State v. Benjamin
| Decision Date | 10 February 1958 |
| Docket Number | No. 46025,No. 2,46025,2 |
| Citation | 309 S.W.2d 602 |
| Parties | STATE of Missouri, Respondent, v. Willie BENJAMIN, Appellant |
| Court | Missouri Supreme Court |
Clarence E. Godfrey, St. Louis, for appellant.
John M. Dalton, Atty. Gen., Grover C. Huston, Asst. Atty. Gen., for respondent.
STOCKARD, Commissioner.
Willie Benjamin was found guilty of robbery in the first degree by means of a dangerous and deadly weapon, Sections 560.120 and 560.135 (), and the jury assessed his punishment at five years imprisonment in the state penitentiary. He has appealed from the ensuing judgment. No brief was filed in this court on behalf of appellant. Therefore, we shall look to the motion for new trial for his assignments of error.
Appellant contends that the trial court erred in overruling his motion for judgment of acquittal made at the end of the state's evidence and again at the close of the entire case. We need not consider the ruling of the court on the motion made at the end of the state's evidence. Appellant subsequently offered evidence in his own behalf, and for that reason the error, if any, was waived. State v. Scott, Mo.Sup., 299 S.W.2d 526. The effect of the motion made at the close of all the evidence was that appellant contended that the state did not make a submissible case for the jury. In considering the ruling of the court on this motion we consider as true the evidence favorable to the state, and we take into consideration the inferences favorable to the state reasonably to be drawn therefrom. State v. Sheard, Mo.Sup., 276 S.W.2d 191.
A jury could reasonably find from the evidence the following facts and circumstances. Dallas Staten lived at 1421 North Euclid in the City of St. Louis, and on June 23, 1956, about 6:15 o'clock in the evening, a former girl friend named Mary Taylor came to his room. She and Staten had an argument and a 'tussle,' and Mary Taylor then left. A little later appellant and another man, whom Staten did not know, came to his room and asked if they could look for some keys. Permission to do this was given. Appellant then called Staten a 'bad name', stuck a shotgun in his side, told him to put up his hands, and took about $7 in loose change from his pocket. The other man hit Staten on the side of his head with a flashlight and knocked him unconscious. Appellant was arrested about 1:15 o'clock the following morning near the place of the robbery. At the time he had in his possession a loaded shotgun.
Appellant testified in his own behalf, and his version of the events was as follows: He was with a girl friend named Gertrude and a person named Spangner. Mary Taylor suggested that after she put her children to sleep they all go to her house to play cards. Mary left, and after the others had waited awhile Gertrude went to see about her. When Gertrude returned she stated, 'There's fighting in there.' About that time Mary came running out of the house where Staten lived. Her blouse was torn, and she reported that she had lost her door keys and she asked appellant, Spangner and another person named Noble to help her find her keys. Appellant and Noble went to Staten's house, and Spangner went to his car to get a flashlight. When appellant entered the hall he asked and was granted permission to look for Mary's keys. He was 'patting on the floor' hunting the keys when he 'heard someone pass a lick.' He looked up and saw Spangner strike Dallas over the head with the flashlight and say, 'What's wrong with you, man?' Appellant then said, 'We better go,' and when he got outside both Gertrude and Mary had left. Noble asked Spangner to take him down on 20th Street to find his brother, which he did. Appellant and Spangner then returned to the area where Staten lived to look for Gertrude. When appellant started to enter a restaurant, Spangner warned him that 'they may try to gang up on you in there.' Spangner then obtained a sawed off shotgun from his automobile and gave it to appellant who stuck it under his belt and hid it with his shirt. Appellant then went into the restaurant and sat on a piano stool. While waiting for his eyes to get adjusted to the darkness, he was arrested.
It is evident that the trial court correctly denied appellant's motion for a judgment of acquittal at the end of the entire case. There was substantial evidence to support every element of the offense of which appellant was charged. It was for the jury to determine whether it would believe appellant's version or the state's version of what occurred.
Near the end of the oral argument to the jury, the assistant circuit attorney commented that 'the state has no right of appeal.' Appellant's objection thereto was sustained and the trial court stated that the 'jury is instructed to disregard it and they won't take or consider that in any verdict they return in this court.' Appellant then moved that the jury be discharged and that a mistrial be declared. This was denied. Appellant assigns as error the failure of the trial court to declare a mistrial.
It has generally been held that it is improper for the prosecution to comment to the jury that the state cannot appeal. 23 C.J.S. Criminal Law Sec. 1101. However, '(w)hether or not the remarks of counsel are improper, and whether or not improper remarks are prejudicial under the facts of the particular case and necessitate a reprimand of counsel or a discharge of the jury are matters which rest very largely within the trial court's discretion, and the appellate court will not interfere unless the record shows an abuse of such discretion to the appellant's prejudice.' State v. Green, Mo.Sup., 292 S.W.2d 283, 288. The trial court promptly sustained the objection and instructed the jury not to consider the remark. Under the circumstances, we cannot say that the trial court abused its discretion in refusing to declare a mistrial.
Appellant's next assignment of error is that In the motion for new trial a portion of the record is quoted in support of this assignment. The argument of the assistant circuit attorney immediately prior to the objection of appellant pertained to the duty of the jury to impose punishment commensurate with the crime if the appellant was found guilty, and we shall set out a greater portion of the record than that quoted in the motion for new trial.
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