State v. Davit

• Citation: 125 S.W.2d 47,343 Mo. 1151
• Decision Date: 21 February 1939
• Docket Number: 35885
• Parties: The State v. Bart Davit, Appellant
• Court: United States State Supreme Court of Missouri

125 S.W.2d 47

343 Mo. 1151

The State v. Bart Davit, Appellant

No. 35885

Supreme Court of Missouri

February 21, 1939

Appeal from Circuit Court of St. Louis County; Hon. Robert W McElhinney, Judge.

Affirmed.

Joseph A. Falzone, O. F. Underwood and J. Cordes Delworth for appellant.

(1) The court erred in not granting defendant's motion for new trial on the grounds the verdict was prompted by bias prejudice, and passion, and was unsupported by any credible evidence. State v. Huff, 61 S.W. 900; State v Liston, 292 S.W. 45; State v. Webb, 162 S.W. 623; State v. Allison, 51 S.W.2d 87. (2) The court erred in permitting counsel for the State to cross-examine the defendant on a series of improper, incompetent, and prejudicial questions. State v. Kyle, 168 S.W. 681; State v. Rose, 76 S.W. 1003; State v. Prendible, 65 S.W. 559. (3) The court erred in refusing to discharge the jury or reprimand counsel for State for improper argument. State v. Young, 12 S.W. 879; State v. Clapper, 102 S.W. 560; State v. Upton, 109 S.W. 821; State v. Richter, 36 S.W.2d 954; State v. Adams, 269 S.W. 401. (4) The court erred in permitting counsel for the State to cross-examine the defendant on matters and things and circumstances beyond the scope of the defendant's direct exammation. State v. Grant, 45 S.W. 1102; State v. Hathhorn, 65 S.W. 756; State v. Sharp, 135 S.W. 488; Sec. 3692, R. S. 1929.

Roy McKittrick, Attorney General, and W. J. Burke, Assistant Attorney General, for respondent.

(1) The court did not err in sending cause from Division 2 to Division 4 of the St. Louis County Circuit Court on filing of change of venue. State v. Allen, 183 S.W. 329, 267 Mo. 58; State v. DeShon, 68 S.W.2d 805, 334 Mo. 862; State v. Messino, 30 S.W.2d 750, 325 Mo. 743. (2) The court did not err in overruling defendant's motion to inspect the minutes of the grand jury. State v. McKeever, 101 S.W.2d 27; State ex rel. Mo. Pac. Ry. Co. v. Hall, 27 S.W.2d 1027, 325 Mo. 102; State ex rel. v. Terte, 25 S.W.2d 459, 324 Mo. 925; Sec. 3533 R. S. 1929. (3) The court did not err in overruling the applicationof the defendant to disqualify Honorable Robert W. McElhinney, Judge of Division 4, and did not err in overruling defendant's objection to the taking of testimony before said court. State v. DeShon, 68 S.W.2d 803, 334 Mo. 862. (4) Assignment of Error 6 is insufficient to preserve anything for review. Sec. 3735, R. S. 1929; State v. Dollarhide, 87 S.W.2d 156, 337 Mo. 962; State v. Short, 87 S.W.2d 1031, 337 Mo. 1061. (5) The corpus delicti was proven by witness Theresa Flueck as set out on page 61 of the Bill of Exceptions. (6) The indictment was sufficient in form and substance and states a charge of murder in the first degree. State v. Benson, 8 S.W.2d 52. (7) The venue was proven by witnesses Mrs. Pauline Davidson at page 60 of the bill of exceptions and William Hollingsworth at page 8 of the bill of exceptions. (8) Appellant's assignment of Error 10 in his motion for new trial is insufficient to preserve anything for review. Sec. 3735, Mo. Stat. Ann., p. 3275; State v. Hall, 102 S.W.2d 879; State v. Caveness, 33 S.W.2d 940, 326 Mo. 992. (9) The court did not err in allowing the prosecuting attorney to cross-examine on matters brought out in chief. State v. Gilmore, 81 S.W.2d 431, 336 Mo. 784; State v. Jackson, 102 S.W.2d 612; State v. Simmons, 58 S.W.2d 302, 332 Mo. 347. (10) The court did not err in allowing the prosecuting attorney on cross-examination to ask concerning the length of time Verne Lacy represented him, when in chief direct examination defendant said Lacy represented him. State v. Gilmore, 81 S.W.2d 431, 336 Mo. 784.

Ellison, J. All concur, except Tipton, J., not sitting.

