State v. Gilmore

• Citation: 81 S.W.2d 431,336 Mo. 784
• Parties: The State v. Dewey Gilmore, Appellant
• Decision Date: 30 March 1935
• Court: United States State Supreme Court of Missouri

81 S.W.2d 431

336 Mo. 784

The State v. Dewey Gilmore, Appellant

Supreme Court of Missouri

March 30, 1935

Rehearing Overruled March 30, 1935.

Appeal from Greene Circuit Court; Hon. C. H. Skinker Judge.

Affirmed.

Fred Stewart and L. L. Collins for appellant.

(1) The court erred in overruling appellant's motion to suppress the panel of jurors. (2) The court erred in permitting the State to cross-examine the appellant as to material and prejudicial matters referred to in appellant's chief examination. (3) The court erred in permitting the State to cross-examine the defendant's wife about prejudicial matters not referred to in her chief examination. (4) The court erred in permitting the prosecuting attorney, Mr Benton, to read to the jury the information filed in this case by his predecessor, Dan M. Nee, together with the supporting affidavit thereto by said Dan M. Nee. (5) The officer in charge of the trial jury, he having been one of the State's witnesses, allowed the jurors to separate and hold phone conversations and otherwise affording opportunity for the jurors to be influenced in their verdict.

Roy McKittrick, Attorney General, and John W. Hoffman, Jr., Assistant Attorney General, for respondent.

(1) The information in this case properly follows the language of the statutes and is in a form which has been approved by the court. Sec. 4058, R. S. 1929; State v. Holmes, 316 Mo. 122. (2) The court did not err in overruling defendant's motion to suppress the panel of jurors. State v. Poor, 286 Mo. 657; State v. Cushenberry, 157 Mo. 168; Johnson v. Kansas City Elec. Lt. Co., 232 S.W. 1094; State v. Burns, 33 Mo. 487; 2 Thompson on Trials, sec. 2550. (3) There was no error in permitting the State to cross-examine the defendant as set out in Point 2 of defendant's motion for new trial. Sec. 3692, R. S. 1929; State v. Wilson, 12 S.W.2d 445; State v. Mastin, 211 S.W. 15, 277 Mo. 495; State v. Drew, 213 S.W. 106; State v. Berning, 3 S.W. 588, 91 Mo. 82. (4) Point 3 of defendant's motion for new trial is not properly before this court for the reason that no exception was saved to the ruling of the trial court. State v. Townsend, 289 S.W. 570. (5) The court did not err in permitting the prosecuting attorney to read to the jury the information filed in this case and the affidavit of his predecessor filed in connection therewith. State v. Brown, 62 S.W.2d 426; State v. Richards, 67 S.W.2d 62; State v. Reich, 293 Mo. 415; State v. Batey, 62 S.W.2d 451. (6) There was no error in the separation of the jury as set out in Point 5 of defendant's motion for new trial. State v. Shawley, 67 S.W.2d 89; Secs. 3683, 3734, R. S. 1929.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Appellant was convicted in the Circuit Court of Greene County, Missouri, of the crime of robbery with a dangerous and deadly weapon. The punishment assessed was ten years' imprisonment in the penitentiary. Appellant filed a motion for a new trial, which was overruled by the court and thereafter appellant was sentenced. From this judgment he appealed.

The sufficiency of the evidence to sustain the verdict of the jury was not questioned. A short statement of the case will therefore, suffice. On the night of May 21, 1933, three men entered a filling station, which was being operated by one Jack Walker, adjoining Highway No. 66, about ten miles west of Springfield, Missouri. At the point of a shotgun one of the men ordered Walker and his wife to sit upon chairs. He kept them under guard while the other two men took two slot machines and loaded them into a car. The State also introduced evidence that a cigar box, containing about $ 37 in change, was taken from a back room in the station. Appellant was positively identified as one of the men who committed this robbery. Later the slot machines were found in the garage of appellant's mother-in-law. Appellant explained that three men came to the home of his mother-in-law on the night of the robbery while he was there and asked permission to store the machines in the garage, which request he granted. Appellant denied having taken any part in the robbery and offered evidence of an alibi.

