State v. Hagerman

238 S.W.2d 327, 361 Mo. 994, 1951 Mo. LEXIS 805

• Court: Supreme Court of Missouri
• Decided: April 9, 1951
• Docket: 42188
• Status: Published

Opinions

LOZIEE, C.

[ 328] Appellant-defendant and Carl Davies were initially charged jointly with second degree burglary and larceny of two wrist watches, two cigarette lighters, a rhinestone bracelet, three pair of hose, two Eagle Stamp books, a revolver and two boxes of shells therefor and thirty dollars in cash. Defendant was tried upon an amended information charging defendant individually with second degree burglary and larceny of these articles and with three prior convictions under the Habitual Criminal Act. Sec. 4854, Mo. RS 1939 and Mo. RSA, now Sec. 556.280, Mo. RS 1949. He was found guilty of the burglary and the prior convictions and sentenced to ten years imprisonment, the maximum penalty for second degree burglary. Sec. 4445, [329] Mo. RS 1939 and Mo. RSA, now Sec. 560.095, Mo. RS 1949.

Defendant appealed. He filed here a transcript of the record, including the bill of exceptions containing all the evidence, but no brief; and the appeal was submitted upon the attorney general’s brief. We have examined tbe record proper and have reviewed the evidence to determine tbe validity of the assignments of error in defendant’s motion for a new trial. Secs. 4125 and 4150, Mo. R. S. 1939 and Mo. RSA, now Secs. 547.030 and 547.270, Mo. RS 1949; State v. Jones, (Mo. Sup.) 227 SW 2d 713; and State v. Pippin, 357 Mo. 456, 209 SW 2d 132. As three of the ten assignments in the motion were directed to the sufficiency of the evidence, it is necessary to summarize the facts.

The following facts were not controverted: Sometime between 3 p. m. and 11:30 p. m. on January 15, 1949, when no member of the family was at home, the residence of Norman Schneider was broken into and the articles described in the information were stolen. About 9 o’clock the same evening, January 15, defendant, and Davies were arrested, taken to the police station and searched. In Davies’ possession was a cigarette lighter, and in defendant’s possession were two wrist watches, a cigarette lighter and a fountain pen. All of these articles were identified by Schneider as among the articles stolen in the burglary the preceding afternoon or evening. At the trial, defendant and Davies admitted possession of the articles when arrested.

The defense was an alibi. Defendant testified that: between 2 p. m. and 6 p. m. on January 15, he was cleaning the walls of his girl friend’s beauty shop; he then went and changed clothes, and then went to Davies’ home about 7 :30 p. m. There was no corroborating testimony as to this alibi.

Defendant and Davies explained their possession of the stolen artides on January 15, thus: On the night of January 14, they had dates with two girls and made dates for the evening of January 15; about 7 :30 p. m., January 15, defendant met Davies at the latter’s home; they went to a restaurant to eat supper; as they sat down at the table, defendant’s foot came in contact with a paper sack containing some of the articles which Schneider later identified; defendant told Davies he would keep them until he found out who owned them and if there would be a reward offered; as Davies had no cigarette lighter, he (defendant) loaned him one of the two in the bag to use that night on their “double date”; they left the restaurant and hailed a taxi, and were arrested just after they entered the taxi and before the taxi started up.

At this point we rule adversely to defendant three of his assignments, viz.: that the evidence was insufficient to support his conviction of second degree burglary, that giving the second degree bui’glary instruction was not justified by the evidence and that his motions for a directed verdict should have been sustained. Defendant’s admitted possession of the recently stolen property tended to show that he was guilty of the burglary. Such evidence, .together with defendant’s evidence to the contrary (his explanation of possession), were for consideration of the jury. State v. Wyre, (Mo. Sup.) 87 SW 2d 171; State v. Meeks, 327 Mo. 1209, 39 SW 2d 765. See also: 9 Am. Jur., Burglary, Sec. 74, p. 276; and 12 CJS, Burglary, Sec. 59, p. 735; State v. Oliver, 355 Mo. 173, 195 SW 2d 484; and State v. Denison, 352 Mo. 572, 178 SW 2d 449.