OPINION

ELLISON

The appellant was convicted of murder in the first degree for shooting and killing Paul Flueck in St. Louis County and his punishment fixed by the jury at life imprisonment in the penitentiary. His motion for new trial in the circuit court contained thirty-two assignments of error. The Attorney General's brief filed in this court last April covers all of these. The appellant's brief was not filed here until more than six months later in October. The Assignment of Errors therein lists fifteen assignments but of these only four are covered by his Points and Authorities and Argument. In view of the fact that he had ample time to answer the Attorney General's discussion of the others but failed to do so, we treat them as abandoned, with the further observation that we have examined the record proper and find no error therein. We do this for the reasons stated in State v. Mason, 339 Mo. 874, 98 S.W.2d 574, and State v. Huett, 340 Mo. 934, 104 S.W.2d 252.

On the evening of February 20, 1932, the deceased Paul Flueck was behind the counter in his small grocery and meat market in Maplewood in St. Louis County. His wife, Mrs. Theresa Flueck, and a clerk, William Hollingsworth, were with him. In front of the counter were his daughter, Mrs. Pauline Davidson and a customer, Mrs. E. C. Dillman. A man entered the store with a pistol in his hand and said: "Stick up your hands, and don't go for a gun." The deceased ducked behind the counter and, crouching, went back to his desk, got a revolver, and was returning toward the robber when the latter amidst the screams of the women fired one shot, killing him, and went back out the door. It was all over in a few seconds.

Hollingsworth, the clerk, sought refuge behind the counter most of the time and was watching the movements of his boss, the deceased. He testified he noticed the robber was a man of medium height and that his pistol was dark or blue, but he swore he did not see the robber's face and could not identify the appellant as the man. Mrs. Dillman, the customer, was near the door, about to leave the store, when the robber came in. She retreated to a corner, got behind a show case other witnesses say, and in the confusion and excitement didn't see much more. The robber appeared to her to be a rather small man, but was in a stooped position. His eyes were blue.

Mrs. Davidson, daughter of the deceased, testified that when the latter returned from his desk with his revolver, and his head came up in sight from behind the counter, the robber stepped close behind her and she heard a shot fired. She declared she got a good look at the man and his face. He had on a green slicker over a gray suit, with the collar pulled tight about him and a white and black muffler around his neck. He wore a gray hat. She had identified him in a police show-up in 1934. Being asked if she saw the robber in the court room, the witness answered in the affirmative, indicated the appellant sitting behind his counsel and referred to his nervous looking eyes. She said, "I will never forget him," declared she was positive in her identification, and wept.

The testimony of Mrs. Theresa Flueck, widow of the deceased, generally coincided with that of the other witnesses concerning the movements of the parties in the store, but varied a little as to the exact language they used. She was positive in her identification of the appellant as the robber. She said:

"He had a gray hat on, a gray suit, with a green slicker, and a white muffler, with black lines, with fringes on it, and I took a good look at him, and he had his blue steel gun up against his side like that, and his eyes I will never forget, and he was trembling -- His eyes, and he looked at me, and Bill Hollingsworth fell down, and he stood there, and I wanted to have a good description. I took a good look at that time and as he seen me looking at him he took his coat and closed up his collar like that." The witness went on to say she identified appellant in a police show-up in Clayton, the county seat, in August, 1934, two and a half years after the homicide; that she heard him speak there, recognized his face, and that his manners, eyes and nervousness were the same. She was subjected to a lengthy cross-examination in which she reiterated she was positive in her identification. This cross-examination indicates her description of the robber at the trial in October, 1935, was more detailed than that given in her testimony at the coroner's inquest two days after the homicide, and differed from it in some respects.

The appellant's defense was an alibi. He testified that he left St. Louis County on the morning of February 20, 1932, the day of the homicide, and drove to Sedalia, Missouri, where he stopped for nearly an hour negotiating the sale of some alcohol to a man named Sappington. Thence he drove to Kansas City, registered at the Midwest Hotel, and went in a taxi to the Blue Hills Country Club where he made another sale. He remained at the Midwest Hotel that night, purchased a box of candy the next morning as a birthday gift for his mother, and drove back through Sedalia to St. Louis. At Sedalia he stopped before noon to see the Sappingtons again, and arrived in St. Louis in time for his mother's birthday dinner, which he attended with his wife and children.

He identified as his own the signature of his name on a hotel register sheet of the Midwest Hotel in Kansas City, and wrote his name at the trial on a piece of paper which was submitted to the jury along with his signature on several court papers for comparison with the registration sheet. The owner of the hotel, G. C. Nitzsche, identified the sheet as one made in the usual course of business on February 19 and 20, 1932. Mr. and Mrs. Sappington and Earl Sappington all testified the appellant passed through Sedalia early in the afternoon of February 20, and the late morning of February 21, 1932. The appellant's wife stated he left home before noon on February 20 for Kansas City and returned at about six o'clock in the evening on the next...