State v. Baldwin

Decision Date27 June 1927
Docket NumberNo. 26206.,26206.
Citation297 S.W. 10
PartiesSTATE v. BALDWIN.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

Sylvester Baldwin was convicted of robbery, and he appeals. Reversed and remanded.

P. H. Cullen, Jones H. Parker, and Owen G. Jackson, all of St. Louis (Bass & Bass, of St. Louis, of counsel), for appellant.

Robert W. Otto, Atty. Gen. (Harry L. Thomas, Sp. Asst. Atty. Gen.). for the State.

GRAVES, P. J.

A glance at the sundry opinions filed in Division No. 2 shows that this case has had a checkered career. See State v. Baldwin (three opinions, not including the one upon which it came to court in banc), 281 S. W. 940 to 915. However, most of these matters, so earnestly pressed in the division, are as "water passed over the mill," and of no interest to this court. Historically, it might be said that defendant, charged with the crime of robbery in first degree, was convicted in the circuit court of the city of St. Louis, and, upon appeal here, by the first opinion filed, his judgment of conviction was affirmed. Later the division (by a majority vote of the judges) set aside the judgment of affirmance of its own motion and set the cause for another hearing. This was done at the judgment term, and was therefore an act within the power of the court to do. Not only within its power and jurisdiction, but was a duty that should have been performed, if such majority became convinced that such judgment should be set aside in the interest of justice and right. In a civil case, in which there was neither excitement nor notoriety, we had the privilege of deliberately and coolly considering the very question involved in division. In that case there was no motion for new trial timely filed, and what was filed was a paper by a party not of record in the case. We ruled that the court had the right to seek information from any source in the interest of the sanctity and right of its judgment. See Ewart v. Peniston, 233 Mo. loc. cit. 709, 712, 136 S. W. 422. The foregoing is only by way of passing, because it has nothing to do with the issues pending here.

The instant cause was reargued, and a new opinion in division was written (by the writer of the first opinion), and, there being a dissent to this opinion (which again affirmed the judgment of the lower court) upon motion, and in due course, the cause reached this court. There is the evidence of the prosecuting witness that defendant was one of two parties who robbed him, so that the result of this appeal is dependent upon alleged procedural error. These, and the further detail of the facts, will be left to the opinion.

I. Although there is much in some of the opinions cited with reference to general assignments of error in a motion for new trial, we do not understand the learned Attorney General as pressing that matter in this case. Some language, even in some recent opinions, cannot be fully indorsed, in view of the ruling in State v. Noland, 111 Mo. loc. cit. 492, 19 S. W. 715, wherein Judge Gantt so well settles the question. He even answers in advance the great anxiety suffered by some members of this court, as to the use of "masked batteries" fired "from ambush" upon the poor trial judges. We think, with Judge Gantt, that these officials know what has been done through the trial, and are not taken unaware by counsel filing a motion for rehearing with only general assignments. We have noticed further that the judges of this court who have been trial judges have not written (tears in eyes) as to "masked batteries" or unfair treatment. This has remained for others. We cite the Noland Case, supra, because it is a criminal case, and has reference to our Criminal Code provisions as to motions for new trial, and, further, because it has met with the approval of the court in banc, and thus what is said in Noland's Case has been said by the court in banc. State v. Barrington (in banc) 198 Mo. loc. cit. 76, 77, 95 S. W. 235; Collier v. Lead Co. (in banc) 208 Mo. loc. cit. 257, 106 S. W. 971; Wampler v. Railroad (in banc) 269 Mo. 464, 190 S. W. 908.

In this latter case we cite with approval, not only the Noland Case, but also the Barrington Case, and this the court in banc has approved what is said in each of these two criminal cases. But it has been intimated that Wampler's Case did not (upon the question of general assignments in the motion for new trial) have the approval of a majority of the court. As a fact, upon this question it had the approval of six of the seven judges. Kilpatrick v. Robert, 278 Mo. loc. cit. 264, 212 S. W. 884. In the Kilpatrick Case, supra, at 278 Mo. loc. cit. 264 (212 S. W. 886), we said:

"Under our ruling in Wampler v. Railroad, 269 Mo. loc. cit. 476 et seq. , this motion is sufficient, under our practice, in all of its several assignments. The case law is fully reviewed in the Wampler Case by our court in banc, and upon the question here involved, six judges concur. Bond, and Revelle, JJ., concur in separate opinion, but upon the sufficiency of the motion (one in general terms) in the Wampler Case, they agree. As the Wampler Opinion cites and reviews all, or at least many, of our cases upon the subject, further citation is not required here."

