State v. Terry

• Decision Date: 08 June 1959
• Docket Number: No. 47162,No. 1,47162,1
• Citation: 325 S.W.2d 1
• Parties: STATE of Missouri, Respondent, v. Doris TERRY, Appellant
• Court: Missouri Supreme Court

Page 1

325 S.W.2d 1

STATE of Missouri, Respondent, v. Doris TERRY, Appellant.

No. 47162.

Supreme Court of Missouri, Division No. 1.

June 8, 1959.

Wayne W. Waldo, Waynesville, for appellant.

John M. Dalton, Atty. Gen., James E. Conway, Asst. Atty. Gen., for respondent.

COIL, Commissioner.

Doris Terry was convicted of burglary in the first degree and of forcible rape and sentenced in accordance with the jury's separate verdicts to five years in the penitentiary for each crime. Defendant appealed but has filed no brief. We, therefore, shall rule the 25 assignments of error in his motion for new trial.

Prior to a consideration of those assignments, however, we examine a matter which relates to the validity of the jury's verdicts which found defendant guilty of two separate and distinct felonies and on each of which defendant was sentenced to five years in the penitentiary.

The information upon which defendant was tried was:

'Arthur B. Cohn, Prosecuting Attorney of Pulaski County, Missouri, being duly sworn upon his oath states and informs the court that on the 29th day of March, 1958, in said County of Pulaski, State of Missouri, the defendant, Doris Terry, did then and there with specific criminal intent, wilfully, intentionally, unlawfully, maliciously, deliberately, Feloniously on purpose and of his malice aforethought

'Court I

Break and enter the dwelling house of Lettie Varner at which time the said Lettie Varner being therein with the intent to commit a felony, by raping or attempting to rape the said Lettie Varner, by forcibley bursting and breaking the outer door of said dwelling house and the bolt thereof; and did

'Count II

rape the said Lettie Varner by forcibly ravishing the said Lettie Varner, by taking his private parts and penetrating the private parts of the said Lettie Varner without her consent, contrary to the form of statute in such cases made and provided and against the peace and dignity of the State of Missouri.'

As authorized by the court's instructions, the jury returned two verdicts, which were 'We, the jury, find the defendant guilty of burglary in the first degree and assess his punishment at imprisonment in the State Penitentiary for a term of five years.'

'We, the jury, find the defendant guilty of rape, as charged in the second count of the Information, and assess his punishment at imprisonment in the State Penitentiary for a term of five years.'

Thereafter the court sentenced defendant to the penitentiary for five years on each conviction with no provision that the sentences run concurrently. We need not decide whether the crimes of first-degree burglary and forcible rape ever may be properly charged in the same indictment or information. See, however, State v. Link, 315 Mo. 192, 286 S.W. 12; State v. Christian, 253 Mo. 382, 392, 161 S.W. 736. 739. The fact is that defendant did not attack the instant information either prior to, during, or subsequent to trial. It is the law that the joinder of distinct felonies does not render the indictment or information in which they are joined bad as a matter of law. State v. Gholson, Mo., 292 S.W. 27, 28[2-5]. Thus any question as to the validity of the information in so far as concerns the joinder therein of distinct felonies was resolved by defendant's failure to have raised that question

Our present concern is with the fact that defendant was convicted at the same trial of two distinct felonies. The established rule in this state is that a defendant may not properly be convicted at the same trial of two distinct felonies except in those instances specifically provided for by statute. RSMo 1949 Sec. 560.110, V.A.M.S. See also 42 V.A.M.S. Supreme Court Rule 24.04. State v. Preslar, 316 Mo. 144, 290 S.W. 142; State v. Gholson, supra, 292 S.W. 27, 28[2-5]; State v. Link, supra, 286 S.W. 12, 14; State v. Brown, 317 Mo. 361, 365, 296 s.W. 125, 126[3, 4]; State v. Collins, 297 Mo. 257, 266, 248 S.W. 599, 602; State v. Guye, 299 Mo. 348, 366, 252 S.W. 955, 959[3, 4]; State v. Carragin, 210 Mo. 351, 369, 109 S.W. 553, 558, 16 L.R.A.,N.S., 561; State v. Morelock, Mo., 291 S.W. 1078; State v. Murphy, 320 Mo. 219, 6 S.W.2d 877, 880; State v. Brugion, 320 Mo. 202, 7 S.W.2d 262, 263[5, 6]; State v. Gant, Mo., 33 S.W.2d 970, 971[1, 2].

