State v. James

• Decision Date: 12 June 1961
• Docket Number: No. 48208,No. 2,48208,2
• Citation: 347 S.W.2d 211
• Parties: STATE of Missouri, Respondent, v. Frank JAMES, Appellant
• Court: Missouri Supreme Court

Page 211

347 S.W.2d 211

STATE of Missouri, Respondent, v. Frank JAMES, Appellant.

No. 48208.

Supreme Court of Missouri, Division No. 2.

June 12, 1961.

William H. Bruce, St. Louis, for appellant.

Thomas F. Eagleton, Atty. Gen., Richard R. Nacy, Jr., Sp. Asst. Atty. Gen., for respondent.

BOHLING, Commissioner.

Frank James appeals from a conviction of robbery in the first degree and a judgment imposing a sentence of ten years' imprisonment under the habitual criminal act. Defendant has filed no brief. We review the essential record and the assignments in defendant's motion for new trial properly preserving alleged error for review. Supreme Court Rules 27.20, 28.02, 28.08; State v. Brewer, Mo., 338 S.W.2d 863, 865. Defendant's said motion purports to set forth twenty-two grounds for a new trial. It attacks the refusal of requests for a judgment of acquittal (Sup.Ct.R. 26.10); the assessment of the punishment under Laws 1959, s.B. 117, now Sec. 556.280; numerous denials of requests for a mistrial; the exclusion of evidence; the closing argument on behalf of the state; the giving of an instruction, and alleged misconduct of a juror and the state's attorney. (Statutory references are to RSMo 1959 and V.A.M.S.) Notwithstanding defendant's motion for new trial is abounding in words, a number of the assigned trial errors are too general to comply with Sup.Ct.R. 27.20(a) and others find no support in the record before us. The reports should not be burdened with setting forth all the lengthy assertions in defendant's motion. State v. Greer, Mo., 313 S.W.2d 711, 712.

A number of assignments in defendant's motion for new trial, some of which are insufficient to preserve any issue for review under Sup.Ct.R. 27.20(a), may be disposed of by a ruling on the submissibility of the state's case.

Robbery in the first degree, so far as material here, may be committed by feloniously taking the property of another in the presence of and against the will of one in lawful possession of it by violence to the person of such possessor or by putting such person in fear of some immediate injury to his person. Sec. 560.120; State v. Thompson, Mo., 299 S.W.2d 468. The facts here involved are substantially the facts considered sufficient on defendant's appeal from a prior conviction imposing a sentence of life imprisonment for this offense in State v. James, Mo., 321 S.W.2d 698, 700; which remanded the case because of trial error. We need not detail all the evidence favorable to the state. On July 13, 1957, Mrs. Rose Salensky, 66 years of age, was in charge of a combined grocery, meat and liquor store in St. Louis city, the property of Dave Sherp and Mildred Sherp, Rose's daughter. The Sherps were out of the city. Rose had previously owned the store. Miss Mary Lee, 30 years of age, Norman Lee Benson, about 16, and Ozell Brooks, another boy, who did not testify, were helping in the store. Defendant had been in the store that morning. A man, later identified by witnesses to be defendant, entered the store about 3:30 p. m. or earlier, wearing a bib cap, pulled down, walked over to Rose, who was standing by two cash registers and had not noticed him, grabbed her, picked up a little gun on a nearby shelf, saw it was a toy, threw it through an opening in a nearby partition into the kitchen, started pushing Rose into the kitchen and threw her onto the kitchen floor. Rose had hold of defendant and he fell on top of her. She became frightened and started screaming. Mary Lee ran to the kitchen, saw the man and Rose on the floor, went back and gave the burglar alarm. She started back to the kitchen; defendant passed her and slapped her; went to and opened a cash register, and took $178 from it. Another man, large, said 'Come on, Frank, lets gen out of here,' and defendant ran out of the store with the money. In the meantime Mary Lee threw a 7-Up bottle at defendant, striking him on the forehead, and also the top of a broiler, striking him in the back. A jury could find defendant guilty of first degree robbery by violence or by putting the victim in fear. State v. Whitley, 327 Mo. 226, 36 S.W.2d 937[2, 3]; State v. Gaines, Mo., 261 S.W.2d 119; State v. Hall, Mo., 7 S.W.2d 1001; State v. Parker, Mo., 324 S.W.2d 717. The testimony of the state's witnesses may not have harmonized in every particular, but was consistent on the esdential elements of the effense charged and stands uncontradicted of record. Their credibility and the weight of their testimony was for the jury. State v. Benjamin, Mo., 309 S.W.2d 602.

