State v. Updegraff

• Decision Date: 11 October 1948
• Docket Number: No. 40970.,40970.
• Citation: 214 S.W.2d 22
• Parties: STATE v. UPDEGRAFF.
• Court: Missouri Supreme Court

214 S.W.2d 22

STATE v. UPDEGRAFF.

No. 40970.

Supreme Court of Missouri, Division No. 2.

October 11, 1948.

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 first or prior offense under the Habitual Criminal Act because "penitentiary punishment is authorized" by the employment of the word "punishable." In the Brinkley case the principal or subsequent offense was perjury, Mo.R.S.A. §§ 4272, 4273, and the prior offense was the mixed federal felony of forgery of a money order. In the Marshall case the principal offense was robbery in the first degree and the prior offense was the mixed felony of stealing a motor vehicle for which the defendant had been sentenced to the city workhouse for one year. In both cases it was held that the prior "graded" felonies could be used in invoking the act. As a matter of fact it has been held, upon the authority of these two cases, that the subsequent or principal offense under the second clause may also be a mixed felony. State v. Ward, 356 Mo. 499, 202 S. W.2d 46, 50. There the subsequent offense was embezzlement of a motor vehicle for which either a fine and jail sentence or a penitentiary sentence could be imposed, Mo. R.S.A. §§ 4471, 8404, and, without discussion, the court held that the case was governed by the Brinkley and Marshall cases.

Upon the appellant's insistence we have re-examined the statement in the Brinkley case that the word "punished" in the second clause instead of the word "punishable" was evidently an inadvertence (and did not therefore amend the act, 59 C.J., Sec. 66 p. 557) so as to require that the principal or subsequent offense must be one for which a penitentiary sentence must be imposed) and have came to the conclusion that the statement is correct.

From 1835, R.S. Mo. 1835, p. 213, until 1895 when the act was amended, Laws Mo. 1895, p. 153, the second clause used the word "punishable" as it was and is elsewhere used in the statute rather than the word "punished." The word "punished" first appeared in the act of 1895. The original bill was probably destroyed by fire in 1912 but the enrolled bill which was agreed to by both houses of the General...