State v. St. Clair

• Decision Date: 12 October 1953
• Docket Number: No. 43737,No. 1,43737,1
• Citation: 261 S.W.2d 75
• Parties: STATE v. ST. CLAIR
• Court: Missouri Supreme Court

Page 75

261 S.W.2d 75

STATE v. ST. CLAIR.

No. 43737.

Supreme Court of Missouri, Division No. 1.

Oct. 12, 1953.

William K. Stanard II, St. Louis, for defendant-appellant.

John M. Dalton, Atty. Gen., Julian L. O'Malley, Asst. Atty. Gen., for respondent.

COIL, Commissioner.

A jury found defendant guilty of first degree robbery by means of a dangerous and deadly weapon, found that defendant had six prior felony convictions as charged in an amended information, and fixed his punishment at life imprisonment in the penitentiary. Defendant's sole contention on this appeal is that the trial court committed reversible error in admitting in evidence certain records offered for the ostensible purpose of establishing prior felony convictions in Arizona and Texas under the Habitual Criminal Act.

The state showed that on August 27, 1951, defendant took from the assistant pastor, money belonging to his church, and used in the perpetration of the robbery a sword and a knife. Defendant was positively identified. He offered no evidence.

The trial court, over defendant's objection, admitted duly authenticated records from the State of Arizona. These records, read to the jury, showed that on March 5, 1925, defendant was convicted in Arizona of forgery and was sentenced to from 1-5 years in the penitentiary; that on May 15, 1925, he 'Escaped while working as a trusty outside'. Under the heading of 'Remarks' was this: 'Detainer released 7-19-1930 by Superintendent, Arizona State Prison.' Also admitted, over defendant's objection, were duly authenticated records of the State of Texas. These records, read to the jury, showed that on February 9, 1931, in a case numbered 5185-C, defendant was convicted of burglary and sentenced to from 2-3 years in the penitentiary and, on the same day, in a case numbered 5186-C, was convicted of another burglary and sentenced to from 2-3 years in the penitentiary, the sentence to run concurrently with that in case 5185-C; that on May 9, 1932, in a case numbered 5504-C, defendant was convicted of theft over and sentenced to two years in the penitentiary, such sentence to run 'cumulative' with, and to begin at the expiration of, the sentence in case 5185-C. Under the heading 'Expiration of Sentence' was this: 'Rel'd from prison on Bench Warrant and ret'd to Prison with a new conviction as No. 70769.' (In reading the exhibit to the jury, the words following 'Warrant' were omitted.) The state also proved defendant's prior convictions in Missouri for burglary and larceny and that defendant was discharged under commutation of sentence by the governor on May 4, 1950. On the Missouri prison record, admitted to show discharge, was the notation: 'Wanted by Texas State Pen. Huntsville, Texas, 11-8-47.'

It is defendant's contention that the Arizona and Texas records failed to prove discharge from those penitentiaries 'either upon pardon or upon compliance with the sentence' as required by the Habitual Criminal Act, RSMo 1949, Secs. 556.280-556.290, V.A.M.S. If, as defendant contends, it is necessary to prove that a defendant has been discharged either upon pardon or compliance with the sentence even though the prior felony was committed in another state, then it is apparent that the state's proof failed to bring the Arizona and Texas convictions within the provisions of the Act. This, for the reason that those records failed to show a discharge from the penitentiary upon pardon or upon compliance with the respective sentences. As has been noted, the Arizona record affirmatively showed that there was neither pardon nor compliance with sentence; but, on the contrary, showed that defendant escaped some two months after his incarceration, and that he was never returned to the Arizona penitentiary. As has also been noted, the Texas record showed no discharge from either of the sentences; but, on the contrary, showed only a temporary release from the penitentiary on a bench warrant (in all probability issued to permit the presence of defendant in court to answer the charge on which he was convicted on May 9, 1932).

Section 556.280 provides in part that 'If any person convicted of any offense punishable by imprisonment in the penitentiary, * * * shall be discharged, either upon pardon or upon compliance with the sentence, and shall subsequently be convicted of any offense committed after such pardon or discharge, he shall be punished as follows: * * *.' (Italics ours.) We have repeatedly held that an information or an indictment charging a defendant with a prior conviction under the Act must allege, and that the proof must show, not alone the prior conviction but also that defendant was discharged either by pardon or by compliance with the sentence and, of course, that the offense for which he is being tried was committed after such prior conviction and discharge. State v. Harrison, 359 Mo. 793, 794, 223 S.W.2d 476, 478; State v. Sumpter, 335 Mo. 620, 622, 73 S.W.2d 760, 761; State v. Schneider, 325 Mo. 486, 493, 29 S.W.2d 698, 700. 'Several of our decisions have speculated on the reasons underlying the requirement in our statute that a second offender must have been discharged from the prior sentence either by pardon or compliance therewith. The Austin [State v. Austin, 113 Mo. 538, 21 S.W. 31], Asher [State v. Asher, Mo.Sup., 246 S.W. 911] and Sumpter cases recognize the reasoning of the Wood case [Wood v. People, 53 N.Y. 511] from New York, * * * which held that until the prior sentence had been fully discharged by pardon or expiration, there always would be the possibility that it might be adjudged void ab initio, as by habeas corpus or other writ, in which event the prisoner would be cleared as second offender after he had already been subjected to punishment as such.' State v. Brinkley, 354 Mo. 1051, 1074, 193 S.W.2d 49, 59.

In State v. Christup, 337 Mo. 776, 85 S.W.2d 1024, 1025, defendant was charged with first degree robbery by means of a dangerous and deadly weapon, and was also charged under the Habitual Criminal Act with theretofore having been convicted and sentenced to the Colorado penitentiary for aggravated robbery. The information, in charging the prior conviction, alleged that defendant 'was duly imprisoned in said penitentiary of the State of Colorado in accordance with said sentence, and that the said George Christup alias etc., escaped from said penitentiary of the State of Colorado after...