Defendant claimed that the verdict was based upon bias and prejudice. As a result of its generality, this assignment presents nothing for our review. State v. Jackson, 340 Mo. 748, 102 SW 2d 612. See also State v. Courtney, 356 Mo. 531, 203 SW 2d 72. Nevertheless, we have found nothing in the entire record which even suggests bias or prejudice on the part of the jury.

Defendant’s fifth assignment is that “the court erred in compelling counsel for defendant to proceed to trial after said counsel had sought to withdraw from the case on the day of trial, and defendant was given no choice but forced to proceed to trial represented by reluctant, inadequate [330] and inexperienced counsel, nor was he advised as to his constitutional rights in acting as his own counsel, or permitted that prerogative.”

There is nothing in either the record proper or the bill of exceptions to substantiate this assignment. The original information was' filed February 24, 1949. Defendant was arraigned on March 4. There were three continuances, two of which were granted at defendant’s request. The amended information was filed June 3. Three days later, on June 6, 1949, counsel employed by defendant entered his appearance as defendant’s attorney, and was granted another continuance. A fifth continuance was ordered by the court on September 10. The case was tried on November 21, 1949. Defendant’s counsel, chosen by defendant himself five months before trial, ably presented his client’s cause. We overrule this assignment.

Two of the assignments alleged error in admitting in evidence copies of the records of defendant’s convictions of and sentences for two felonies in the circuit court of Pulaski County, Arkansas, and of a felony in the United States District Court in Mankato, Minnesota; and admitting in evidence copies of the records of the Arkansas State Penitentiary and the United States Penitentiary at Leavenworth; Kansas, relating to defendant’s incarceration and release under such sentences. As these copies were certified by the proper officials and were authenticated in accordance with the provisions of 28 USCA, Secs. 1738 and 1739, respectively, they were properly admitted. Sec. 1825, Mo. RS 1939 and Mo. RSA, now Sec. 490.220, Mo. RS 1949; State v. Tyler, 349 Mo. 167, 159 SW 2d 777; and State v. Brinkley, 354 Mo. 337, 189 SW 2d 314.

Furthermore, defendant took the stand and, on both direct and cross-examination, voluntarily testified as to these three specific convictions and as to serving the sentences in the two penitentiaries. Defendant admitted the facts contained in the certified copies and thus waived any objections to their admission in evidence. State v. Kimbrough, 350 Mo. 609, 166 SW 2d 1077. See also State v. Hardy, 174 La. 458, 141 So. 27. This assignment is overruled. •

Defendant next challenged, in two assignments, the sufficiency of the verdict in that it found him guilty of ‘1 three prior convictions of a felony,” but failed to specify the three particular felony convictions set out in the information and shown by the state’s evidence. Specific findings are sufficient. State v. Tyler, supra. But they are not required. In State v. Ortell, (Mo. Sup.), 50 SW 2d 1037, we held sufficient a verdict similar to the verdict here as responsive to an information similar to the information here. We rule this assignment against defendant.

Finally, defendant asserts that t'he Habitual Criminal Act is unconstitutional. Assuming that this constitutional question has been properly raised and preserved, “it suffices to say that the constitutionality of said statute has already been fully determined. See State v. Moore, 121 Mo. 514, 26 S. W. 345, 42 Am. St. Rep. 542; also the decision of the United States Supreme Court in the same case, Moore v. Missouri, 159 U. S. 673, 16 S. Ct. 179, 40 L. Ed. 301.” State v. Taylor, 323 Mo. 15, 18 SW 2d 474.

As a result of our examination of the entire record, we hold that defendant had a fair and impartial trial in which there was no reversible error. Accordingly, the judgment is affirmed.

Van Osdol and Asohemeyer, CC., concur.

PER CURIAM: — The foregoing.opinion by Lozier, C., is adopted as the opinion of the court.

All the judges concur.