The State v. Austin

• Decision Date: 31 January 1893
• Citation: 21 S.W. 31,113 Mo. 538
• Parties: The State v. Austin, Appellant
• Court: Missouri Supreme Court

21 S.W. 31

113 Mo. 538

The State v. Austin, Appellant

Supreme Court of Missouri, Second Division

January 31, 1893

Appeal from Lincoln Circuit Court.--Hon. E. M. Hughes, Judge.

Reversed and remanded.

Robt. L. Sutton for appellant.

(1) The indictment does not allege that defendant was discharged. Revised Statutes, 1889, sec. 3959; Wood v. State, 53 N.Y. 511; Kelley's Criminal Law, sec. 615; State v Loehr, 93 Mo. 103; State v. Small, 14 A. 727. The indictment must follow the language of the statute. Howell v. Commonwealth, 5 Gratt. 564; State v Cheatwood, 2 Hill (S. C.), 559; State v Emerich, 87 Mo. 110; State v. Helm, 6 Mo. 263; Williams v. State, 31 Am. Rep. 135; State v. O'Bannon, 1 Bailey, 144. The indictment must allege whatever is in law essential to the punishment to be inflicted. 1 Bishop on Criminal Procedure [2 Ed.] sec. 77, et seq. The defendant must be actually set at liberty before he comes within the statute. 1 Bouvier's Law Dictionary [15 Ed.] p. 480. (2) The verdict is against the evidence. (3) The jury should have been permitted to pass upon the facts recited in the warden's register. 1 Greenleaf on Evidence [14 Ed.] secs. 483, 493. (4) It is an improper comment on defendant's testimony to instruct the jury that his evidence should not be discarded for the reason alone that he is the defendant and on trial. State v. Cook, 84 Mo. 40.

John M. Wood, Attorney General, for the State.

(1) The indictment is sufficient. It in substance follows the language of the statute. While it does not in terms allege that the defendant was discharged, it charges compliance with the sentence, which is the legal equivalent. (2) While the evidence is circumstantial, it strongly tends to show the defendant guilty of the offense for which he stands charged. (3) The warden's register and official record duly certified to was admitted in evidence without objection, and stood uncontradicted by any evidence whatever, was unchallenged by defendant, and, under such circumstances, imported absolute verity, and the instruction of the court upon that subject was proper. (4) The instructions relative to defendant's testimony, and the record of defendant's former sentence, were decidedly more favorable to him than he was entitled to. Having testified in the cause, the record was admissible for two purposes: First, to show the commission of a prior offense; and second, for the purpose of affecting the credibility of the defendant. State v. Palmer, 88 Mo. 568, and cases cited.

OPINION

Gantt, P. J.

The defendant was indicted at the September term, 1891, of the Lincoln circuit court for grand larceny of a horse, the property of Jonathan Dodson.

The indictment is as follows: "The grand jurors for the state of Missouri duly impanelled, sworn and charged to inquire within and for the body of the county of Lincoln and state of Missouri, do upon their oaths charge and present that Stephen F. Austin was charged and convicted of the offense of grand larceny on the ninth day of December, A. D. 1889, at the September adjourned term of the circuit court of Lincoln county, Missouri, in the year 1889, and that the said Stephen F. Austin was sentenced by the said court on said ninth day of December, A. D. 1889, for a term of two years' imprisonment in the state penitentiary of Missouri; and that the said Stephen F. Austin complied with said sentence. And that afterwards, to-wit, on or about the twenty-fifth day of July, A. D. 1891, at the said county of Lincoln and state of Missouri, the said Stephen F. Austin did then and there unlawfully and feloniously steal, take and carry away a certain bay horse, the same being the property of Jonathan Dodson, against the peace and dignity of the state."

The defendant was arraigned and entered his plea "not guilty." He was convicted and sentenced for a term of seven years. Motions for a new trial and in arrest were duly made and overruled.

I. The defendant has been permitted to prosecute his appeal as a poor person, but he was fortunate enough to secure the assistance of counsel who has presented his case in an excellent brief. The motion in arrest challenges the sufficiency of the indictment. This prosecution is under section 3959, Revised Statutes, 1889, which provides: "If any person convicted of any offense punishable by imprisonment in the penitentiary, or of petit larceny, or of any attempt to commit an offense which, if perpetrated, would be punishable by imprisonment in the penitentiary, shall be discharged either upon pardon or upon compliance with the sentence and shall subsequently be convicted of any offense committed after such pardon or discharge he shall be punished, * * * second, if such subsequent offense be such that upon a first conviction the offender would be punishable 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." Seven years being the maximum, the court instructed for that and the jury so found.

The punishment is made severe as for an aggravated offense. The crime is purely statutory and it needs no citations or argument to prove that the indictment under it must allege all the material facts which constitute the offense so as to bring the defendant within the provisions of the statute.

The statute by its terms only subjects to this extreme punishment those who have been convicted of some offense punishable by imprisonment in the penitentiary or of petit larceny and have been discharged, either by pardon or by compliance with the sentence, hence, it is a material and essential averment that the felony charged was committed after a former conviction for an offense punishable by imprisonment in the penitentiary and a discharge, either upon being pardoned or having complied with the sentence.

Upon a prosecution under a statute in New York (2 Revised Statutes sec. 8 (N. Y.), 699) containing the same provision,...