State v. Flores

• Decision Date: 31 December 1932
• Docket Number: 32340
• Citation: 55 S.W.2d 953,332 Mo. 74
• Parties: The State v. James D. Flores, Appellant
• Court: Missouri Supreme Court

55 S.W.2d 953

332 Mo. 74

The State v. James D. Flores, Appellant

No. 32340

Supreme Court of Missouri

December 31, 1932

Appeal from Pettis Circuit Court; Hon. Dimmitt Hoffman Judge.

Reversed and remanded.

W W. Blain for appellant.

(1) The court erred in giving Instruction 5 which told the jury it was for them to determine from all the evidence the validity or invalidity of the defense of insanity. State v Kauffman, 46 S.W.2d 847. (2) The court erred in failing to reprimand the assistant counsel for the State, and to discharge the jury when said attorney asked the following question, "Is that the occasion when he (meaning defendant) goes to the Catholic Church with some others to take somebody else's automobile?", as said question was asked to prejudice the jury against the defendant. State v. Webb, 254 Mo. 434; State v. Jackson, 95 Mo. 652; State v. Baldwin, 297 S.W. 18. (3) The court erred in admitting evidence over the objections of defendant that defendant had committed other crimes. State v. Whitener, 46 S.W.2d 579; State v. Meyers, 82 Mo. 570; State v. Jackson, 95 Mo. 649; State v. Speyer, 194 Mo. 471; State v. Speyer, 207 Mo. 544; State v. Baldwin, 297 S.W. 18. (4) The court erred in permitting the prosecuting attorney to make his argument on the other crimes which had been committed by the defendant, and deprived the defendant of a fair and impartial trial. See Exhibit A attached to motion for new trial. State v. Webb, 254 Mo. 427; State v. Jackson, 95 Mo. 652; State v. Mahly, 68 Mo. 319; State v. Babbst, 131 Mo. 338; State v. Ulrich, 110 Mo. 365; State v. Baldwin, 297 S.W. 19. (5) The court erred in passing sentence on the defendant in the criminal court and should have transferred this cause to the juvenile court after conviction for sentence and did not have jurisdiction to try said cause as defendant was only 16 years of age. Sec. 14162, R. S. 1929; State v. Rutledge, 13 S.W.2d 1061.

Stratton Shartel, Attorney-General, and James A. Finch, Jr., Assistant Attorney-General, for respondent.

(1) Appellant's assignment 8 is so general as not to indicate on what theory he denies the jurisdiction of the court. However, even though appellant was under the age of seventeen, the circuit court had jurisdiction to try him. Secs. 14162, 14168, R. S. 1929; State ex rel. Wells v. Walker, 34 S.W.2d 124; Ex parte Bass, 40 S.W.2d 457. (2) In assignment 9 appellant objects to the admission of the testimony of officer Glenn as to statements made by defendant a few days subsequent to the alleged offense. Such statements are admissible for the purpose of showing defendant's sanity or insanity. The trial court admitted the statements for that purpose only and so instructed the jury. State v. Kring, 64 Mo. 591; State v. Speyer, 194 Mo. 459; State v. Porter, 213 Mo. 43, 111 S.W. 529; State v. Cooper, 170 N.C. 719, 83 S.E. 50, 8 A. L. R. 1214; Underhill Criminal Evidence (3 Ed.) pp. 369-375; State v. Hawley, 51 S.W.2d 17; State v. Speyer, 194 Mo. 459; State v. Tarwater, 239 S.W. 480. (3) Assignment 4 is too general to be considered. It is essential that the assignment specify the particular ground of objection. Sec. 3735, R. S. 1929; State v. Bowman, 12 S.W.2d 51; State v. Richmond, 12 S.W.2d 34; State v. McBride, 12 S.W.2d 47; State v. Bailey, 8 S.W.2d 57; State v. Standifer, 289 S.W. 856. Furthermore, the error, if any, in withdrawing the instruction was favorable to defendant because Instruction 4 correctly states the law of this jurisdiction with reference to the burden of proving insanity. An identical instruction has been approved by this court. State v. Cockriel, 285 S.W. 440; State v. Barker, 216 Mo. 532, 115 S.W. 1102. (4) Assignment 6 does not present a basis for reversal. The court promptly sustained an objection to the question asked by the prosecuting attorney and told the jury to disregard it, thereby curing any error. It is within the discretion of the trial court whether to reprimand the attorney and discharge the jury. State v. Smith, 281 S.W. 35; State v. Lynn, 23 S.W.2d 139; State v. Finkelstein, 213 S.W. 465; State v. Albritton, 40 S.W.2d 676; State v. Nichols, 39 S.W.2d 777.