This case was in Division 1, and the opinion was approved by all four judges. Bond, J., concurred, and thus verified what I wrote then, and have written now, as to Wampler's Case. The other idea arises from an error in the number of a paragraph as stated in the opinion of Judge Bond. The question is discussed by the present writer in his paragraph 3 of the majority opinion in Wampler's Case. In the latter part of this paragraph 3, we discuss and approve the rulings in the Noland, Barrington, and Collier Cases, supra, as well as the ruling of Graves, P. J. (to like effect), in Stid v. Railroad, 236 Mo. loc. cit. 397, 139 S. W. 172. In this paragraph 3, and in paragraph 4 of that opinion, Woodson, Faris, and Blair, JJ., concurred. Judge Bond concurred in a separate opinion, and in this Judge Revelle concurred. Judge Bond, among other things, said:

"In judging the sufficiency of motions for new trial by the rule fixed by that statute, full effect should be given to it as it has been interpreted and construed in the unbroken line of precedents cited in the concluding portion of the second paragraph of the learned majority opinion. These have held, and such has been the consensus of opinion at the bat," that the `specification of reasons' in the motion for new trial in the present case was sufficient to bring up for review the action of the court in its refusal of the instructions requested by respondent for a peremptory verdict or other instructions requested by it, and, also, in the giving of instructions at the request of plaintiff. Defendant excepted at the time in both instances to the action of the court, and the reference shown in its motion for new trial to the adverse rulings of the court in respect of such instructions, was a sufficient compliance, under the decisions of this court, with the terms of the statute requiring `a written specification of reasons.' Hence I concur only in the result reached in the learned majority opinion. Revelle, J., concurs in this opinion."

Judge Bond uses the words, "unbroken line of precedents cited in the concluding portion of the second paragraph of the learned majority opinion." It is clear that Judges Bond and Revelle had reference to the cases cited in the concluding portion of our paragraph 3, of the Wampler Opinion, and not paragraph 2. It is clear that these two judges were concurring in the doctrine of the Noland, Barrington, Collier, and Stid Cases, supra. We so said in the Kilpatrick Case, supra, and Judge Bond agreed. Not only so, but in State ex rel. v. Ellison, 282 Mo. loc. cit. 662, 222 S. W. 783, this court (in banc) again said that what was ruled in Wampler's Case was not longer an open question, but one fully and finally determined. And may we add that even our learned brother, who dissented in Wampler's Case (269 Mo. loc. cit. 486, 190 S. W. 914), in a later dissent, in the case of State ex rel. v. Reynolds, 278 Mo. 560, 213 S. W. loc. cit. 784, says what we called a general assignment in the Wampler motion was in fact a specific and good assignment. Note the language:

"Furthermore, it was not necessary to a determination of the matter acutely at issue in the motion for a new trial in the majority opinion in the Wampler Case that it be there held that a general assignment of error in such motion concerning the instructions will suffice to authorize a review of same. This for the reason that the motion in that case was sufficiently specific to conform to the requirements of section 1841 (Rev. St. 1909), which was not the fact in the case at bar; and hence the general observations of the learned writer of that opinion may not unfairly be classified as obiter so far as they conclude that said section is not controlling."

We were pleased to see him change his views.

There is no question as to what the court in banc has ruled in both civil and criminal cases. And as said, we do not understand the learned Attorney General to gainsay the rule. As we gather it, what he urges is that there were no sufficient objections and exceptions made and taken during the trial to make a general assignment in the motion for new trial good. Nor does he contend that the act of 1925 (Laws of 1925, p. 198), applies to this case. The trial was prior to 1925, and the law would not apply. So the now recent cases, wherein this act of 1925 is discussed, have no bearing upon the instant case.

The contention as to the objections and exceptions to testimony we take later.

II. We start our investigation of the sufficiency of objections and exceptions during the course of the trial with the rules of the Noland and Barrington Cases fully in mind. In the Barrington Case (198 Mo. loc. cit. 76, 95 S. W. 252), it is...

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