State v. Bailey
| Decision Date | 25 March 1943 |
| Docket Number | 38255 |
| Citation | 169 S.W.2d 380 |
| Parties | STATE v. BAILEY |
| Court | Missouri Supreme Court |
L.J Reidel and J.A. Gochenour, both of St. Louis, for appellant.
Roy McKittrick, Atty. Gen., and Covell R. Hewitt and Tyre W Burton, Asst. Attys. Gen., for respondent.
By an information filed in the circuit court of the City of St Louis, the appellant was charged with robbery with a deadly weapon. The information charged him under the so-called Habitual Criminal Statute, Section 4854, R.S.Mo.1939, Mo.R.S.A. § 4854, reciting that he had previously been convicted of robbery in the State of Tennessee, he had served a term in the Tennessee Penitentiary under that conviction, and he had been lawfully discharged. Upon trial under this information, the jury found the appellant guilty of the crime of robbery and one prior conviction, and assessed his punishment at imprisonment in the penitentiary for life.
In his brief, appellant makes three assignments of error: (1) The court erred in refusing him a continuance; (2) the court erred in giving Instruction No. 6; and (3) the court erred in giving Instruction No. 9.
We have carefully read appellant's motion for a new trial, and fail to find incorporated therein any reference in the court's refusal to grant him a continuance, or any reference to the giving of Instruction No. 6. Section 4125, R.S.Mo.1939, Mo.R.S.A. § 4125, requires that specific grounds or causes for a new trial must be set forth in detail and with particularity. Where, as here, there is no such assignment of error in appellant's motion for a new trial, we are precluded from reviewing these assignments. State v. Batey, Mo.Sup., 62 S.W.2d 450; State v. Barbata, 336 Mo. 362, 80 S.W.2d 865; State v. Arenz, 340 Mo. 160, 100 S.W.2d 264.
The third point raised by appellant pertains to Instruction No. 9. It is the following paragraph of that Instruction which appellant contends was error: '* * * If you find defendant Guilty and further find that on November 23, 1933, in the Circuit Court of Shelby County, Tennessee, defendant was convicted of Robbery and sentenced to the State Penitentiary of Tennessee and was later discharged from said penitentiary then if you assess defendant's punishment at imprisonment you should assess it at imprisonment for the term of his natural life.'
The exact point raised by the appellant is that there was no evidence to show appellant was discharged from the Tennessee State Penitentiary.
Under Section 4855, R.S.Mo.1939, Mo.R.S.A. § 4855, it is necessary to show that the accused was convicted of an offense in another state; that if he had been convicted in this State, his punishment would be confinement in the penitentiary; and that he had been discharged from the penitentiary of the state where he was convicted. State v. Young, 345 Mo. 407, 133 S.W.2d 404; State v. Murphy, 345 Mo. 358, 133 S.W.2d 398.
We have, also, held if accused was confined in the penitentiary and escaped, he was not subject to prosecution for subsequent offense under the Habitual Criminal S...
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