Opinion
No. 42745.
February 11, 1952.
J. E. Taylor, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., for defendant in error.
Defendant was charged with grand larceny under the habitual criminal act RSMo 1949, Sections 560.155 and 556.280, V.A.M.S. On trial, the jury found defendant "guilty as charged in the information" and assessed his punishment at five years imprisonment in the state penitentiary. RSMo 1949, Section 560.160, V.A.M.S. He has brought the record proper before us on writ of error.
No brief or assignment of errors has been filed on behalf of plaintiff in error, nevertheless it is our duty to review the record, determine its sufficiency and render judgment. RSMo 1949, Sec. 547.270, V.A.M.S.; State v. Horn, 336 Mo. 524, 79 S.W.2d 1044; State v. Humphrey, 357 Mo. 824, 210 S.W.2d 1002, 1005. No bill of exceptions has been filed and our view is limited to the record proper. State v. Felder, Mo.Sup., 242 S.W.2d 535; State v. Birkner, Mo.Sup., 229 S.W.2d 674. The situation, however, would not have been changed by the filing of a bill of exceptions since no motion for a new trial was ever filed. RS Mo 1949, Sec 547.030, V.A.M.S. State v. Lyscio, Mo.Sup., 95 S.W.2d 1161.
As stated, plaintiff in error was charged with grand larceny, towit, the larceny of "2 Jersey heifer calves, of the total value of $180.00," the property of Lyman Cave, and it was further charged that on two prior occasions, as therein specified, the plaintiff in error had been charged and convicted of other felonies in this state punishable by imprisonment in the penitentiary; that prison terms had been assessed in each case; and that he had been discharged from the penitentiary sentences assessed under commutation of sentence by the governor of the state.
The amended information was in proper form and sufficient to charge grand larceny under the habitual criminal act. RSMo 1949, Secs. 560.155 and 556.280, V.A.M.S.; State v. Martin, 357 Mo. 368, 208 S.W.2d 203, 205; State v. Sumpter, 335 Mo. 620, 73 S.W.2d 760.
Plaintiff in error was duly arraigned and entered a plea of not guilty. As stated, the jury found plaintiff in error "guilty as charged in the information" and assessed his punishment at imprisonment in the penitentiary for a term of five years. The jury made no express finding as to whether or not he had been previously convicted of either or both of the prior felonies as alleged in the information. See State v. Humphrey, supra, 210 S.W.2d 1002, 1005. The jury could and did assess the maximum punishment as provided in Sec. 560.160, supra, as it was authorized to do without a finding of a previous conviction. State v. Berry, 361 Mo. 904, 237 S.W.2d 91, 93. The verdict, therefore, is sufficient in form and responsive to the issue of guilty of the crime charged. The punishment assessed was within the limits prescribed by Sec. 560.160 and the verdict in form and substance was sufficient to sustain the judgment entered. State v. Roberts, Mo.Sup., 232 S.W.2d 975; State v. Akers, Mo.Sup., 242 S.W. 660. Two days after the verdict was returned plaintiff in error appeared in open court with his counsel and allocution was duly accorded, prior to sentence. Sentence was then imposed in accordance with the verdict. The judgment, as entered, is in due form and sufficient.
The judgment is affirmed.
All concur.