State v. Wiley

• Decision Date: 13 February 1967
• Docket Number: No. 1,No. 52088,52088,1
• Citation: 412 S.W.2d 485
• Parties: STATE of Missouri, Respondent, v. William Joseph WILEY, Appellant
• Court: Missouri Supreme Court

Page 485

412 S.W.2d 485

STATE of Missouri, Respondent, v. William Joseph WILEY, Appellant.

No. 52088.

Supreme Court of Missouri, Division No. 1.

Feb. 13, 1967.

Motion for Rehearing or to Transfer to Court En Banc Denied

March 13, 1967.

Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.

Norman H. Anderson, Atty. Gen., Jefferson City, Stanley D. Rostov, Sp. Asst. Atty. Gen., Kansas City, for respondent.

HIGGINS, Commissioner.

Appellant was convicted by a jury of felonious stealing. The court assessed his punishment at two-years' imprisonment in the penitentiary and sentenced him accordingly.

After charging appellant with felonious stealing from Macy's Clay County store, the sufficiency of which charge is not challenged, the amended information proceeds:

'It is further charged that the said defendant, WILLIAM JOSEPH WILEY, on or about June 4, 1951, was convicted of grand larceny in the Circuit Court of Benton County, Missouri, and sentenced to two years in the Missouri Department of Corrections:

'On January 14, 1960, defendant was convicted of robbery in the first degree and sentenced to five years in the Missouri Penitentiary * * *.'

Appellant contends that the amended information was 'insufficient to allege the second offender act, in that it did not allege that the defendant had previously been imprisoned in compliance with the prior conviction, and the issue of punishment was erroneously not submitted to the jury * * *.'

The second offense statute, Section 556.280, V.A.M.S., provides:

'If any person convicted of any offense punishable by imprisonment in the penitentiary * * * shall be sentenced and subsequently placed on probation, paroled, fined or imprisoned therefor, and is charged with having thereafter committed a felony, he shall be tried and if convicted punished as follows:

'(1) * * * shall receive such punishment * * * as the trial judge determines after the person has been convicted.'

This section is 'highly penal and * * * must be strictly construed,' and both the prior conviction and subsequent probation, parole, fine or imprisonment therefor must be pleaded and proved. State v. Hacker, Mo., 291 S.W.2d 155, 157 (1). It is apparent that this amended information fails to allege the statutory requirement of being 'subsequently placed on probation, paroled, fined or imprisoned therefor,' in connection with either of the purported prior convictions and, for that reason, is not sufficient to invoke the statute here. State v. Watson, Mo., 383 S.W.2d 753, 756(2). Prior to 1959 this part of the statute read, 'shall be discharged, either upon pardon or upon compliance with the sentence,' and an information which failed to contain such an allegation was fatally defective. State v. Watson, supra; State v. Franck, Mo., 260 S.W.2d 52.

The court made no finding (State v. Caffey, Mo., 404 S.W.2d 171, 176(3)) of the applicability of Section 556.280, but apparently assumed that it did apply and did not submit the issue of punishment to the jury, the verdict being limited to a finding of 'guilty of felonious stealing.' Section 560.161, V.A.M.S., provides punishment for felonious stealing at 'imprisonment in the penitentiary for not more than ten years nor less than two years, or by imprisonment in the county jail for not more than one year, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment.' It is only when the second offense statute is applicable that the court alone fixes the punishment and, when not applicable, 'then the jury shall determine guilt and punishment as in other cases.' Section 556.280(2), V.A.M.S. Appellant was prejudiced because the jury might have imposed a lesser punishment than that fixed by the court. State v. Young, Mo., 366 S.W.2d 386, 390(8); State v. Kiddoo, Mo., 354 S.W.2d 883, 886(5).

Respondent, in an attempt to avoid a new trial, argues that the proof of prior conviction, sentence and imprisonment prior to the jury being sworn 'were in effect an amendment to the information under * * * Sections 545.290 and 545.300,' V.A.M.S., and Criminal Rule 24.02, V.A.M.R. See State v. Williams, Mo., 382 S.W.2d 597, 600(3), holding that proof of prior convictions under the act may be made by certified transcripts of serial records kept by the Missouri Department of Corrections, and State v. Crow, Mo., 388 S.W.2d 817, 820(3), permitting amendment of an information under Rule 24.02 at any time before verdict to incorporate allegations invoking the second offense act because such does not constitute a separate or different offense.

This contention must fail here because the record does not show any leave granted, any exercise of discretion, or any order, by the court, within the meaning of Sections 545.290 and 545.300 and Rule 24.02, from which it might be said that such an amendment was accomplished. See State v. Watson, supra, 383 S.W.2d l.c. 758(7). And, as previously mentioned, the court made no finding of the applicability of the second offense provision. These inadequacies of the record are emphasized by the trial judge's own words upon argument on this point: 'I don't think you need to take up any more time arguing that matter, because the Court is of the opinion that he was neither sufficiently and properly charged as being, as you call it, a second offender, some call it as an habitual criminal--and the Court now holds that he was neither sufficiently charged, definitely charged nor definitely proved, either one, and the Court so holds at this time.'

Nevertheless, the court assessed punishment. a jury function in this case, and for that error the judgment must be reversed and the cause remanded.

Appellant does not contend that the evidence is not sufficient to sustain a conviction for felonious stealing but, in an attempt to secure outright reversal, argues that the court should have suppressed certain evidence without which the conviction could not stand. His precise contention is that the court erred in overruling his motion to suppress and admitting in evidence 'items obtained by unreasonable, illegal and unconstitutional searches and seizures of appellant's automobile, said search not being an incident to a lawful arrest and the appellant not having intelligently and knowingly consenting (sic) to such search.'

A pretrial hearing was held on appellant's Motion to Suppress evidence. Harry D. Quigley testified that on the date of the alleged crime, March 1, 1965, he was an officer of the Kansas City, Missouri, Police Department assigned to the Antioch Shopping Center area of Clay County, Missouri. He had occasion to observe appellant walking in the west parking lot at Antioch with a lady who was later found to be Mrs. Wiley. He placed him under arrest 'at his automobile. * * * He was standing beside the automobile when he...