Appellant's first complaint in his motion for new trial was that the trial court erred in not sustaining appellant's motion to suppress the panel of jurors selected to try the case. The evidence in support of this motion shows the following: A panel of twelve jurors had been selected. About the time they were to be sworn to try the case it was discovered that appellant was not present. Appellant had given bond to appear for trial. The jurors were admonished not to talk about the case and were permitted to separate, subject to the call of the court. Some of the jurors were permitted to sit as jurymen in another case. Two days later appellant was apprehended and the twelve jurors, previously selected, were sworn and the case proceeded to trial. Evidence was heard on the motion to suppress the panel prior to the trial. Appellant's only explanation of his absence was, that as the jury was being selected the prosecuting attorney and the prospective jurors appeared to be mad at him; that a number of his witnesses were absent, whereupon he became frightened and left the courtroom. The evidence offered on the motion does not reveal any good reason why the panel should have been suppressed. The fact that appellant left the courtroom could have been proven by evidence in a trial before any other jury that might have been selected. Appellant, during the trial, fully explained to the jury the reason for his absence. Appellant also called as a witness his doctor, who testified appellant was suffering from a disease which rendered him subject to nervousness and that in all probability appellant did not realize that he was doing anything wrong when he left the courtroom. Appellant was in no worse position before this jury than he would have been before any other. The jurors in this case testified in the hearing on the motion to suppress that they were in no way prejudiced against the defendant because of the flight. To have suppressed the panel in this case would have been equivalent to defendant taking advantage of his own wrong. This certainly would be a unique way for a defendant to disqualify a panel of jurors not to his liking. The point is ruled against appellant.

In the second and third assignments of error appellant asserts that the trial court erred in permitting the State's counsel to cross-examine appellant and his wife upon matters not referred to on direct examination. We have read the evidence carefully with these assignments in mind. The record discloses that the trial court promptly sustained appellant's objections to every question asked of both appellant and his wife with reference to any matter not referred to on direct examination. It must be borne in mind that the prosecuting attorney was not limited to a categorical review of the questions asked by appellant's counsel, but was at liberty to cross-examine with reference to any subject upon which the witness being cross-examined gave testimony. [State v. Simmons, 332 Mo. 247, 58 S.W.2d 302, l. c. 304 (12); State v. Wilson, 321 Mo. 564, 12 S.W.2d 445, l. c. 446 (2); State v. Berning, 91 Mo. 82, 3 S.W. 588; State v. Mastin, 277 Mo. 495, 211 S.W. 15, l. c. 18 (3).]

Appellant next assigns as error the action of the trial court in permitting the prosecuting attorney to read the information, including the affidavit, to the jury. The record upon this point discloses the following to have occurred:

"The opening statement on the part of the State was made by Nat W. Benton, Prosecuting Attorney, at the beginning of which he stated as follows:

"(Mr. Benton): Gentlemen of the jury; I will read the information in this case:

"Defendant objected to the reading of the information in this case, for the reason that the pleadings were addressed solely to the Court, not to the jury; that the reading of the information in this case would serve only to prejudice the jury against the defendant.

"Which objection was by the Court overruled.

"To which ruling of the Court the defendant, by counsel, then and there at the time duly excepted.

"The information was thereupon read to the jury by Mr. Benton, the prosecuting attorney; same being as follows." Then follows a copy of the information, including the affidavit of the prosecuting attorney. From the foregoing record we cannot determine with any degree of certainty that the affidavit of the prosecuting attorney was in fact read to the jury. Neither the objection nor the record makes any specific reference to the affidavit. It was pointed out in State v. Brown, 62 S.W.2d 426, that the better practice to be followed in the prosecution of criminal cases is, not to read the information to the jury, but for the prosecuting attorney to make a statement of the State's case, as required by Section 3681, Revised Statutes 1929 (Mo. Stat. Ann., p 3227); State v. Loeb, 190 S.W. 299, l. c. 303 (1); State v. Richards, 334 Mo. 485, 67 S.W.2d 58. In a number of states the indictment or information is by statute required to be read to the jury prior to the introduction of any evidence by the State. [See 16 C. J. 806, sec. 2051.] This for the purpose of informing the defendant of the charge against him, to which charge he may plead. In Missouri, under Section 3681, supra, the prosecuting attorney is required to state in substance what the State intends to prove against ...