State v. Branstuder, 30651
| Decision Date | 01 October 1979 |
| Docket Number | No. 30651,30651 |
| Citation | 589 S.W.2d 85 |
| Parties | STATE of Missouri, Respondent, v. Edmund J. BRANSTUDER, Appellant. |
| Court | Missouri Court of Appeals |
Julian J. Ossman, Asst. Public Defender, 19th Judicial Circuit, Jefferson City, for appellant.
John Ashcroft, Atty. Gen., Earl W. Brown, III, Sp. Asst. Atty. Gen., Kansas City, for respondent.
Before WASSERSTROM, C. J., Presiding, and WELBORN and SMITH, Special Judges.
Appeal from judgment of conviction and sentence to three years' imprisonment (under second offender act) entered on jury verdict finding Edmund J. Branstuder guilty of carrying a concealed weapon.
A search of the person of appellant, then confined in the Missouri State Penitentiary, on March 16, 1978, produced "a homemade dining room knife, sharpened down, with tape on the handle." The corrections officer who conducted the search testified that he found the knife concealed in a shoe appellant was wearing. The officer identified the knife, produced at the trial.
Appellant denied that the knife was in his shoe. He stated that it was under a table and that he carried a knife for protection against homosexual advances by other prison inmates.
On this appeal, the first complaint of appellant is directed at the trial court's giving of the "hammer" instruction. MAI-CR 1.10. The jury retired to deliberate at 11:03 A.M. on the day of the trial. The jury separated for lunch at 11:58 and resumed deliberation at 1:15 P.M. At 2:58 P.M., the judge called the jury into open court and when the foreman replied affirmatively to the judge's inquiry as to whether an impasse had been reached in the jury's deliberation, the court read the "hammer" instruction in the form of MAI-CR 1.10. The jury retired for further deliberation. The judge recalled the jury at 4:00 P.M. and the foreman's request for a little more time was granted. Subsequently, at a time not shown by the transcript, the jury returned with a verdict of guilty.
Appellant attacks the giving of the "hammer" instruction on the grounds that it "improperly invades the jury function and is tantamount to a judicially mandated verdict which denied appellant his right to trial by an impartial jury." No good purpose would be served by review of the authorities from other jurisdictions cited by appellant on this proposition. MAI-CR 1.10, promulgated by the Supreme Court and in effect at the time of the trial in this case, recognized the propriety of such an instruction. See MAI-CR 2d 4.50. There is no need to cite cases which have approved such instruction. This court cannot nullify the Supreme Court's approval of the use of the instruction. The only Missouri authority cited by appellant on this issue, State v. Sanders, 552 S.W.2d 39 (Mo.App.1977), is distinguishable because in that case the trial court, prior to giving the instruction, had been informed that the jury stood nine to three for conviction. Here the court did not know how the jury stood. See State v. Hawkins, 581 S.W.2d 102, 104(2-4) (Mo.App.1979). The time element here involved does not show that the "hammer" had a coercive effect. Hawkins.
Appellant next complains...
To continue reading
Request your trial
-
State v. Evans
...trial comes too late to preserve this preliminary matter for appellate review, State v. Small, 386 S.W.2d 379 (Mo.1965); State v. Branstuder, 589 S.W.2d 85 (Mo.App.1979), and we find no manifest injustice necessitating review for plain error, Rule During trial, Beverly Moppins, who worked t......
-
Herron v. State
...attorney Doak to subpoena and examine Bass was a deliberate choice and, from his explanation, was a strategic choice. State v. Branstuder, 589 S.W.2d 85 (Mo.App.1979); Taylor v. State, 586 S.W.2d 452 The movant's next point is that the trial court erred in denying an evidentiary hearing on ......