OPINION

White, P. J.

Information was filed in the Circuit Court of Pettis County charging the defendant with attempt to rob. On the trial, January 18, 1932, he was found guilty as charged and his punishment assessed at two years' imprisonment in the penitentiary. From the judgment following he appealed.

The evidence shows that about ten o'clock p.m., December 24, 1931, the defendant, a boy sixteen years of age, went to the delicatessen shop of one Mr. Middleton. Virgil Hogan, a clerk, was present. The defendant was seated in a small eating room partitioned off from the main room. He asked that the light be turned out; said it hurt his eyes, so that he had only the light from the adjoining room. In a few minutes Virgil Hogan went back to see if defendant had finished his meal. Defendant presented two automatic 44 pistols, ordered Hogan to put up his hands, and forced him back into the kitchen where Middleton was seated. He ordered Middleton to put up his hands and asked where the money was kept. He was told it was in the cash register in front. He then struck each of the two men on the back of the head with the pistols. Middleton was staggered by the blow. Hogan ran out of the back door. Defendant followed him and escaped.

The defense was insanity. The parents of Flores testified that on the evening of the robbery he came home and exclaimed: "My brain, my brain, I am crazy!" that his appearance was the same as on previous occasions when he had spells.

Three doctors introduced by defendant testified that the boy was afflicted with epilepsy and in answer to hypothetical questions stated that under the circumstances attending the alleged crime he was insane. They also testified that while epileptics have slightly abnormal minds they have no particular tendency to commit crime.

In rebuttal Middleton and Hogan swore that the defendant was perfectly normal when he entered the delicatessen shop; that he sat down and talked about the football season. A police officer and the sheriff who took him in charge soon after the crime testified that they observed nothing unusual or abnormal in his facial expression, nor in his actions. The State also produced as witnesses the defendant's teachers who said that his work at school the year preceding the attempted crime was that of an average student. Classmates in the orchestra testified that Flores had no spell that they knew of.

The State also introduced a letter written by the defendant while he was in prison to a friend, William Jolley, in which he urged his friend, whom he addressed as Billy, to be careful; that the writer had been "thru hell," and that "they" gave him the third degree. He urged his friend not to lose his head nor say anything. Then after some complaints about the condition of his cell, bugs, and rats, and the like, he wrote:

"I am going to get out on an 'temporary insanity plea' so I don't have to worry but while I am here it is about to drive me mad really. I told my story as if I were really crazy at the moment and that is the only thing that saved me from being sent up for two to ten years in the pen -- not to the reformatory like most boys. I tell you we just had illusions about this 'easy money stuff.' We are going to stop. You had better think it over and put your original idea out of your head. I am not preaching . . . but I know, I have been through the mill and you don't realize how terrible it is."

Police Officer Glenn who had possession of this letter testified that the defendant also told him about the commission of other crimes, prior to the one with which he was charged.

I. The appellant in his motion for new trial assigned several errors not argued in his brief. He first claims that the court had no jurisdiction of the cause and it should have been transferred to the juvenile court, because he was under the age of seventeen years, citing Section 14162, Revised Statutes 1919, which section provides that circuit courts in counties of less than fifty thousand shall have original jurisdiction of cases coming within the terms of the juvenile court act.

That section further provides that a petition alleging a child to be delinquent shall be dismissed and such child shall be prosecuted under the general law when in the judgment of such court such child is not a proper subject to be dealt with under reformatory provisions of this article.

Section 14163 provides that in the discretion of the judge any petition alleging a child to be delinquent may be dismissed and such child prosecuted under the general law.

These statutes were construed in State ex rel. Wells v. Walker, 326 Mo. 1233, 34 S.W.2d 124. It was held that in a prosecution against a juvenile commenced under the general law, the circuit court had a right to proceed under that law. It was pointed out that since no petition was filed alleging the defendant to be a delinquent child, it was not necessary for the court to exercise the discretion provided under that section. That ruling was approved by this court in Ex parte Bass, 328 Mo. 195, 40 S.W.2d 457.

In this case the defendant was charged by information filed in the Circuit Court of Pettis County by the prosecuting attorney and the cause proceeded to trial on that information. No petition nor request of any kind on the part of the defendant was made to have the cause transferred to the juvenile court. The court had jurisdiction to proceed as it did with the trial.

II. Appellant assigns error in that the court permitted the State to amend the information by adding the words, "at the county of Pettis and State of Missouri on the 24th day of ...