State v. Hodge
| Decision Date | 14 February 1966 |
| Docket Number | No. 51180,No. 2,51180,2 |
| Citation | 399 S.W.2d 65 |
| Parties | STATE of Missouri, Respondent, v. James Beard HODGE, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, William A. R. Dalton, Sp. Asst. Atty. Gen., Springfield, for respondent.
Wyvetter H. Younge, St. Louis, for appellant.
BARRETT, Commissioner.
The appellant James Beard Hodge, with prior felony convictions, including a federal narcotics conviction (RSMo 1959, Sec. 195.200(1)(5), V.A.M.S.), has been found guilty of possession of heroin, a narcotic drug, and sentenced to ten years' imprisonment. After alleging the prior convictions (RSMo 1959, Sec. 556.280, V.A.M.S.), the information alleged, in the language of the statute (RSMo 1959, Sec. 195.020, V.A.M.S.) a violation in that on March 13, 1964, the appellant 'did then and there unlawfully and feloniously have in his possession and under his control, a certain quantity of a narcotic drug, to wit: sixteen capsules of Heroin, of the total weight of 1.16 grams.' State v. Virdure, Mo., 371 S.W.2d 196, 198; State v. Worley, Mo., 375 S.W.2d 44, 47.
The proof in support of the charge was that at 2:20 in the morning of March 13 police officers Homann and Zelle were patrolling the Sarah Avenue and Enright Street areas. They were proceeding south on Sarah when they 'observed a man walking north on the west side of Sarah towards us, and he was acting suspiciously; he was very nervous; he was looking around, and we pulled up and stopped him, and when we got out of the car--we were in an unmarked car--he realized we were (uniformed) police officers, and threw a small bottle that he was holding in his right hand away.' Homann said that as they pulled to the curb 'he was seen with his right hand to drop an object to the sidewalk.' Homann picked up the 'brown-colored bottle consisting of sixteen white capsules with a white powder substance in same' and, suspecting that the bottle contained narcotics, the officers arrested the defendant. He admitted dropping the bottle but said he did not 'know what the contents of the capsules was.' One of the officers took the bottle and its contents to the police laboratory and remained until a chemist analyzed the powder and informed the officer that it was in fact heroin. The technician who examined the capsules testified that all sixteen contained heroin with a total weight of 1.16 grams or 1160 milligrams.
While proof establishing constructive possession of the narcotic drug is sufficient (State v. Worley, Mo., 375 S.W.2d 44, 47), the circumstances adduced here are almost identical with the facts and circumstances in State v. Owens, Mo., 391 S.W.2d 248, and needless to say sustain the jury's finding of the appellant's guilt. One of the appellant's seven assignments of error is that the jury verdict is against the weight of the evidence in that the state failed to 'prove that the Defendant had possession of the narcotic drug' but the weight of the evidence is not an open question in this court. State v. Perkins, Mo., 382 S.W.2d 701, 703.
Another of the assignments is that 'the errors committed by the Court as alleged in paragraphs 1, 2, 3, 4, and 5 were so highly prejudicial as to deprive the Defendant of a fair trial as guaranteed by Article I, Section 18(a) and Article I, Section 10 of the Missouri Constitution [V.A.M.S.], and Article VI and Article XIV of the Constitution of the United States of America.' While the five individual specifications are sufficient in and of themselves as to their specific subject matter, this particular assignment is so lacking in detailed particularity and specification of grounds or causes (Criminal Rule 27.20(a), V.A.M.R.) that it does not present a reviewable question, it certainly does not raise or present any question of constitutional law or of the infringement of constitutional rights.
Two of the specific assignments of error have to do with the appellant's exercise of his right not to testify. RSMo 1959, Sec. 546.270 V.A.M.S.; Criminal Rule 26.08. In one assignment it is asserted that the court erred in failing to instruct the jury that no inference was to be drawn from his failure to testify or that his failure to testify 'shall not be construed to affect the innocence or guilt of the accused.' In the other assignment it is urged that in violation of the rule and the statute the prosecuting attorney in his argument 'referred' to his failure to 'testify' and that, therefore, he is entitled to a new trial. Criminal Rule 26.08; RSMo 1959, Sec. 546.270, V.A.M.S. As to the first assignment it is not necessary to consider the rationale of the rule in detail, it is sufficient to say that the mere refusal of such an instruction is not in and of itself prejudicial error. State v. Perkins, Mo., 382 S.W.2d l. c. 707; State v. West, Mo., 356 S.W.2d 880, 882. In addition to the usual analysis and reasons given in considering alleged violations of the rule and the statute (State v. Conway, 348 Mo. 580, 585-589, 154 S.W.2d 128, 132-134; State v. Kennedy, Mo., 396 S.W.2d 595, 598-599) it may be observed in passing that the rule and the statute not only prohibit 'any attorney in the case' from referring to the defendant's failure to testify, the fact may not 'be considered by the court or jury before whom the trial takes place' (Criminal Rule 26.08; RSMo 1959, Sec. 546.270, V.A.M.S.) and it is not readily apparent in view of this prohibition just how the court could properly instruct the jury on the subject.
The specific language complained of is contained in this portion of the prosecutor's closing argument: In this connection it must be noted that not only did the appellant not testify he called no witnesses and of course offered no evidence. Again upon this record and assignment of error it is not necessary to consider the subject in detail, the emphasized sentence is a paraphrase of the language employed in State v. Hayzlett, Mo., 265 S.W.2d 321, and State v. Michael, Mo., 361 S.W.2d 664, and certainly in its context is not an infringement of the rule and statute. State v. McCleave, Mo., 256 S.W.2d 814; State v. Johnson, 362 Mo. 833, 245 S.W.2d 43; State v. Spradlin, 363 Mo. 940, 254 S.W.2d 660; State v. Janes, 318 Mo. 525, 1 S.W.2d 137.
There is no objection to the principal instruction which as with the information submitted in the language of the statute the defendant's guilt or innocence of the offense of possession of...
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State v. Warters
...Turner, Mo., 320 S.W.2d 579; number 6, State v. Butler, Mo., 310 S.W.2d 952; instructions 7 and 8 on remarks of counsel, State v. Hodge, Mo., 399 S.W.2d 65, 69, and 23A C.J.S. § 1297, p. 721 and, finally, on the necessity of a unanimous verdict, State v. Hale, Mo., 371 S.W.2d 249, 257--258,......
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...F.2d 178; United States v. Johnson (4th Cir. 1964), 337 F.2d 180; Leathers v. United States (9th Cir. 1957), 250 F.2d 159; State v. Hodge, 399 S.W.2d 65 (Mo.1966); Schweizer v. State, 399 S.W.2d 743 Aull points to several other remarks made by the assistant district attorney during closing ......
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State v. Amerson, 58118
...considered by the trial court in ruling on the motion for new trial, but it is not a matter reviewable by an appellate court. State v. Hodge, Mo., 399 S.W.2d 65. This court determines only whether there was substantial evidence to support the verdict, and there obviously was.' State v. Morg......
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...trial, and the reviewing court cannot reverse a judgment on the ground the verdict is against the weight of the evidence. State v. Hodge, Mo., 399 S.W.2d 65, 67(2); State v. Perkins, Mo., 382 S.W.2d 701, 703(1, 2); City of Webster Groves v. Quick, Mo.App., 323 S.W.2d 386, 392(11). The assig......