State v. Hernandez
| Decision Date | 08 June 1959 |
| Docket Number | No. 1,No. 47147,47147,1 |
| Citation | 325 S.W.2d 494 |
| Parties | STATE of Missouri, Respondent, v. Felix HERNANDEZ, Appellant |
| Court | Missouri Supreme Court |
No attorney for appellant.
John M. Dalton, Atty. Gen., Grover C. Huston, Asst. Atty. Gen., for respondent.
HOUSER, Commissioner.
Charged with murder in the first degree, Felix Hernandez was convicted of murder in the second degree. The jury assessed his punishment at 15 years in the state penitentiary. Defendant appealed, but filed no brief. On this review we examine the assignments of error contained in defendant's motion for new trial. Supreme Court Rule 28.02, 42 V.A.M.S.
Defendant's first assignment of error:
This assignment is too general to preserve any question for review, State v. White, Mo.Sup., 301 S.W.2d 827; State v. Schramm, Mo.Sup., 275 S.W.2d 343; State v. Minor, Mo.Sup., 282 S.W.2d 545; State v. Rohman, Mo.Sup., 261 S.W.2d 69, under the mandatory requirement, State v. Gaddy, Mo.Sup., 261 S.W.2d 65; State v. O'Brien, Mo.Sup., 252 S.W.2d 357, of Section 547.030 RSMo 1949, V.A.M.S., and of Supreme Court Rule 27.20, which provide that a motion for new trial must set forth in detail and with particularity the specific grounds or causes therefor.
Defendant's second assignment of error:
This assignment is comprehensible only in the light of the following factual background: On August 31, 1957, Henry E. (Tex) Turner was killed by defendant in a tavern as a result of ill feeling over the attentions paid by Turner to one Nora Dixon. Turner had been a friend of Nora's for ten years. He had gone out with her for a period of about a month in 1956. Nora and defendant had been living together for a period of four years prior to the day of the killing. They were not married. In the past the two men had one heated argument over Nora in Nora's apartment and another argument in a tavern about a year before the date of the killing. On the day in question defendant was sitting in the front booth of the Missouri Tavern at 528 Walnut Street in Kansas City, drinking beer, when Nora and Turner came into the tavern. Turner sat down at the bar and Nora occupied a booth in the rear of the tavern. The State's evidence indicated that defendant approached Turner, said 'I though I told you to stay away from that woman and leave her alone.' He hit Turner in the jaw. Turner got off the stool. Defendant told him, 'I'm going to kill you.' Defendant reached in his pocket, brought out a switch-blade knife, with its 3 or 4 inch blade open. Turner turned his back. Defendant caught him, turned him around, cut him across the stomach twice, turned, staggered, and cut him twice more across the back. Turner, who had nothing in his hands, did not strike at defendant; just tried to keep defendant from cutting him. Badly wounded, Turner died at a hospital a few hours later as a result of the shock and stab wounds of the chest, abdomen and back.
The testimony which forms the basis of assignment of error No. 2, introduced as a part of the State's case in chief, was as follows: Tony Tutor, a customer seated at the bar next to Turner at the time of the killing, a chief witness for the State, testified that on the Saturday prior to the trial Tutor, by a coincidence, encountered Nora Dixon at a tavern at 12th and Troost. Nora was in the company of a man, 'a Mexican fellow.' Nora asked Tutor if he was 'the witness against the defendant,' and Tutor said, 'No, I don't know him.' Nora said, When Tutor said he was not the witness against defendant the man with Nora hit Tutor in the left eye inflicting an inch-long cut running from the eye down to the ear. Defendant objected to this testimony of Tutor on the ground that it was hearsay, not made in the presence of the defendant, and that defendant was 'not bound by any statement or fight or quarrel that might have occurred out there'; that any controversy between Tutor and Nora 'is not binding on this defendant.'
Nora denied any such assault; denied that there was any man with her on the Saturday in question; denied that she and a man approached Tutor and told him not to come to court and testify. She contended that she was seated by herself at the tavern; that the only conversation she had with Tutor was as follows: 'I asked if he was going to come down here and he said no, and he walked on out.'
Defendant's second...
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State v. Love
...evidence is objected to. State v. Davis, 482 S.W.2d 486, 489 (Mo.1972); State v. Brown, 360 S.W.2d 618, 621 (Mo.1962); State v. Hernandez, 325 S.W.2d 494, 496 (Mo.1959); and State v. Washington, 320 S.W.2d 565, 568 (Mo.1959). As tersely stated in State v. Witherspoon, 231 Mo. 706, 133 S.W. ......
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State v. Gilliam, 48437
...to the trial court at the time of defendant's objections to the evidence are not preserved for appellate review. State v. Hernandez, Mo., 325 S.W.2d 494, 496[3, 4]; State v. Richardson, Mo., 321 S.W.2d 423, 427. Under the State's evidence a jury could infer that James Beard aided and abette......
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State v. Reask
...prior to the admission into evidence of an exhibit, defendant may not raise an issue thereon for the first time on appeal. State v. Hernandez, Mo., 325 S.W.2d 494, 496(3, 4); State v. Griffin, Mo., 339 S.W.2d 803, 805(4, 5); State v. Deutschmann, Mo., 392 S.W.2d 279, 283(7, 8). We also find......
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State v. James
...held to the grounds stated to the court in his objection and may not stand upon a new issue in his motion for new trial (State v. Hernandez, Mo., 325 S.W.2d 494[3, 4], citing cases; State v. Thost, supra, 328 S.W.2d 36). He may not first successfully assign error in his motion for new trial......