State v. Heickert

• Decision Date: 14 February 1949
• Docket Number: No. 41086.,41086.
• Citation: 217 S.W.2d 561
• Parties: STATE v. HEICKERT
• Court: Missouri Supreme Court

217 S.W.2d 561

STATE v. HEICKERT

No. 41086.

Supreme Court of Missouri, Division No. 1.

February 14, 1949.

Appeal from Circuit Court, Jasper County; Walter E. Bailey, Judge.

Virgil Heickert, alias Virgil Heikert, was convicted for first degree robbery and he appeals.

Affirmed.

Gene Frost and Orval Jewett, both of Joplin, for appellant.

J. E. Taylor, Atty. Gen., and John S. Phillips, Asst. Atty. Gen., for respondent.

VAN OSDOL, Commissioner.

Defendant-appellant, Virgil Heickert, was charged and convicted of robbery in the first degree by means of a dangerous and deadly weapon, and his punishment assessed by the jury at 25 years' imprisonment in the state penitentiary.

The robbery was committed in the office of the Western Union Telegraph Company at Joplin. The robbery was effected by means of a 45-caliber revolving pistol used by the robber in putting to fear two employees of the Telegraph Company who were on duty at the time. These two employees, S. M. "Tib" Hammonds and Barbara Adams; and Eugene Overall, another employee of Telegraph Company, witnesses for the State, were positive in their identification of defendant as the man who committed the crime. The sum of $160.38, property of Telegraph Company, was taken from a cash drawer assigned the employee, Barbara Adams. The defense was alibi. Defendant was sworn as a witness and testified in his own behalf. Upon cross-examination, defendant stated he had been formerly convicted of crime.

Defendant-appellant has filed no brief herein but, in his motion for a new trial, has made three assignments of error.

(1) The first error assigned in the motion is as follows, "The Court erred in refusing to give Instruction No. 1 offered by defendant, to wit: The Court instructs the jury that any evidence of prior conviction of the defendant is to be received not as any evidence of the defendant's guilt or to be considered in assessing his punishment, if any, but is received by the jury solely and exclusively for the purpose of affecting his credibility, if any, as a witness in this case." (Our italics.) The trial court gave an instruction like defendant's refused Instruction No. 1, save and except the given instruction did not include the words we have italicized, supra.

The assignment does not meet with the requirements of Section 4125, R.S.1939, Mo.R.S.A. § 4125. The mere assignment that the refusal of the instruction was error, followed by the quotation of the instruction in full, is not a sufficient compliance with the Section 4125, supra. State v. Fisher, Mo.Sup., 46 S.W.2d 555. The assignment should "set forth in detail and with particularity * * * the specific grounds or causes therefor." Section 4125, supra; State v. Miller, Mo.Sup., 208 S.W.2d 194; State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920; State v. Londe, 345 Mo. 185, 132 S.W.2d 501.

Defendant-appellant assigned (2) error of the trial court in refusing the request of defendant to discharge the jury because of questions propounded to the veniremen by the State's counsel on voir dire examination.

The questions pertained to the veniremen's possible scruples against assessing "substantial" punishment. The State's counsel stated to the panel, "the State is not asking a death penalty in this case, and you will receive no instructions on that * * *. In other words if there are those who feel that for no circumstances should a man be given a substantial term of years confinement in the penitentiary that might last out his natural life, — if you have such scruples regardless of the facts shown, regardless of the nature of the case, then I would like to have you state that at this time." Defendant's counsel objected, asked that the jury be instructed to "disregard the statement," and further asked that the jury be discharged. The trial judge overruled the motion to discharge the jury; requested the State's counsel not to "pursue that line of questioning any further." The judge further told counsel for the State the jury could be qualified "as to whether or not they are against capital punishment." And the judge admonished the jury, "you are not to be guided in your decision or influenced by some remarks of counsel"; but remarked, "I take it there is no one to be prejudiced by what has happened at this time."

In a capital case a prospective juror may be asked if he has such an opinion as would preclude him from returning a verdict with the death penalty. Section 4058, R.S.1939, Mo.R.S.A. § 4058; State v. Pinkston, 336 Mo. 614, 79 S.W.2d 1046. But counsel has...