State v. Drake

• Decision Date: 30 September 1974
• Docket Number: No. 9528,9528
• Citation: State v. Drake, 514 S.W.2d 653 (Mo. App. 1974)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Henry DRAKE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 653

514 S.W.2d 653

STATE of Missouri, Plaintiff-Respondent, v. Henry DRAKE, Defendant-Appellant.

No. 9528.

Missouri Court of Appeals, Springfield District.

Sept. 30, 1974.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Spec. Asst. Atty. Gen., St. Louis, David Robards, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Robert W. Richart, Joplin, Douglas, Douglas & Douglas, Neosho, for defendant-appellant.

TITUS, Judge.

A Newton County jury convicted Henry Drake of felonious stealing (§§ 560.156 and 560.161 RSMo 1969 V.A.M.S.) but failed to agree upon the punishment to be inflicted. Pursuant to Rule 27.03, V.A.M.R., the court assessed the punishment and sentenced Drake to four years' imprisonment. Defendant has appealed.

I.

Defendant's first point relied on is his claim that the trial court 'erred in allowing the assertion of the Prosecuting Attorney that Mr. Drake had been convicted of a crime when (1) there had been no conviction of a crime and when (2) such a prejudicial statement could not be recalled from the minds of the jurors regardless of the Court's instructions.'

Defendant took the witness stand in his own defense. On direct examination he was asked: 'Have you ever been convicted of a crime before?' Defendant answered: 'No.' On cross-examination the following occurred: 'Q. Now, Mr. Drake, you were convicted of a crime involving interstate commerce and paid a hundred dollar fine, isn't that correct? (Defense counsel): That is not a criminal offense. (The court): Overruled. (Defense counsel): I want to be heard outside the hearing of the jury on this.' The request was granted and an off-the-record conference was held outside the hearing of the jury. ¹ Following this, the trial court instructed: 'The jury will disregard the question asked by (the prosecuting attorney), and you will not consider such question in connection in arriving at your verdict. You will disregard the question completely.' The matter was never again alluded to or mentioned; defendant did not move for a mistrial or seek relief in addition to that applied by the court in its charge. ²

The trial court's instruction to the jury to disregard the state's unanswered question and not to consider it in arriving at a verdict, apparently satisfied the defendant's requirements at that time. In the absence of a request for any further relief, the matter is not now available to defendant on appeal (State v. Crider, 419 S.W.2d 13, 15(6) (Mo.1967)) and precludes the conclusion that the trial court's action affords any basis for a new trial. State v. Jackson, 511 S.W.2d 771, 775(4) (Mo.1974).

II.

The second point relied on by defendant: 'The court erred, and the Defendant was denied a fair trial, when the changed testimony of Charles Long regarding the weight of the (stolen) hogs was known by the Prosecuting Attorney to be false and yet the same was accepted into evidence by the court.'

This point actually preserves nothing for appellate review because it cannot be understood without resorting to the argument portion of defendant's briefs, which is something an appellate court is not required to do. State v. Mitchell, 500 S.W.2d 320, 323(3) (Mo.App.1973). Nevertheless, when the argument section of the brief is conned and the transcript is read, defendant's complaint is not that the trial court permitted introduction of the so-called changed testimony over any objection of the defendant when it was offered, but rather that the trial court did not grant defendant a new trial on the basis of his motion for a new trial and testitimony adduced in relation thereto.

When Charles Long, an employee of the averred victim, was first called by the state he was asked to put 'a minimum value' on the 130 hogs allegedly stolen from Armour and Company on the occasion in question. He testified: '. . . the only thing I could tell you is that the hogs left in the building at that time were from 100 to 170 pounds. . . . I would assume a 100 pound hog would bring $35.00.' A witness who purchased 85 head of the allegedly stolen hogs from defendant related that they had an average weight of '176 pounds'; this prompted the state to recall Mr. Long to 'tie down the weight of the hogs that were taken.' The state asked: '. . . can you give . . . your opinion as to the average weight of the missing hogs?' Defendant's objection to Mr. Long's attempt to 'guess' at the weight was sustained whereupon Long replied: 'We didn't have a chance to weigh the missing hogs, but they would weigh or would have weighed the same as the ones that were still there and which we moved.' The first and only question propounded to Long by defendant's counsel on cross examination was: '. . . you said this morning that they weighed 100 to 125 pounds.' Long answered: 'No, I said 100 to 170 pounds. They weighed, I know, 100 pounds ranging on up to at least 170, and I would say more like 200 pounds, average 200 pounds. The load we took out the evening before the hogs came up missing was the smaller type hogs, and they averaged 100 to 170. . . . When you have 1700 head, you would have a variation of 188 to 200 pounds, and the hogs that were still there, not the ones that were missing or the ones we had moved out of there the night before averaged, I would say 200 pounds.'

Defendant's motion for new trial averred that the first time Long testified he said 'the hogs that were stolen weighed between 100 and 125 pounds' (our emphasis), that after the purchaser-witness told the jury the hogs 'averaged 175 pounds,' a deputy sheriff approached Long in the courthouse hallway telling Long 'that he would have to testify the hogs averaged 175 pounds,' and although Long told bystanders that for him to so testify would be a 'lie' he, nevertheless, returned to the witness stand a second time and so testified. At the hearings held on the motion, Betty Drake (defendant's wife), Ronnie Salzman (then currently charged with defendant for cattle theft) and Larry Cunningham (then on parole), testified in support of the motion. However, the mileage record and log maintained by the sheriff's office showed that the deputy identified by defendant's witnesses as being the one who accosted Long in the hallway, was not in town at the time the conversation was said to have taken place, and the deputy and Long denied there was such a conversation or that they had ever seen one another before they testified at the hearings on defendant's motion for a new trial.

The burden was on defendant to prove his allegations for a new trial (Tucker v. State, 481 S.W.2d 10, 15(8) (Mo.1972)), and the trial court, better possessed than we to judge of the believability of the witnesses, had authority to pass on the credibility of the evidence presented pro and con upon the motion. State v. Coleman, 460 S.W.2d 719, 724 (Mo. banc 1970).

The first fault to be found with this portion of defendant's motion and brief is that a more careful reading of Long's testimony than defendant has given it, discloses that Long never testified the stolen hogs weighed 100 to 125 pounds. Such a claim can only be found in the question propounded by defendant's counsel which was denied by Mr. Long. As we read the transcript we detect no great variance, if any, between what Long testified to on the two occasions he was on the stand. The entire matter of the hogs weighing 100 to 125 pounds was born of a misstatement in the inquiry of defendant's lawyer and cannot be supported by anything which Long said. There was no suggestion at the hearings on the motion for new trial that the prosecuting attorney was aware that Long's testimony regarding weight was false, if indeed it was false, and in view of the evidence adduced to contradict the testimony offered to support the motion for new trial, we are in no position to hold that the court erred in overruling the motion on this point.

III.

Point three in defendant's brief: 'Failure of the State to prove ownership of the hogs in Armour and Company, a...