State v. Baker

• Citation: 199 S.W.2d 393,355 Mo. 1048
• Decision Date: 13 February 1947
• Docket Number: 40063
• Parties: State v. Glenn Baker, Appellant
• Court: Missouri Supreme Court

199 S.W.2d 393

355 Mo. 1048

State v. Glenn Baker, Appellant

No. 40063

Supreme Court of Missouri

February 13, 1947

Appeal from Callaway Circuit Court; Hon. W. M. Dinwiddie Judge.

Affirmed.

D M. Cuthbertson for appellant.

(1) A man must be physically and actually guarded to come within the intendment of the statute, that at the time of his leaving the confines of the prison farm, there must have been at least some pretence by the authorities of watchfulness over him to prevent his escape. (2) The fact that the old night watchman testified that he was a guard, did not constitute him a guard if by the evidence he did nothing of the duties or functions of a guard to prevent the escape of said convicts. All the night watchman was required to do was take the roll call after all were in the barracks at 7 o'clock, and see if any had failed to return to the barracks in compliance with their instructions when they were released on their own good behavior, and to turn the key in the barracks door.

J E. Taylor, Attorney General, and Gordon P. Weir, Assistant Attorney General, for respondent.

(1) The court did not err in denying appellant's request or a directed verdict at the close of the State's evidence. State v. Decker, 326 Mo. 946, 33 S.W.2d 958; State v. Meadows, 330 Mo. 1020, 51 S.W.2d 1033; State v. Sanders, 4 S.W.2d 813. (2) The court did not err in denying appellant's request for a directed verdict at the close of all the evidence in the case. State v. Hembree, 295 Mo. 1, 242 S.W. 911; State v. Ellis, 290 Mo. 219, 234 S.W. 845; State v. Jackson, 283 Mo. 118, 222 S.W. 746; State v. Belknap, 221 S.W. 39; State v. Mann, 217 S.W. 67; State v. Myers, 44 S.W.2d 71; State v. Ring, 346 Mo. 290, 141 S.W.2d 57. (3) The court did not err in giving State's Instruction B. Sec. 4307, R.S. 1939; Ex parte Rody, 152 S.W.2d 657. (4) The court did not err in refusing to give defendant's Instruction 3. Sec. 4307, R.S. 1939; Ex parte Rody, 152 S.W.2d 657. (5) All assignments of error contained in appellant's motion for new trial and not carried forward in appellant's brief are waived. State v. Mason, 339 Mo. 874, 98 S.W.2d 574; State v. Huett, 340 Mo. 934, 104 S.W.2d 252; State v. Davit, 343 Mo. 1151, 125 S.W.2d 47. (6) Assignment of error, Point IV, in appellant's brief, is not in the motion for new trial and, therefore, will not be considered by the court. State v. Hill, 76 S.W.2d 1092; State v. Londe, 345 Mo. 185, 132 S.W.2d 501. (7) Assignment of Error No. 6 in appellant's motion for new trial is too general in its nature and, therefore, is not considered in this brief. Sec. 4125, R.S. 1939; State v. West, 349 Mo. 221, 161 S.W.2d 966; State v. Carpenter, 169 S.W.2d 403. (8) The records of this court show that the defendant was not arraigned, but the trial was conducted without objection by the defendant and in all respects as though arraignment had been made, and no error was committed thereby. Sec. 4004, R.S. 1939; State v. Hefflin, 338 Mo. 236, 89 S.W.2d 938.

OPINION

Conkling, J.

Appellant was tried and convicted in the Circuit Court of Callaway County on the charge of escaping from the custody of officers guarding him on state prison farm No. 2, while out under guard, and while under sentence to and legally confined in the Missouri State Penitentiary for a term less than life. The jury assessed his punishment at imprisonment for two years, and from the judgment and sentence based upon such verdict he appealed.

In his motion for a new trial appellant complained generally of the trial court's action in "giving each and every instruction asked by the state", and in "refusing each and every instruction requested by the defendant". No reason was assigned for claiming the trial court erred in those respects and no effort was made to comply with the statutes. Those assignments are too vague to merit consideration. We have repeatedly ruled that such general assignments of error in a motion for new trial in a criminal case fail to comply with Section 4125 R.S. Mo. 1939, Mo. R.S.A. sec. 4125, and that thereby nothing with respect thereto is preserved for appellate review. State v. West, 349 Mo. 221, 161 S.W.2d 966; State v. Carpenter, 169 S.W.2d 403 (Mo.).

Appellant's second assignment of error in his motion for new trial directly challenged the trial court's ruling at the close of all the evidence in refusing to peremptorily instruct the jury to return a verdict of acquittal. By such assignment we must review the evidence. Appellant's brief states that the sole question on this appeal is whether under the intendment of the statute, Section 4307 R.S. Mo. 1939, appellant "could be constructively under guard while not accompanied by a guard at the time of his alleged escape." Research discloses that this precise question is one of first impression in this state.

There is no dispute as to the facts. Appellant was lawfully confined in the Missouri State Penitentiary for a term less than life. For sometime prior to March 30, 1946 appellant was assigned to duty at prison farm No. 2, and, with other prisoners likewise assigned, answered roll call at the prison farm dormitory at six p.m. on that day. At the close of the day's work at six p.m., after a roll call at the dormitory, the prisoners were given supper, and thereafter a rest period until seven p.m. During such daily rest period the prisoners were permitted to go outside the dormitory for fresh air and relaxation. At seven the prisoners were returned to the dormitory, which was then locked for the night. During the rest period some of the prisoners were allowed to move around outside within certain limits and were often permitted to go down to the river bank at the edge of the prison farm. In some instances prisoners were allowed to go to other parts of the farm, so long as they remained within the boundaries designated by the guards, but to return promptly at seven p.m. The prison farm, boundary to boundary, was constantly under guard as prisoners were aware. At all times the prisoners were under supervision and custody of a prison guard.

On March 30, 1946, after appellant and other prisoners had reported in for six p.m. roll call and had their supper, they went outside the dormitory. Appellant and one Cunningham, a fellow prisoner, went to the river bank about a fourth of a mile from the dormitory. When returning and when about an eighth of a mile from the dormitory they heard the seven o'clock whistle blow. Cunningham testified they were aware of the disciplinary results of being late and feared being returned to the inside of the walls of the penitentiary. They discussed the punishment measures which might be imposed for a late return to the dormitory, and then and there decided to leave the prison farm, did so, and thus escaped.

Later that evening another roll call was made and the absence of Cunningham and appellant was noted. The next day the two men were recaptured by officers at a point some miles north.

State prison farms are part and parcel of the penitentiary. The escape of a prisoner from a state prison farm is an offense prohibited by and punishable under the statute in question, Sec. 4307, R.S. Mo. 1939. State v. Betterton, 317 Mo. 307, 295 S.W. 595, Ex parte Rody, 348 Mo. 1, 152 S.W.2d 657.

While the record affirmatively shows that the prisoners were under the constant supervision and custody of the guard, and so understood that they were, yet the record further discloses that the guard did not always go with the prisoners to the river during their six to seven p.m. rest hour, but with the "permission and favor" of the guard, the prisoners sometimes moved about within that narrow territorial limit while the guard remained at or near the dormitory.

Does the mere fact that the guard did not always go, and on this occasion did not actually go, with appellant and Cunningham to the river, a distance of about four hundred forty yards,...