State v. Herring

• Decision Date: 21 March 1936
• Docket Number: No. 34026.,34026.
• Parties: STATE v. HERRING.
• Court: Missouri Supreme Court

92 S.W.2d 132

STATE v. HERRING.

No. 34026.

Supreme Court of Missouri, Division No. 2.

March 21, 1936.

Appeal from Circuit Court, Jackson County; Brown Harris, Judge.

Harry Herring was convicted of robbery with a dangerous and deadly weapon, and he appeals.

Affirmed.

J. P. Zimmerman, of Kansas City, for appellant.

Roy McKittrick, Atty. Gen., and William W. Barnes, Asst. Atty. Gen., for the State.

BOHLING, Commissioner.

Harry Herring appeals from a judgment and sentence of 10 years' imprisonment for robbery with a dangerous and deadly weapon.

George S. Elstun was on April 20, 1932, and prior thereto had been, the proprietor of the Broadmoor Hotel in Kansas City, Mo. On the night of April 19-20, 1932, soon after midnight, two unmasked men entered the lobby of the hotel and, at the point of a revolver, robbed those in charge of the hotel of the cash on hand. That the robbery was committed is not questioned, and the facts need not be detailed. The defense was an alibi. Appellant was identified by the night clerk and by the porter of the hotel as the party using the revolver. He was also identified by an employee of a garage situate across the street from the hotel. One James H. Turner was the other offender. The case was clearly one for the jury.

Appellant assigns error in the overruling of his plea of former jeopardy. This is a matter of exception, and, as the plea is not set out in the bill of exceptions, we are in no position to review the action of the trial court thereon. See State v. Rozell (Mo.Sup.) 279 S.W. 705, 708[1-3]; State v. Shuls, 329 Mo. 245, 250(1), 44 S.W.(2d) 94, 95[1], on motion to quash; State v. Wyre (Mo.Sup.) 87 S.W.(2d) 171, 174[6], on application for continuance, by way of analogy. Taking the assignment as true (it does not prove itself), it is based on the contention that, after a verdict of guilty and a sentence of 25 years' imprisonment and the granting of a new trial, defendant was acquitted of the habitual criminal charge set forth in the indictment. The punishment imposed by the instant judgment is 10 years' imprisonment, and appellant is in no position to complain. Further, the habitual criminal charge goes only to the punishment, not the guilt or innocence, of a defendant. State v. Citius, 331 Mo. 605, 610 (1), 56 S.W.(2d) 72, 73[2]. By requesting a new trial, defendant waived the issue of former jeopardy. Mo.Const. art. 2, § 23; State v. Austin, 318 Mo. 859, 864(2), 300 S.W. 1083, 1085[5]; State v. Beard, 334 Mo. 909, 913(2), 68 S.W.(2d) 698, 700[2].

Appellant's motion for new trial contends there was no proof of venue. The evidence established the commission of the offense in the lobby of the Broadmoor Hotel and the location of said hotel in Kansas City, Jackson county, Mo. The contention is devoid of merit.

Letha Turner, wife of James H. Turner, was offered as a witness by the state. On cross-examination, appellant's counsel sought to show that she associated with men other than her husband. On redirect examination, state's counsel first ascertained that the witness was not living with her husband, and asked: "Where is your husband now?" This was objected to as being incompetent and irrelevant and as not proving or disproving any issue in the case. The witness answered, over exception saved: "He is in the Missouri state penitentiary at Jefferson City." Appellant's assignment charges error in the court's refusal to strike out that portion of the answer referring to her husband's confinement in the penitentiary as being prejudicial. No motion to strike any portion of the answer was interposed, nor did the objection to the question embrace the reason relied on in the assignment. We fail to see anything objectionable, especially in view of the cross-examination, in the question. See State v. Ferguson (Mo.Sup.) 183 S.W. 336, 337[3]. The fact that James H. Turner was in Jefferson City could not have prejudiced appellant's rights; and, as appellant's assignment attacks only that portion of the answer referring to his confinement in the penitentiary, appellant, to save it for rereview here, should have moved to strike out or have the jury disregard the objectionable portion of the answer. 16 C.J. 879, § 2203, note 51; and see State v. Bateman, 198 Mo. 212, 222, 94 S.W. 843, 846.

On recross-examination the witness, in response to leading questions by appellant's counsel, stated her husband was serving 5 years in the penitentiary on this particular charge. Appellant cites a number of cases to the effect that it is prejudicial error for the state to show the conviction of another for the same offense. State v. Gargano, 99 Conn. 103, 107, 121 A. 657, 658[5]; Webster v. Commonwealth, 223 Ky. 369, 373, 3 S.W.(2d) 754, 756[4]; People v. Bears, 10 Cal. 68, 70; Gonzales v. State, 88 Tex.Cr.R. 248, 251, 226 S.W. 405, 407[8]. See, also, State v. Sadowski (Mo.Sup.) 256 S.W. 753, 755[8]; State v. Massey, 274 Mo. 578, 593, 204 S.W. 541, 545. Gonzales v. State, supra, is to the effect the prejudicial error lies in showing the conviction of another for the same offense and not the mere showing of confinement in the penitentiary. It thus appears appellant's counsel adduced the questionable portion of the testimony, and, manifestly, appellant is in no position to complain.

Appellant's assignment of error attacking instruction No. 1 is not before the court, because appellant saved no exception to the action of the court in giving any instruction. State v. Mosley (M...