State v. Watson
| Decision Date | 09 November 1964 |
| Docket Number | No. 1,No. 49972,49972,1 |
| Citation | 383 S.W.2d 753 |
| Parties | STATE of Missouri, Respondent, v. George Lawrence WATSON, Appellant |
| Court | Missouri Supreme Court |
Thomas F. Eagleton, Atty. Gen., Jefferson City, Thomas R. Green, Special Asst. Atty. Gen., St. Louis, for respondent.
David A. Yarger, Versailles, for appellant.
Defendant was charged and convicted of burglary second degree under the Habitual Criminal Act and was sentenced to eight years in the state penitentiary. See Sections 560.070, 560.095 and 556.280 RSMo 1959, V.A.M.S. It was further 'ordered by the court that sentence is to begin at the expiration of sentence of cause number C-31649, making a total of thirteen (13) years in the penitentiary.' Defendant has appealed as a poor person from the judgment entered against him, and a full transcript has been provided. He is represented in this Court by an attorney of his own choice.
By an information filed in the Circuit Court of Jackson County on April 4, 1962, it was charged that defendant, 'on the 13th day of March, 1962, at the County of Jackson, State aforesaid, did unlawfully, feloniously and burglariously break into and enter a certain building, to-wit: the store room of one Walter Weinberg, located at 3303 Brooklyn, Kansas City, Jackson County, Missouri, by then and there breaking and bursting the side door or said store room there situate, the same being a building in which divers goods, wares, merchandise, and valuable things were then and there kept for sale and deposited, with felonious intent the said goods, wares, merchandise and valuable things in the said building then and there being then and there unlawfully, feloniously and burglariously to steal * * *.'
The Weinberg store at 3303 Brooklyn was a grocery, also referred to as Walter's Market, and next door to it on the north, at 3301 Brooklyn, was the drugstore of one Herbert Elliott. Both stores were located in the same building, but the stores were completely separated from each other by a partition wall, except near the rear where there was an enclosed common areaway and steps that led to the basement. On each side of the areaway there was a door, one opening into the drugstore and the other into the grocery store. The record and certain admissions indicate that, at about the date of the filing of the above charge involving the grocery, a similar charge of burglary second degree and stealing on the same date had been filed against defendant involving the drugstore of Herbert Elliott at 3301 Brooklyn. Appellant's brief concedes that 'these were separate businesses, each having their own doors to lock or attend to that led into a common passageway.'
On November 14, 1962, an amended information was filed against defendant under the Habitual Criminal Act, which added to the prior charge, a charge that defendant 'on the 8th day of December, 1952, in the United States District Court for the Western District of Missouri, Western District, was then and there convicted of Bank Robbery, and was sentenced therefor to serve a term of 7 years therefor, in the Federal Penitentiary at Leavenworth, Kansas, and thereafter was received at said penitentiary on January 30, 1953, and thereafter was discharged from said penitentiary * * *.' (Italics ours.)
Thereafter, a further amended information was filed against defendant on November 30, 1962 wherein the prior information was amended so as to exclude the words 'to steal' and to conclude the charge as follows: '* * * with felonious intent the said goods, wares, merchandise and valuable things in the said building then and there being then and there unlawfully, feloniously and burglariously to commit a felony therein, to-wit to unlawfully, feloniously and burglariously break into and enter a certain building, known as 3301 Brooklyn, Kansas City, Jackson County, Missouri; against the peace and dignity of the State.' The information contains no further allegation with reference to the ownership of the drugstore or any allegation with reference to the intent of the defendant when breaking into the drugstore of one Herbert Elliott, the owner.
The record further shows that, thereafter, the defendant filed a petition for a writ of habeas corpus claiming that he was unlawfully imprisoned because of alleged defects in the amended information. A hearing was had and relief was denied.
Thereafter, defendant filed an application for a change of venue (rather for a change of judge) based on the alleged prejudice of the judge. The application was sustained and a transfer was ordered from the division of the Circuit Court of Jackson County presided over by Judge John H. Lucas to the division presided over by Judge Paul A. Buzard. A further motion to dismiss the charge against defendant was then filed by defendant, pro se, because of the alleged defects in the information, one claim being that defendant was now charged with two charges of burglary, both committed 'on the same building with only one entry and one exit, this constitutes only one crime.' Defendant's further theory was that the two prior separate charges against him were now combined in one information. The motion to dismiss was denied. Defendant then filed a second petition for a writ of habeas corpus on substantially the same grounds as had been previously ruled and it was denied.
The amended information upon which the cause was tried is attacked in this Court on numerous grounds both in the appellant's brief filed pro se and in the brief filed by appellant's sttorney. Further, under S.Ct. Rule 28.02, V.A.M.R., it is our duty on this appeal to determine the sufficiency of the amended information since the rule, in part, provides: '* * * No assignment of error respecting the sufficiency of the information or indictment, verdict, judgment and sentence shall be necessary upon an appeal and the appellate court shall render judgment as to those matters upon the record before it. * * *' Defects in an information may be raised for the first time in this Court. State v. Jeffords, Mo., 64 S.W.2d 241, 242 [2, 3].
The first question presented involves the sufficiency of the allegations of the last amended information to invoke the provisions of Section 556.280 RSMo, as amended Laws 1959, S.B. No. 117, Sec. 1, V.A.M.S., and to authorize the trial judge, rather than a jury, to assess the punishment in the event the defendant was found guilty of the offense charged.
The mentioned statute in part provides: * * *'
Appellant contends that the amended information in the final form upon which the cause was tried 'did not charge that appellant had been 'subsequently placed on probation, parole, fined or imprisoned'' as a result of the conviction for the prior offense alleged; that the amended information only charged that he was 'received at a certain penitentiary' and not that he was 'imprisoned' as required by the statute. It is insisted that the allegations of the amended information with reference to the prior conviction were not sufficient to invoke the provisions of the Habitual Criminal Act, as amended.
We think the allegations of the amended information were in fact insufficient to invoke the provisions of the Habitual Criminal Act; and that, while as a question of fact an inference might possibly be drawn from the allegations that appellant was in fact imprisoned in the mentioned institution, yet the Court did not so find and the several allegations to the effect that defendant was 'received at said penitentiary' and thereafter 'discharged from said penitentiary' do not clearly and definitely comply with the provisions of the mentioned statute and do not constitute an allegation or charge that defendant was subsequently placed on probation, paroled, fined or imprisoned for the prior offense, hence the trial court had no authority to assess the punishment. See State v. Bryant, Mo., 375 S.W.2d 107, 109 [3-5]; State v. Franck, Mo., 260 S.W.2d 52. We must and do hold that the amended information was fatally defective in the respects mentioned and in view of the defective allegations and the failure of proof as hereinafter set out, the defendant was not subject to the procedure provided for by the Habitual Criminal Act, as amended Laws 1959, S.B. No. 117, Sec. 1 et seq., hence appellant was entitled to have a jury assess his punishment in the event he was found guilty of the subsequent crime sought to be charged against him.
A further assignment of error is that the information is otherwise fatally defective for the reason that it does not charge on offense under Section 560.070 RSMo 1959, V.A.M.S., for burglary in the second degree. This section provides: 'Every person who shall be convicted of breaking and entering any building, the breaking and entering of which shall not be declared by any statute of this state to be burglary in the first degree, or any booth or tent, or any boat or vessel, or railroad car in which there shall be at the time any human being or any goods, wares, merchandise or other valuable thing kept or deposited, with the intent to steal...
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