State v. Arrington
| Decision Date | 10 February 1964 |
| Docket Number | No. 1,No. 49965,49965,1 |
| Citation | 375 S.W.2d 186 |
| Parties | STATE of Missouri, Respondent, v. Charles ARRINGTON, Appellant |
| Court | Missouri Supreme Court |
Charles Arrington, pro se.
Thomas F. Eagleton, Atty. Gen., Jefferson City, George D. Chopin, Sp. Asst. Atty. Gen., St. Louis, for respondent.
COIL, Commissioner.
Charles Arrington was convicted of rape by forcibly ravishing a woman over the age of sixteen. See Section 559.260, RSMo. 1959 and V.A.M.S. The jury fixed his punishment at forty years in the state penitentiary. He appealed but has filed no brief. We shall examine the assignments of error in his motion for new trial.
There is no contention that the evidence was not sufficient to make a submissible case. Consequently, a brief statement of the facts giving rise to the charge will suffice.
On the night of May 5, 1962, a medical student escorted a young lady to a party given in honor of one of the nurses from the school. At the conclusion of the party, about midnight, they drove to the young lady's home in south St. Louis, where she changed from her formal attire and she intended to then drive her escort (the car was hers) to Barnes Hospital. They traveled north on Jefferson and stopped at Chouteau because of a red traffic signal. A man approached the driver's side with a gun (the student was driving), forced his way into the car, drove it left on Chouteau, west one block, then, by two left turns, into an alley. As the car entered the alley another man, the defendant, ran toward the car. Thereafter, the defendant and his companion searched the student and the young lady and took what money and valuables they found. The defendant and his companion then each forcibly ravished the young lady while the other forced her escort at gunpoint to lie facedown on the front seat. Both the student and the young lady positively identified defendant two days later at a police station and again at the trial. The state's evidence showed that defendant orally and in writing admitted. his guilt.
New trial assignment 5 complains that the trial court erred in not granting defendant a continuance. The record shows that on the morning of the trial, in chambers, defendant's counsel requested that the case be continued until the first of the following year on the ground that recent publicity concerning a brutal rape and murder involving (as did the present case) a white woman and colored men, which had occurred during the prior week, had been so widespread and extensive that it was impossible for this defendant to receive a fair trial. The court overruled the motion. At one of the adjournments during voir dire examination of prospective jurors, defendant's counsel again moved for a continuance for the reasons previously stated and asked that a copy of a St. Louis paper, containing a front-page article concerning the persons who had allegedly committed the other crime, be made a part of the court file. The court overruled that motion. After the jury had been selected and impaneled, defendant's counsel renewed his motion for continuance and had another newspaper marked as a defendant's exhibit and called attention to the front-page headline: 'No penalty severe enough, Three women identify * * * as attacker,' and thereafter a long article some of which was quoted into the record. Again defendant's counsel urged a continuance on the ground that his client could not receive a fair trial. Again the court overruled his motion. The next morning, before the jury was sworn, the court asked the members of the panel 'whether anything that you might have read in the newspapers, or heard on the radio or television has, in any was, influenced you.' There was no answer and the court stated he took that to mean that the answer of each was in the negative. Whereupon the jury was sworn and the trial proceeded.
While portions of the examinations of prospective jurors are contained in the record, there is nothing which shows or purports to show that any question was asked the panel members which was designed to inquire into their knowledge concerning or the effect upon them of the publicity in connection with the other rape case, other than the general question asked by the trial court. While the newspapers that were marked are not before us, we nevertheless do know that there was publicity concerning the rape and murder in St. Louis to which defendant's counsel referred. The fact is, however, that there is no showing in this record which tends to indicate that the jury selected in this case could not, solely by reason of the publicity in the other case, assuming, because it was not shown, that they were aware of it, give this defendant a fair trial. Certainly, there is nothing in the record to indicate to us that this defendant was automatically prejudiced simply because of publicity in the other case; nor is the conclusion apparent that a fair trial for this defendant was not possible. Under the circumstances we may not say that the trial court abused its discretion in refusing to grant the thricesought continuance. State v. Golden, 353 Mo. 585, 183 S.W.2d 109, 111-113.
Assignment 35 charges that the trial court erred in failing to grant defendant a continuance, pursuant to his request made on the morning of trial, on the ground that the state had been permitted to endorse the names of two additional witnesses on the indictment four days prior to the trial date, thereby allegedly preventing defendant 'from preparing a complete and adequate defense.' The record shows that an December 6, four days before the trial which began on Monday, December 10, the names of a police officer and of a police laboratory serologist were endorsed on the indictment. In chambers prior to trial counsel moved for a continuance stating that he had received the memorandum indicating that the two additional witnesses had been endorse on the preceding Friday and requested a continuance on the ground of surprise, claiming that no witness from the laboratory had theretofore been endorsed and that her name threw 'a completely different light on the case * * *.' Criminal Rule 24.17, V.A.M.R., provides that the names of additional witnesses may be added at any time on court order and after notice to defendant or his attorney. Defendant's attorney had notice in this case, and the state's attorney offered to produce the witnesses for depositions and stated that the serologist would testify that there was seminal fluid on certain clothing of the victim and that the police officer would testify that he found certain items in the automobile in which the alleged rape occurred.
Neither defendant's motion at the time nor his motion for new trial suggested or demonstrated a sufficient cause for a continuance, and the trial court did not abuse its discretion in denying defendant's request. There is no showing and it is not otherwise apparent that the testimony of either or both witnesses cast the case in a different light or that the endorsement of the names prevented defendant from preparing a defense. State v. Scott, Mo., 338 S.W.2d 873, 876[4-6].
Assignment 6 charges that the trial court erred in not declaring a requested mistrial when the state's attorney said during the voir dire examination of a jury panel that 'he knew that the defendant * * * was guilty.' The record shows that defendant's counsel asked a prospective juror whether the fact that defendant had been confined in the city jail since May--Whereupon state's counsel objected on the ground that the question was irrelevant and was asked 'merely as a plea of mercy.' The court sustained the objection, whereupon defendant's counsel objected to the 'statement about mercy,' and said, 'There is no mercy; this man is innocent, as far as I am concerned.' The court then began a statement addressed to defendant's counsel, which the prosecutor interrupted and said, 'He is guilty, as far as I am concerned.' Thereafter, the trial court sustained defendant's objection to the 'plea of mercy' statement, after which there was a colloquy among court and counsel out of the hearing of the jury, during which defendant's attorney moved for a mistrial because of the prosecutor's statement as to his belief that defendant was guilty. Thereafter, the court directed the jury to disregard the remarks of both lawyers as to their respective beliefs that defendant was innocent and guilty, and not to consider those remarks at any time nor consider any other opinions of counsel. While it is, of course, improper for a state's attorney to express his opinion as to the guilt of a defendant, aside from the fact that the statement in this case was immediately retaliatory, the trial court's prompt action shows clearly the justification for the denial of defendant's request for a mistrial. State v. Warren, Mo., 320 S.W.2d 575.
Assignment 7 is that the trial court erred in not granting a mistrial for the reason that the state's attorney in his opening statement said that defendant was a friend of one Arthur Dugger and that Dugger's wallet had been found in the automobile in which the rape had occurred. The record shows that defendant's own testimony showed his friendship with Dugger and the state's evidence showed that Dugger's billfold was found in the automobile and that Dugger was a participant in the alleged crime. It is apparent, therefore, that the trial court did not err as charged.
Assignment 9 complains that the trial court erred in not permitting defendant's attorney to say in his opening statement that the testimony would show that defendant was innocent. The record shows that defendant's counsel began his statement by saying that h...
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