At the close of the state's opening statement defendant requested a judgment of acquittal on the ground said statement did 'not mention in any way, shape, manner or form the use of any weapon of any kind and that the information' charged defendant with 'armed robbery.' The information charged defendant with robbery in the first degree as defined in Sec. 560.120 and not under Sec. 560.135, which merely permits a greater punishment for robbery in the first degree by means of a dangerous and deadly weapon. The opening statement covered the offense under Sec. 560.120. The denial of defendant's request was proper. Consult State v. Gabriel, 342 Mo. 519, 116 S.W.2d 75, 77; State v. Shuls, 329 Mo. 245, 44 S.W.2d 94, 96[4-6].

Defendant's contention that the assessment of his punishment at ten years' imprisonment by the trial judge under Laws 1959, S.B. 117, repealing and reenacting Sec. 556.280, the habitual criminal act, effective subsequent to the commission of this offense, causes said S.B. 117 to be an ex post facto law and contravene Art. I, Sec. 13, Mo.Const., and Art. I, Sec. 10, Cl. 1, and Amendments I, V and XIV, U.S.Const., stands sufficiently answered in prior rulings of this court. See State v. Payne, Mo., 342 S.W.2d 950, 955, and cases there cited; also State v. Wolfe, Mo., 343 S.W.2d 10, 12. Amendments I and V, U.S.Const., refer to the Federal, not the state, government. The jury sentenced defendant to life imprisonment for this offense under prior Sec. 556.280. State v. James, Mo., 321 S.W.2d 698.

Many assignments in defendant's motion claim error in the court's refusal of a mistrial. The declaring of a mistrial rests largely in the trial court's discretion, but it is considered that this power should be exercised only in extraordinary circumstances. State v. Baker, Mo., 293 S.W.2d 900, 902; State v. Thost, Mo., 328 S.W.2d 36. A defendant, of course, should timely present his objections (State v. Velanti, Mo., 331 S.W.2d 542); and is generally 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 on the ground the court refused a mistrial when he does not request a mistrial. State v. Benjamin, Mo., 309 S.W.2d 602, 606, citing cases; State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878.

At the close of the cross-examination of Mrs. Sherp the following occurred: 'q. During all this time that you have been operating your store and coming down here for several days at a time, Frank James has been in jail, hasn't he? A. I know that.

'Mr. Cahill: Your Honor, just a minute. If Frank James has been in jail it is his own fault, not the fault of the Circuit Attorney.'

The court stated there was no showing that this witness would or would not know where Frank James was. Thereupon, defendant requested the court to declare a mistrial on the ground 'the outburst of counsel for the state is so prejudicial as to express his opinion, his personal conviction of the guilt or innocence of the defendant.' The court refused to declare a mistrial. The statement did not express an opinion of the state's counsel of defendant's guilt or innocence of the charge on trial. Here the objection by the state, and there is no showing it was an 'outburst,' was provoked and occasioned by defendant's question of a witness who did not possess testimonial qualifications to the fact involved. It is not contended the testimony was competent. See 22 C.J.S. Criminal Law Sec. 600, p. 922, note 80. Defendant would distort counsel's statement, which, viewed in its context, is more readily applicable to the right of defendant to secure bail for his release from jail pending trial. We find no abuse of the discretion resting in the trial court. State v. Demaggio, Mo., 152 S.W.2d 71, 72; 23 C.J.S. Criminal Law Sec. 1108, p. 587.

Defendant says a mistrial should have been declared because of asserted misconduct of witness Mildred Sherp in stating during cross-examination that she was ill and, after leaving the stand, staggering. The trial court stated the witness had not staggered. Defendant interposed no objection during the cross-examination of this witness. We find no error.

Defendant says the court erred in overruling his requests for a mistrial during the testimony of witness Rose Salensky on account of (a) the leading questions asked the witness on direct examination; (b) voluntary unresponsive answers of the witness about the presence of another man with a knife at the robbery; and (c) that during the cross-examination of the witness the state argued the case under the guise of making an objection. The record discloses with respect to '(a)' that the court sustained all of defendant's objections to leading questions that were well taken and the questions were reframed, and defendant requested a mistrial in only two instances. With respect to '(b)' above, the witness on direct examination and again on cross-examination (when asked about the boy Ozell Brooks, an employee) volunteered the statement about the presence of another man with a knife. In the first instance the court instructed the jury to disregard this statement of the witness, as did the court in the second instance, but denied the request for a mistrial first made during the...