State v. Sumpter

• Citation: 73 S.W.2d 760,335 Mo. 620
• Decision Date: 09 July 1934
• Docket Number: 33432
• Parties: The State v. Buddy Sumpter, Plaintiff
• Court: Missouri Supreme Court

73 S.W.2d 760

335 Mo. 620

The State v. Buddy Sumpter, Plaintiff

No. 33432

Supreme Court of Missouri

July 9, 1934

Writ of error to Dent Circuit Court; Hon. J. H. Bowron Judge.

Judgment modified and affirmed.

Clyde C. Cope for plaintiff in error.

(1) If the defendant is to be brought within the provisions of Section 4461, Revised Statutes 1929 (habitual criminal section), it is necessary to incorporate in the information a definite allegation that the defendant (a) on some date prior to the filing of the information (b) was convicted of a felony (c) and was discharged, either upon pardon or upon compliance with the sentence (d) and afterward committed the crime charged in the information. The information in this case is not sufficient in these respects because it does not give the date when defendant was sentenced and does not give the date when he was discharged and does not allege that the crime charged in the information was committed after the discharge. Sec. 4461, R. S. 1929; State v. Dalton, 23 S.W.2d 1; State v. Austin, 113 Mo. 538; State v. Kilcullen, 301 Mo. 284, 256 S.W. 739; State v Manecke, 139 Mo. 548, 41 S.W. 223. (2) A proper averment under Section 4461 (Sec. 3702, R. S. 1919), does not constitute a separate charge, but authorizes additional punishment if the jury finds the defendant guilty under the principal charge and also finds that he has theretofore been convicted of a felony. State v. Long, 324 Mo. 205 22 S.W.2d 811. (3) Before the trial court can legally pronounce sentence under Section 4461, which provides very severe penalties for conviction of a second (or subsequent) felony, there must be a finding by the trial jury of the facts which authorize such sentence. State v. Dalton, 23 S.W.2d 5; State v. Schneider, 325 Mo. 486, 29 S.W.2d 700; State v. Baldwin, 214 Mo. 306, 113 S.W. 1123. (4) The plain meaning of the verdict returned in our case is that the defendant was found guilty of the felonious assault as charged in the information. That was the only crime charged in the information which the jury was considering, and of which they could find him guilty. The averments as to the former conviction presented no charge calling for a verdict of guilt. The State simply claimed that defendant had at some other time by some other jury been found guilty of another crime, viz: carrying concealed weapons, with which he had been charged in another information previously filed. Did the jury in this case try to pass on both these crimes? If the court had requested them to make their findings more definite, would they have inserted after the word guilty the words "of felonious assault," or would they have inserted the words "of having been sentenced for carrying concealed weapons and discharged as stated in the information," or would they have inserted both these findings? Who knows? The defendant is entitled to a concurrence of the minds of twelve jurors, and the verdict must be definite, certain, responsive and free from ambiguity. State v. Jackson, 242 Mo. 410, 146 S.W. 1166; State v. Reeves, 276 Mo. 353, 208 S.W. 87. (5) The courts cannot substitute their findings for those of the juries; and the finding of every material fact the jury must make for themselves. State v. Snyder, 98 Mo. 555, 12 S.W. 369; State v. McGee and McGraw, 181 Mo. 312, 80 S.W. 899; State v. Dewitt, 186 Mo. 61, 84 S.W. 956.

Roy McKittrick, Attorney-General, and Frank W. Hayes, Assistant Attorney-General, for defendant in error.

(1) The court did not err in holding that the information alleged sufficient facts to authorize the assessing of an increased punishment under Section 4461, Revised Statutes 1929. Sec. 4461, R. S. 1929; State v. Asher, 246 S.W. 913; State v. Manicke, 139 Mo. 545. (2) The court did not err in holding that the verdict was sufficient in form and substance so as to sustain the judgment rendered by the court. State v. English, 274 S.W. 474; State v. Baldwin, 214 Mo. 306; State v. McBride, 68 S.W.2d 690. (3) The judgment rendered by the trial court was proper. Secs. 3704, 4014, 4461, R. S. 1929; State v. English, 274 S.W. 470. (4) In no event is the plaintiff in error entitled to a new trial. Sec. 3765, R. S. 1929; State v. Gordon, 153 Mo. 576; State v. Hesterly, 178 Mo. 43.

Ellison P. J.

