State v. Brown , 115 Mo. 409 ( 1893 )

Sherwood, J.

I. This prosecution is bottomed on section 3959, Revised Statutes, 1889, which among other things provides that: “If any person convicted of any offense punishable by imprisonment in the peni"tentiary, or of petit larceny * * * 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 as follows: * * * third,, if such subsequent conviction be for petit larceny, * * * the person convicted of such subsequent offense shall be punished by imprisonment in the penitentiary for a term not exceeding five years.”

The indictment in this cause is sufficient, since it sets forth all the elements, incidents and conditions precedent of the statutory offense. State v. Loehr, 93 Mo. 103; State v. Austin, 113 Mo. 538.

II. The second instruction given at the instance of the prosecution in regard to the presumption of guilt-arising from the recent possession of stolen property, following, as it does, approved precedents in this state is unobjectionable. The third instruction given for the state is the usual one as to the credibility of witnesses, ■etc'., and is also unobjectionable; and the same may be said of the fourth instruction in the state’s series, which tells the jury as to the presumption of innocence with which the law clothes the accused.

The single instruction asked on behalf of the defendant to the effect that the indictment was a mere formal accusation against the defendant, was no evidence of his guilt, and that no juror should permit himself to be influenced against the defendant because ■of the indictment having been found, was unobjectionable and should have been given. Such an instruction to a lawyer sounds like, and is, a mere. truism; but sometimes very simple things or their lack swerve .juries. We do not however rule that the rejection of ■such an instruction would of itself be reversible error.

III. The first instruction given at the instance of the state remains to be considered in connection with Hie facts offered in evidence to establish the conviction of the defendant of the prior offense of petit larceny. It will be observed that the instruction- in question affirms as a fact “that under the record evidence introduced in the case it appears that one Press Brown, on the fourteenth day of June, 1890, was convicted before D. H. Harris, a justice of the peace of Salt River township, in Audrain county, Missouri, of the offense of petit larceny, and his punishment assessed,” etc., etc. 'This assumption was wholly unwarranted by the evidence. The only way known to the law whereby the former conviction of the defendant of the crime of petit larceny could have been established was by the judgment of the justice so reciting; but this the judgment in question does not do. It nowhere appears in the judgment what was the offense of which the defendant was convicted. It is true under the provisions of section 3547, Revised Statutes, 1889, the defendant might have been punished by imprisonment in the •county jail for thirty days; but such could have been his punishment for many other offenses. It is true also that we might infer from the commitment in evidence that the offense was petit larceny; but this is no case for inferences.

Where the second conviction virtually raises a misdemeanor to the grade of a felony, which is to result in incarcerating the accused in the penitentiary for a period of from two to five years, and where such second conviction is made absolutely dependent on a former one, a decent regard for the rights and liberty of the accused, however humble his station in life, ought to and does require that nothing less than a judgment of conviction, plainly setting forth the former offense and adjudging the accused guilty thereof, will suffice as a basis for the second prosecution. At com.mon law, where it is proposed to show a person incompetent to testify as a witness by reason of having-committed an infamous crime “it is the judgment, and that only, which is received as the legal and conclusive-evidence of the party’s guilt” (1 Greenleaf on Evidence [14 Ed.] sec. 375), and surely an equally stringent rule should prevail where the consequences of a former judgment are far more serious, as in the present, instance.

. IV. And inasmuch as the record of the judgment-of the justice offered in evidence was wholly incompetent to show a former conviction, a general objection to its introduction in evidence was sufficient; the rule-being that specific objection in such cases is not necessary. State v. Meyers, 99 Mo. loc. cit. 120.

V. As it is apparent from previous remarks that, there is no valid judgment showing that defendant was. adjudged guilty of petit larceny prior to the present prosecution, the judgment herein will be reversed and the cause remanded.

All concur.