State v. Baker, KCD
Decision Date | 03 November 1975 |
Docket Number | No. KCD,KCD |
Parties | STATE of Missouri, Respondent, v. James Carl BAKER, Appellant. 27634. |
Court | Missouri Court of Appeals |
George R. Lilleston, Lilleston & Roberts, Clinton, for appellant.
John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
Before SWOFFORD, P. J., and WELBORN and HIGGINS, Special Judges.
James Carl Baker was convicted by a jury of robbery, first degree, by means of a dangerous and deadly weapon, of C. W. Kemper, II; and of assault with intent to maim Myrna B. Kemper with malice aforethought. The jury assessed his punishment at imprisonment for fifty years for the robbery and for forty years for the assault. Sentence and judgment were rendered accordingly and the court ordered the sentences to run consecutively. §§ 560.120, 560.135, 559.180, RSMo 1969, V.A.M.S.; Rule 24.04, V.A.M.R.
The defense was alibi; and other than to assert (Point II) that the court erred "in not granting defendant a new trial for the reason that the verdict of the jury was contrary to the weight and preponderance of all the evidence and not supported by substantial evidence," appellant does not question the sufficiency of evidence to sustain his conviction. Such an assignment is not sufficient to preserve anything for review. Rule 27.20, V.A.M.R.; State v. Rohman, 261 S.W.2d 69 (Mo.1953); State v. Jackson, 477 S.W.2d 47, 53(11) (Mo.1972); State v. Vineyard, 497 S.W.2d 821 (Mo.App.1973).
A submissible case may be demonstrated from appellant's statement of facts:
Appellant contends the court erred (I) in allowing the State during closing argument to read from a document not introduced in evidence. See State v. Edmundson, 218 S.W. 864 (Mo. banc 1920); State v. Campbell, 210 Mo. 202, 109 S.W. 706 (1908). The document in question was a transcript of proceedings upon the plea of guilty entered by defendant's brother, Russell Levi Baker, to the robbery charge. Appellant argues that it was prejudicial and cause for reversal because the statement contained a reference to participation of defendant in the robbery and assault for which he was then on trial.
The difficulty in appellant's contention is that although not offered and received as documentary evidence, the subject matter in question was read in evidence prior to the State's argument and comment thereon was therefore appropriate.
Russell Levi Baker testified in his brother's behalf that he pleaded guilty to commission of the robbery in question and that James was not with him in the robbery. During his cross-examination he was confronted with the document in question, a transcript of proceedings upon his plea of guilty July 3, 1974, and the testimony in question came into evidence without objection, viz:
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...of § 545.300 or Rule 23.08. Amendments made to correct the information filed are not prejudicial to the defendant. State v. Baker, 548 S.W.2d 572, 574 (Mo.App.1975). Moreover, the addition of the words "acting with another" or "acting in concert with another" did not substantially change th......
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