062
• Parties: STATE v. PAYNE.
• Court: Missouri Supreme Court

122 S.W. 1062

223 Mo. 112

STATE v. PAYNE.

Supreme Court of Missouri, Division No. 2.

November 23, 1909.

1. CRIMINAL LAW (§ 206) — PRELIMINARY EXAMINATION — STATUTES — RETROACTIVE OPERATION.

Since the act securing the right of a preliminary examination did not become effective until July 14, 1907, accused was not entitled to a preliminary examination in a prosecution for larceny under an information filed April 1, 1907.

2. CRIMINAL LAW (§ 1167) — APPEAL — HARMLESS ERROR — RULINGS ON INFORMATION.

Under Rev. St. 1899, § 2522 (Ann. St. 1906, p. 1503), providing that, if two indictments for the same offense be pending against an accused at the same time, the indictment first found shall be deemed suspended and shall be quashed, and that the first information was not formally quashed on the record when the amended information was filed, is not available as a ground for reversal on appeal.

3. CRIMINAL LAW (§ 1202) — EVIDENCE — ADMISSIBILITY — FORMER CONVICTIONS.

Under Rev. St. 1899, § 2379 (Ann. St. 1906, p. 1461), imposing an additional punishment upon one who has previously been convicted for an offense punishable by imprisonment in the state penitentiary and discharged, upon his subsequent conviction, in a larceny prosecution the state could plead accused's former conviction for grand larceny and imprisonment in, and discharge from, the state penitentiary, and could show such fact by the record in the former prosecution and the penitentiary records showing service of the sentence imposed.

4. WITNESSES (§ 359) — IMPEACHMENT — FORMER CONVICTION.

In a larceny prosecution, the court records, showing accused's former conviction for larceny, and the state penitentiary records, showing her service of sentence and discharge, were competent to impeach accused's testimony.

5. CRIMINAL LAW (§ 1204) — EVIDENCE — IDENTITY.

In a larceny prosecution, in which the information charged an aggravated offense under the habitual criminal statute (Rev. St. 1899, § 2379 [Ann. St. 1906, p. 1461]), the state penitentiary records were admissible to identify accused as the person who had served sentence in the penitentiary under the former conviction.

6. CRIMINAL LAW (§ 1172) — APPEAL — HARMLESS ERROR — INSTRUCTIONS — PREJUDICIAL EFFECT.

In a larceny prosecution, under an information containing a count under the habitual criminal statute (Rev. St. 1899, § 2379 [Ann. St. 1906, p. 1461]), error in an instruction submitting the case on that count for not requiring a finding that the larceny was committed in the county of the venue did not prejudice accused, where she was not convicted under the statute.

7. CRIMINAL LAW (§ 741) — PROVINCE OF COURT AND JURY — WEIGHT OF EVIDENCE.

Where the evidence tended to prove every material fact necessary to conviction, requested instructions in the nature of demurrers to the evidence were properly refused.

8. CRIMINAL LAW (§ 829) — INSTRUCTIONS — REQUESTS — CHARGES ALREADY GIVEN.

Requested charges, which were covered by charges given by the court, were properly refused.

9. CRIMINAL LAW (§ 1137) — APPEAL — ESTOPPEL TO ALLEGE ERROR — INVITED ERROR.

Under Rev. St. 1899, § 2535 (Ann. St. 1906, p. 1509), providing that the judgment shall not be affected by any error committed at the instance of defendant, accused cannot complain on appeal of a charge given for her.

Appeal from Circuit Court, Pettis County; Louis Hoffmann, Judge.

Susie Payne was convicted of larceny, and she appeals. Affirmed.

C. C. Kelly, for appellant. E. W. Major, Atty. Gen., and Chas. G. Revelle, Asst. Atty. Gen., for the State.

GANTT, P. J.

This prosecution was commenced by an information filed by the prosecuting attorney of Pettis county, charging the defendant with larceny from the person of Homer Arnold in the nighttime. Afterwards on April 1, 1907, an amended information was filed charging the defendant with the same offense, with the addition of a charge of a former conviction of the same offense, and that she had been imprisoned in the penitentiary, and, having fully complied with the sentence, had been discharged therefrom. After unavailing motions to quash and strike out certain portions of the information, the...