State v. Updegraff, No. 40970.
| Court | United States State Supreme Court of Missouri |
| Writing for the Court | Barrett |
| Citation | 214 S.W.2d 22 |
| Parties | STATE v. UPDEGRAFF. |
| Docket Number | No. 40970. |
| Decision Date | 11 October 1948 |
v.
UPDEGRAFF.
Appeal from Circuit Court, Harrison County; V. C. Rose, Judge.
John Updegraff was convicted of selling intoxicating liquor without a license, and he appeals.
Judgment affirmed.
C. C. Ross, of Bethany, for appellant.
J. E. Taylor, Atty. Gen., and William C. Blair, Asst. Atty. Gen., for respondent.
BARRETT, Commissioner.
John "Puddler" Updegraff was charged with selling intoxicating liquor without first having procured a license from the supervisor of liquor control. Mo.R.S.A. § 4900, Laws Mo.1945, p. 1043. One who violates this section of the Liquor Control Act "shall
be deemed guilty of a felony" and upon conviction punished by imprisonment in the penitentiary for a term of not less than two years nor more than five years, or by imprisonment in the county jail, for a term of not less than three months nor more than one year, or by a fine of not less than $100.00 nor more than $1,000.00, or by both such fine and imprisonment. Mo. R.S.A. § 4900(g). In addition, the state invoked the Habitual Criminal Act, Mo.R.S.A. § 4854, by charging, proving and submitting that the appellant had previously been convicted of two felonies, grand larceny and assault with intent to kill with malice, for which he had served terms in the Missouri State Penitentiary. The jury found the appellant guilty as charged and, in accordance with the mandate of the Habitual Criminal Act, sentenced him to the longest term prescribed for a conviction of the principal offense, five years in the penitentiary.
Upon this appeal it is contended that the information is wholly defective, that the court erred in admitting certain evidence, in instructing the jury and in submitting the cause to the jury. All of the appellant's assignments of error are concerned with but a single question and that is whether the principal offense, selling intoxicating liquor without a license, is "such subsequent offense" that the state may apply the Habitual Criminal Act. Since the offense of selling intoxicating liquor without a license is punishable by a fine or jail sentence as well as by a penitentiary sentence it is urged that the offense cannot be used to invoke the Habitual Criminal Act but is in the same category and has the same effect as a subsequent misdemeanor conviction. In other words, selling intoxicating liquor is what has come to be known as a "mixed," "reducible" or "graded" felony, one for which a jail sentence or a fine could be imposed and it is urged therefore that it is not an offense for which the state may invoke the Habitual Criminal Act.
The argument hinges on the second clause of the act which provides that "if such subsequent offense be such that, upon a first conviction, the offender would be punished by imprisonment for a limited term of years" then such person shall be punished by imprisonment in the penitentiary for the longest term prescribed upon a conviction for such first offense. Throughout the act, in four instances, the language is "offense punishable" and "would be punished" and it is argued therefore that as to clause two the subsequent offense must be one for which the punishment must inevitably be imprisonment in the penitentiary and not a jail sentence or a fine.
In two instances it has been held that the prior offense contemplated in the act need not be one for which a penitentiary sentence must be imposed but could be an offense "punishable that way" as well as by a jail sentence. State v. Brinkley, 354 Mo. 337, 374, 375, 189 S.W.2d 314, 335; State v. Marshall, 326 Mo. 1141, 34 S.W.2d 29. In short, it was held that a "mixed" or "graded" felony could be used as the...
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State v. Cooper, 40954
...Her statement was not a spontaneous exclamation but was a mere narration of a past event and prompted by questions. It follows that the [214 S.W.2d 22] statement of appellant's wife was not part of the res gestae; that the testimony concerning it was hearsay; and that the State sought to [3......
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State v. Hacker, 40971.
...adversely to appellant. 214 S.W.2d 416 State v. Brinkley, 354 Mo. 337, 374[27], 189 S.W.2d 314, 335[49]; State v. Updegraff Mo.Sup., 214 S.W.2d 22, reviewing the authorities and reasons. The statute pivots the issue on the punishment the offender may be subjected to for the subsequent offen......
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Wilkinson v. State, 55084
...intent. See State v. Pryor, 342 Mo. 951, 119 S.W.2d 253; State v. Whalen, 297 Mo. 241, 248 S.W. 931; State v. Updegraff (Mo.Sup.), 214 S.W.2d 22; State v. Siegel, 265 Mo. 239, 177 S.W. 353; State v. Murdock, 9 Mo. 739, and State v. Vonderau (Mo.Sup. banc), 483 S.W.2d This, however, is not t......
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State v. Cooper, 40954.
...Her statement was not a spontaneous exclamation but was a mere narration of a past event and prompted by questions. It follows that the 214 S.W.2d 22 statement of appellant's wife was not part of the res gestae; that the testimony concerning it was hearsay; and that the State sought to iden......
-
State v. Cooper, 40954
...Her statement was not a spontaneous exclamation but was a mere narration of a past event and prompted by questions. It follows that the [214 S.W.2d 22] statement of appellant's wife was not part of the res gestae; that the testimony concerning it was hearsay; and that the State sought to [3......
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State v. Hacker, 40971.
...adversely to appellant. 214 S.W.2d 416 State v. Brinkley, 354 Mo. 337, 374[27], 189 S.W.2d 314, 335[49]; State v. Updegraff Mo.Sup., 214 S.W.2d 22, reviewing the authorities and reasons. The statute pivots the issue on the punishment the offender may be subjected to for the subsequent offen......
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Wilkinson v. State, 55084
...intent. See State v. Pryor, 342 Mo. 951, 119 S.W.2d 253; State v. Whalen, 297 Mo. 241, 248 S.W. 931; State v. Updegraff (Mo.Sup.), 214 S.W.2d 22; State v. Siegel, 265 Mo. 239, 177 S.W. 353; State v. Murdock, 9 Mo. 739, and State v. Vonderau (Mo.Sup. banc), 483 S.W.2d This, however, is not t......
-
State v. Cooper, 40954.
...Her statement was not a spontaneous exclamation but was a mere narration of a past event and prompted by questions. It follows that the 214 S.W.2d 22 statement of appellant's wife was not part of the res gestae; that the testimony concerning it was hearsay; and that the State sought to iden......