In State v. Carragin, supra, at 109 S.W. 558, the court said: 'We know of no case under our practice in which an accused may be tried and convicted of two distinct felonies except in the case of burglary and larceny which is expressly allowed by statute.' In State v. Preslar, supra, there was an information in four counts each charging defendant with the sale of moonshine and corn whiskey on a different date. Defendant was convicted and separately sentenced on each count. The court said, at 290 S.W. 144:

'We have no hesitation in holding that, on the record before us, the judgment of conviction in which defendant has been sentenced to the penitentiary for 8 years on four separate and distinct felonies, set out in four separate counts of the information, cannot stand the test of judicial criticism, under the laws of this state. We are of the opinion that it was the absolute duty of the trial court in this case, whether requested or not, to have directed the prosecuting attorney, before submitting the case to the jury, to elect on which of the four counts in the information he would proceed to trial and to strike out the remainder. In addition to foregoing, as a part of the state's case, whether requested or not, it was the imperative duty of the court to instruct the jury that they could not find the defendant guilty except on the single count submitted for their consideration. State v. Burrell, 298 Mo. 672, loc. cit. 678, 679, 252 S.W. 709, and cases cited.

'The foregoing conclusion necessitates the reversing and remanding of the cause.'

It seems clear from the opinions in some of the cases heretofore cited that in certain situations, depending upon what particular crimes are joined, a motion to elect should be sustained in advance of the adduction of evidence, State v. Brugioni, supra; while in other instances a motion to elect should be sustained prior to submission to the jury or the trial court should instruct the jury that it may find defendant guilty under either of the counts submitted to it but not under both, State v. Carragin, supra. But in all the cases we have examined it specifically appears or is a reasonable inference from the opinion as a whole that there had been an objection in the trial court in the form of a motion to quash or to elect or to instruct the jury in a certain manner, and that the failure of the trial court to act as requested was assigned as error in a motion for new trial. Thus, in State v. Preslar, supra, which holds that it is the imperative duty of the trial court, whether or not requested, to instruct the jury that it may not find defendant guilty of both felonies submitted, the failure of the trial court to so do was assigned as error in defendant's motion for new trial.

In State v. Collins, supra, 248 S.W. 602, the court indicates that the reason for the Missouri rule that a defendant may not be convicted at the same trial of two distinct felonies is to relieve the defendant from the necessity of meeting the charge of two separate and distinct offenses at the same time. While Supreme Court Rule 24.04 provides specifically for those felonies which may be joined in the same indictment or information, and RSMo 1949 Section 560.110, V.A.M.S., prescribes the felonies for which a defendant may be convicted at the same trial, still the impropriety of joining other distinct felonies in the same charging instrument must be raised by some sort of an objection on the part of defendant. And there is no express prohibition either against joining distinct felonies in the same information or indictment or against the conviction of a defendant at the same trial of two or more distinct felonies. Further, it seems clear that instant defendant could have been properly charged with the crime of first-degree burglary in one information and with the crime of forcible rape in another information, and that separate trials could have resulted in a conviction for each felony, and, if so, a separate sentence properly imposed for each.

Thus, inasmuch as there is no express prohibition against the conviction of a defendant of two distinct felonies at the same trial, and inasmuch as there appears to be no reason for the established rule in Missouri which should prevent a waiver of that rule, and inasmuch, as heretofore noted, an information or indictment in which are joined two district felonies is not bad as a matter of law, we are of the view that a defendant's failure to assign as error in his motion for new trial the action or inaction of the trial court which resulted in his conviction of two distinct felonies at the same trial, effects a waiver of his right to rely on the rule in question. In other words, if a defendant prefers that two distinct felonies with which his is to be charged be joined in one information and if he prefers that he be tried on both those charges at one and the same trial, we perceive no reason why he may not so elect. We hold, therefore, that a defendant's failure to raise any question in his motion for new trial about the fact that or the procedure whereby he was convicted of two distinct felonies at the same trial and separately sentenced for each, should have the same effect as though defendant had specifically elected to be tried on both felonies at the same time.

Assignments 1 and 2 in defendant's new trial motion are that the trial court erred in overruling defendant's separate motions for judgments of acquittal on counts 1 and 2 at the close of the state's evidence. Defendant waived his right to make that contention here by introducing evidence in his own behalf in the trial court. State v. Harris, Mo., 295 S.W.2d 94, 95.

Assignments 3 and 4 are...