OPINION

Ellison, P. J.

The defendant was convicted in the Circuit Court of Dent County of the crime of assault with intent to kill in shooting one Carroll. The information charged him under the Habitual Criminal Statute (so-called), Section 4461, Revised Statutes 1929, reciting that he had previously been convicted of carrying concealed weapons. By the terms of said Section 4461, this subjected the defendant to the maximum punishment for the felonious assault charged, which, under Section 4014, Revised Statutes 1929, may extend to life imprisonment in the penitentiary.

But the jury by their verdict assessed his punishment at imprisonment in the penitentiary for a term of only seven years. The trial court rejected the verdict to that extent, on the ground that the punishment was "not authorized by law," and fixed it at life imprisonment. The defendant brings up the record proper by writ of error, contending: (1) the information was insufficient to constitute a valid charge under the Habitual Criminal Statute; (2) and the judgment and sentence imposed by the court were not supported by the verdict or authorized by law.

I. First, as to the information. The Habitual Criminal Statute, Section 4461, provides in substance that if a person be convicted of an offense punishable by imprisonment in the penitentiary, and be discharged, either upon pardon or upon compliance with the sentence, and be subsequently convicted of another offense committed after such pardon or discharge, he shall receive the maximum punishment fixed for such second offense (up to and including life imprisonment). To bring a criminal prosecution within the statute it is held the information or indictment must allege and the proof must show not only the former conviction of the defendant but also his discharge by pardon or compliance with the sentence; and it must also be alleged and proven that the offense charged was committed after such former conviction and discharge. [State v. Austin, 113 Mo. 538, 542, 21 S.W. 31, 32; State v. Asher (Mo.), 246 S.W. 911, 913; State v. Schneider, 325 Mo. 486, 492, 29 S.W.2d 698, 700.]

The part of the information in this case bearing on the appellant's former conviction alleged:

"That on the 9th day of April, 1931 (the appellant) Buddy Sumpter was convicted in the Circuit Court of Dent County, Missouri, upon a felony charge of carrying concealed weapons, and was by said court sentenced to a term of two years in the state penitentiary and was on the day of , 1931, delivered by the then sheriff of said county to the Warden of said penitentiary and confined in said institution and that he was on the day of , 19 , discharged from the said penitentiary of the State of Missouri under the terms of said sentence and the rules of said penitentiary."

From this it will be seen the information does not specify the date of the appellant's discharge from the penitentiary on his former conviction other than to say it was on "the day of , 19 ." Following this the information alleges (this part we have not set out above) that the felonious assault charged in this case was committed on or about the 19th day of August, 1933; but it is not stated that this was after the discharge. Appellant's position is that since the information leaves the date of the discharge wholly blank and does not say the assault was committed thereafter, it is fatally defective and insufficient to support a conviction under the Habitual Criminal Statute, in view of the cases cited above, and others.

We are constrained to rule in favor of the appellant's contention. The cases are clear and uniform in holding an information under the Habitual Criminal Statute must allege the discharge of the defendant under his former conviction by pardon or compliance with the sentence before the commission of the offense charged in the information. On this point see the discussion and cases cited in State v. Schneider, 325 Mo. l. c. 492, 29 S.W.2d 700. The statute, itself, in terms applies only to offenses committed subsequent to such former conviction and discharge. And, as indicated in State v. Asher, 246 S.W. l. c. 913, there is good reason for it. A defendant might be discharged by habeas corpus thus nullifying the former conviction, conceivably even after the commission of the second offense. Hence the statute requires his discharge under the prior conviction by pardon or compliance with the sentence -- in other words in a manner recognizing his guilt and the validity of the first conviction -- before the commission of the second offense, as a condition precedent to the infliction of the severe punishment called for by the Habitual Criminal Statute.

We are of the opinion that the information in this case is fatally defective, with respect to the foregoing essential allegation. It says the appellant was discharged from the penitentiary on the day of , 19 . That is not much better than if no effort at all had been made to fix the time. It wholly fails to allege the discharge from the former conviction occurred before the commission of the offense charged in the information. In arguing against this conclusion the State's brief points out that the information does allege the defendant was convicted of the former offense on April 9, 1931, and it is contended the two-year sentence then imposed would have expired on April 9 1933, even if served in full, whereas the date of the second offense -- the felonious assault charged in the instant case -- is alleged to have been...