Summary
In State v. Franck, Mo.Sup., 260 S.W.2d 52, an information which failed to allege that defendant was discharged "upon pardon or upon compliance with the sentence," as required by the wording of the statute then in force, was held fatally defective and the conviction was reversed and the cause remanded.
Summary of this case from State v. BryantOpinion
No. 43346.
July 13, 1953.
APPEAL FROM THE CIRCUIT COURT, GREENE COUNTY.
John B. Newberry, Springfield, for appellant.
John M. Dalton, Atty. Gen., A. Bertram Elam, Asst. Atty. Gen., for respondent.
Appellant was convicted by a jury in the circuit court of Greene County of burglary and larceny on the charge of burglarizing a liquor store in Springfield in January, 1952, and stealing $200 worth of whiskey and some money therefrom. His punishment was assessed at 15 years imprisonment in the penitentiary. On this appeal he challenges the sufficiency of the information filed and complains of error in the failure to give and the giving of certain instructions.
The information charged him under the habitual criminal act — Section 556.280 RSMo 1949, V.A.M.S. — and alleged two prior convictions. One of these was for robbery in the first degree with a dangerous and deadly weapon on July 2, 1935, for which he was convicted by a jury and sentenced by the judge to imprisonment in the penitentiary for a term of 12 years. As to this first conviction the information alleged he was "duly imprisoned" in the penitentiary in accordance with the sentence and afterwards was "duly discharged" on April 6, 1946. It did not use the language of the statute, Sec. 556.280, that he was discharged "upon pardon or upon compliance with the sentence".
As to the second prior conviction the instant information alleged that on May 21, 1949 the appellant pleaded guilty to the crime of grand larceny in the circuit court of Greene County and was sentenced by the judge to 4 years imprisonment in the penitentiary in accordance with the sentence and afterward was "duly discharged" from the penitentiary on January 26, 1952. Here again the information did not use the statutory language just quoted. Following the foregoing it alleged appellant committed the robbery upon which the instant conviction was based on January 28, 1952 — two days after his discharge on the second prior offense of grand larceny.
It is appellant's main contention on this appeal that the information in the instant case is fatally defective because it merely alleged as to each of the two prior convictions that he was "duly discharged" and omitted the vital allegation in the statute that he had been discharged either "upon pardon or upon compliance with the sentence".
Both parties cite the following cases listed in the margin. In addition the Attorney General cites three additional cases, and the appellant two cases. Two other decisions in point but not cited in either brief are State v. Manicke, 139 Mo. 545, 547-8 (1), 41 S.W. 223 and State v. Miller, 209 Mo. 389, 390, 107 S.W. 1057.
State v. Austin, 113 Mo. 538, 541-542, 21 S.W. 31-32; State v. Murphy, 345 Mo. 358, 361, 133 S.W.2d 398, 400; State v. Harrison, 359 Mo. 793, 794, 223 S.W.2d 476-478.
O'Donnell v. People, 224, Ill. 218, 221-222, 79 N.E. 639-640; State v. Miller, Mo.Sup., 202 S.W.2d 887, 891; State v. O'Brien, Mo.Sup., 245 S.W.2d 857, 859.
Wood v. People, 53 N.Y. 511, 513; State v. Christup, 337 Mo. 776, 779, 85 S.W.2d 1024(2).
The Austin casefn1 held that an indictment for a second offense was defective under Sec. 3959, R.S. 1889, now Sec. 556.280 [the habitual criminal act] where it failed to aver that the second offense was committed after conviction of a prior offense punishable by imprisonment in the penitentiary, and after a discharge therefrom either upon a pardon or compliance with the sentence. The opinion held the statute makes that requirement because of the extreme punishment it imposes, and that it is a material and essential averment in such an indictment or information. It cites Wood v. People,fn3 53 N.Y. 511, 513. In that case, as in the instant cause, the indictment alleged the defendant had been "duly discharged" and both of the above decisions pointed out that the two quoted words were insufficient because they were broad enough to cover a discharge by some means other than a pardon or compliance with the sentence, such as habeas corpus; arrest of judgment, and the like. The Murphy and Harrison casesfn1 hold to the same effect. See also State v. Christupfn3, 337 Mo. 776, 779-780, 85 S.W.2d 1024, 1025(2).
The brief of the Attorney General contends the information was sufficient. With respect to the Austin case, supra,fn1 the brief quotes substantially a portion of the opinion therein which declares that the habitual criminal statute is applicable only to defendants who have previously been convicted of a felony punishable by imprisonment in the penitentiary and have been discharged, either by pardon or compliance with the sentence. Hence, it is a material and essential averment that the felony on trial was committed after a former conviction of an offense punishable by imprisonment in the penitentiary and a discharge, either by pardon or compliance with the sentence. Then the opinion says; "But in this case no discharge whatever is alleged." [113 Mo. 538, 21 S.W. 32.]
The Attorney General's theory is that this means if a discharge is alleged, it is sufficient, whether it had been by pardon or expiration of the sentence. We construe the decision as making the latter statement merely by way of emphasis and not as meaning that the express requirements of the statute may be dispensed with, for the statute in plain terms provides the discharge must be either by a pardon or upon compliance with the sentence.
Again, the Attorney General's brief refers to State v. Asher, Mo.Sup., 246 S.W. 911, loc.cit. 913, where that decision quoted the part of the habitual criminal statute requiring that the defendant must be discharged either upon pardon or upon compliance with the sentence, and shall subsequently be convicted of an offense committed after such pardon or discharge. The contention in that case was that a "parole" was a pardon, and the decision so held. But it was a gubernatorial parole and not a court parole. And it has since been held by the court en banc in State ex rel. Stewart v. Blair, 356 Mo. 790, 793, 203 S.W.2d 716, 719, that court paroles are not pardons, whereas gubernatorial paroles are conditional pardons, and that a second offender is subject to the provisions of the habitual criminal act, Sec. 556. 280, if he had been discharged by a Governor's conditional parole.
In the instant case there is no contention that the defendant-appellant has received a pardon or conditional parole from the Governor on his two prior convictions. The information on which he was convicted in the instant case merely alleged he had been "duly discharged" from the penitentiary on those two convictions. As to them Sec. 556.280 requires that it be must be shown he has complied with the sentences thereon. The allegations in the information that he had been "duly discharged" are not broad enough to show he has "complied" with them. The information gives the date of his discharge in each case, but not the date of his incarceration or what his full time in each case was. These facts are of vital importance.
For these reasons the judgment is reversed and the cause remanded.
All concur.