Opinion
No. 28399.
March 18, 1952.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, AMANDUS BRACKMAN, J.
Louis L. Hicks and Chas. M. Shaw, Clayton, for appellant.
No appearance by respondent.
One Dorothy McDonald Bradley was brought to trial in the Circuit Court of St. Louis County upon an information charging her with the offense of grand larceny. Upon a trial of the case, the jury returned a verdict finding her guilty of petit larceny and assessing her punishment at imprisonment in the county jail for a term of one year.
Notwithstanding the verdict which had expressly found her guilty of petit larceny, judgment was entered on March 7, 1951, that for her offense of grand larceny she should be committed to the county jail for a term of one year.
Thereafter she appealed to this court, where she contends that the judgment was void and could not be changed or modified by the trial court.
After the transfer of the case to this court, and before argument and submission, the lower court, on application of the prosecuting attorney, entered an order on December 7, 1951, that the judgment be corrected and amended nunc pro tunc so as to recite that for her offense of petit larceny defendant should be committed to the county jail for a term of one year. A certified copy of such order was thereupon filed in this court.
Even though at the time the appeal was taken the judgment indicated on its face that the conviction had been for the offense of grand larceny, there would still appear to be no doubt that appellate jurisdiction is in this court.
In determining where appellate jurisdiction lies, recourse must be had, not alone to the judgment appealed from, but to the entire record of the lower court.
In this case the information charged defendant with the offense of grand larceny as defined by R.S.Mo. 1949, § 560.155, V.A.M.S. Nevertheless the court, in submitting the case, gave instructions upon both grades of larceny as it was authorized to do under R.S.Mo. 1949, § 560.245, V.A.M.S. If defendant had been convicted of grand larceny, which is a felony, the Supreme Court would have had exclusive appellate jurisdiction. Const. of 1945, art. V, sec. 3, V.A.M.S. Const. The important thing is, however, that she was not convicted of grand larceny, but of petit larceny as defined by R.S.Mo. 1949, § 560.240, V.A.M.S. The verdict so recites; and the judgment conforms to the verdict in respect to the punishment to be assessed, which is the maximum punishment fixed by statute for petit larceny, but is no part of the punishment imposed by statute for grand larceny. The mere erroneous recital in the judgment that the conviction was for the offense of grand larceny could not be allowed to overcome what the whole record conclusively establishes to the contrary; and appellate jurisdiction is therefore vested in this court. State v. Greenspan, 137 Mo. 149, 38 S.W. 582; State v. Murphy, Mo.Sup., 256 S.W. 743; State v. Woodson, 248 Mo. 705, 154 S.W. 705.
If it were true that having been convicted of only petit larceny, defendant had actually been sentenced for the offense of grand larceny, the judgment and sentence would be void. It is the verdict which gives validity and effect to the judgment so far as the nature of the offense is concerned; and where the verdict finds the defendant guilty of one offense, the court is very obviously without authority to render judgment or pronounce sentence upon the defendant for another offense. The judgment as originally entered in this case was therefore erroneous; and if it stood uncorrected, it would be this court's duty, not to discharge defendant or order a new trial, but to reverse and remand to the lower court for the imposition of a proper judgment and sentence based upon the offense of which defendant was convicted. State v. Hesterly, 178 Mo. 43, 76 S.W. 985; State v. Duff, 253 Mo. 415, 161 S.W. 683; State v. Goodwin, Mo.Sup., 217 S.W. 264; LaGore v. Ramsey, Mo.Sup., 126 S.W.2d 1153; 24 C.J.S., Criminal Law, §§ 1579a, 1950(2).
The corrected judgment shows, however, that defendant was not sentenced for the offense of grand larceny, but for the offense of petit larceny of which she had been found guilty. To what extent does the court's correction of its record at the subsequent term affect the disposition of the appeal?
It has long been fully established that the trial court retains the authority, even though the case be pending in the appellate court, to correct its record nunc pro tunc where there is sufficient proper evidence in the case to show the fact from which correction may be made. In such an instance the situation is not one where the court alters, modifies, or changes any prior action, but instead all that is accomplished is to correct the entry of the record so as to make it conform to and recite the truth of what had actually occurred. State v. Gordon, 196 Mo. 185, 95 S.W. 420; State v. Collins, 225 Mo. 633, 125 S.W. 465; 24 C.J.S., Criminal Law, §§ 1597, 1604.
The record in this case is to be considered in the light of the amendment of the judgment nunc pro tunc so as to show that defendant was sentenced upon her conviction of the offense of petit larceny; and being so corrected, the judgment should be affirmed. It is so ordered.
HOLMAN and ANDERSON, JJ., concur.