State v. Jones
| Decision Date | 17 November 1936 |
| Parties | The State v. Arthur Jones, alias Will Jackson, alias Johnny Starks, Appellant |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis; Hon. Chas. B Williams, Judge.
Affirmed.
Emanuel Williams for appellant.
Roy McKittrick, Attorney General, and Russell C Stone. Assistant Attorney General, for respondent.
This is an appeal from a judgment of the Circuit Court of the City of St. Louis sentencing appellant to a term of fifteen years in the penitentiary on his conviction, under the Habitual Criminal Statute, for attempted robbery in the first degree by means of a dangerous and deadly weapon. Appellant not having favored us with a brief, we look to the motion for a new trial for his assignments of error, of which there are three. They relate to (1) the manner in which defendant was charged; (2) the propriety of receiving evidence of his prior conviction before appellant took the stand; and (3) an alleged erroneous instruction as to the matter of punishment.
Inasmuch as the sufficiency of the evidence is not challenged, a brief outline of the facts will suffice. The evidence on the part of the State was to the effect that at about eleven-thirty P. M., on August 29, 1932, one James C. Foster, a watchman, was walking south on the west side of Theresa Street in the city of St. Louis. As he proceeded to cross the intersection of that street and Market Street, he observed two colored men near the southwest corner of the intersection. They were standing near, or leaning against a building on that corner, and on the Theresa Street side. There was a street light on the corner. As Foster reached the point where the first colored man was, the second one stepped up, and, as he described it, "throwed a gun in my stomach and told me to stick them up." Whereupon Foster reached for his gun, and "he throwed a gun in my face and shot me, and I fell." He was shot on the right side of the face. Both colored men then left the scene. An ambulance was called, and Foster was removed to a hospital. Appellant was not apprehended on this charge for nearly two years. When arrested he made a written confession in which he admitted being present at the time and place of the shooting, but attributed the attempted robbery and shooting to his companion, Milburn. Foster's identification of appellant as his assailant was unequivocal. Appellant did not take the stand in his own behalf. Other pertinent facts will be stated in the course of the opinion in connection with the point or points to which they relate.
I. The first proposition mentioned above is covered by the following recitals of the motion for a new trial:
At the close of the opening statement on the part of the State, in which reference was made to the participation of another in the alleged offense, appellant asked that the jury be discharged, and a mistrial declared, on the asserted ground that appellant had a right to be charged with his codefendant. The statute (Sec. 3553, R. S. 1929, Sec. 3553, Mo. Stat. Ann., p. 3152) does provide that all concerned in an offense jointly committed shall be included in one indictment or information, but by the same section it is expressly provided that "the failure to so join them shall not invalidate the pleadings." In State v. Steptoe, 65 Mo. 640, which was decided before the proviso just mentioned was added to the section the court, in reviewing the ruling on a motion to quash for failure to comply with said section, said, We...
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... ... cross-examination about the former conviction, on the ground ... that the record was the best evidence." ... There ... can be no doubt that the italicized statement in this English ... case and one to the same effect in State v. Jones, ... 339 Mo. 893, 896, 98 S.W.2d 586, 588(5), are literally and ... legally correct. But as to whether and when the issue of ... former conviction should be further submitted in the ... alternative, or converse; and on the question whether a ... judicial admission by the defendant of his ... ...
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