State v. Kaner

• Decision Date: 23 April 1936
• Docket Number: 34519
• Citation: 93 S.W.2d 671,338 Mo. 972
• Parties: The State v. Dave Kaner, Appellant
• Court: Missouri Supreme Court

93 S.W.2d 671

338 Mo. 972

The State v. Dave Kaner, Appellant

No. 34519

Supreme Court of Missouri

April 23, 1936

Rehearing Denied April 23, 1936.

Appeal from Circuit Court of City of St. Louis; Hon. Fred J Hoffmeister, Judge.

Affirmed.

H P. Lauf and John O. Bond for appellant.

(1) In an indictment great strictness and technical accuracy are exacted; nothing can be left to intendment or implication and where by mistake the prosecuting witness, and not defendant, is charged with the commission of the offense the defect is fatal. State v. Edwards, 70 Mo. 480; State v. Anderson, 250 S.W. 70; State v. Little, 287 S.W. 809; State v. Sherrill, 278 S.W. 992; State v. Zingher, 259 S.W. 451. (2) Where defendant's defense is an alibi and the court submits instructions on said defense another instruction that jury may convict defendant "on or about" the day of the crime and further instructs that the jury may convict if offense was committed within three years of the filing of the indictment, such instruction is misleading and confusing and in conflict with defendant's alibi instruction. State v. Fellers, 140 Mo.App. 723; State v. Campbell, 260 S.W. 542; State v. Socwell, 300 S.W. 683; State v. Campbell, 22 S.W. 645. (3) Where defendant proves an alibi beyond any reasonable doubt the court errs in refusing to grant a new trial. Sec. 3734, R. S. 1929; State v. Prendible, 165 Mo. 329; State v. Harmon, 296 Mo. 391.

Roy McKittrick, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.

(1) The record proper does not disclose that the bill of exceptions was ever filed. Therefore, only the record proper is before the court. State v. Barr, 34 S.W.2d 477; State v. Kelsay, 18 S.W.2d 91; State v. Miller, 18 S.W.2d 492; State v. Mueller, 230 S.W. 349; State v. White, 288 S.W. 18. (2) The indictment is in proper and approved form and charges an offense. State v. Butler, 289 S.W. 636; State v. Golden, 289 S.W. 904.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

Dave Kaner (appellant) and Sol Grupper were jointly indicted for robbery in the first degree by means of a dangerous and deadly weapon. Sol Grupper was granted a severance. Dave Kaner was tried first and found guilty, his punishment being assessed at ten years' imprisonment in the State penitentiary. He appeals.

The prosecuting witness, Albert Weiss, had conducted a jewelry business for a number of years, and on April 25, 1933, was engaged in such business at 4417 South Kingshighway, St. Louis City, Missouri. Weiss testified that appellant, whom he identified at the trial, first entered his jewelry store between nine-thirty and nine forty-five A. M. on April 25, 1933, and bargained with him concerning the purchase of a ring to be set with a small diamond. After agreeing upon a price, appellant stated he would make a down payment of $ 5 that evening and pay so much per week until the purchase price was paid. As appellant was leaving, Weiss asked him his name and appellant replied "Graydon;" and, with Weiss continuing to look at him, stated "maybe it was Gradinsky once upon a time." Appellant told Weiss he was in the wall paper business and was then working on Sutherland Avenue. Weiss had his suspicions aroused and, when appellant left, went to the door and observed appellant enter a Chevrolet coupe, occupied by another man, some distance from the store. He watched the Chevrolet and, seeing it turn into Sutherland Avenue, his suspicions were allayed. Weiss then went to the rear of his store and in a short time saw another man, later identified by him as Sol Grupper, walking past the store. Soon thereafter appellant entered, stating he had decided not to wait until night to make his deposit on the ring. Appellant made some complaints about the price of the ring, and, upon stating he would take it, turned sideways and placed his hands in his pocket and stood that way a short time. Defendant Grupper then entered, pulled a gun from his pocket and told Weiss to keep quiet. Grupper marched Weiss back of a partition in the store and Weiss heard someone "rifling" his safe. Grupper had his gun on Weiss and, searching Weiss, took about $ 73, his ring and watch. Grupper then asked the other party if he was ready and received an affirmative answer. Weiss then saw appellant come from his safe and walk out. Defendant Grupper then made Weiss lie down on the floor, instructing him to remain there ten minutes, and then Grupper left. The total value of the property taken was approximately $ 1173.

Appellant denied any connection with the crime and offered witnesses to establish an alibi. This evidence, if believed by the jury, justified an acquittal.

Appellant contends the indictment fails to charge an offense. The indictment, in so far as material, alleged that the defendants ". . . in and upon one Albert Weiss feloniously did make an assault; and the said Albert Weiss in fear of immediate injury to his person, then and there feloniously did put," etc. Appellant (relying on the rule that nothing may be left to intendment or implication in indictments and informations, citing State v. Anderson, 298 Mo. 382, 390, 250 S.W. 68, 70(1) and other cases) contends the effect of "; and" was to make Albert Weiss the subject of all further action alleged in the indictment; that is, that Albert Weiss feloniously did put himself in fear of immediate injury to his person, etc. The assignment is hypercritical, technical and without substantial merit. Under the old common law many offenses subjected the prisoner to the death penalty, and courts, out of considerations of humanity, required a definiteness, precision and completeness of statement that would defy the ingenuity of astute counsel that defendants be not punished beyond their just deserts. The reason for the rule has long ceased to exist; and, as reason is the life of the law and courts should in some measure keep pace with the progress of civilization [Ex parte Keet (en banc), 315 Mo. 695, 700, 287 S.W. 463, 465], by legislation [See Sec. 3563, R. S. 1929, Mo. Stat. Ann., p. 3160; Sec. 3508, R. S. 1929, Mo. Stat. Ann., p. 3131] and by judicial interpretation, within the permissible limits, the technical accuracy exacted by the common-law rules of pleading (in instances, tending to confuse rather than clarify) have been relaxed in many respects [see annotations to foregoing sections]. The common-law rule that a criminal charge must leave nothing to intendment or implication [State v. Anderson, supra] had reference to allegations necessary to inform a defendant of the nature and cause of the accusation [State v. Hascall, 284 Mo. 607, 615, 226 S.W. 18, 20(2); State v. Wilson (Mo.), 237 S.W. 776, 777(1)]. The function served by the ";" in the indictment was the separation of major sentence elements with more directness than by a ",". While the use of a "," is the more approved form when the connective "and" is used, the context of the instant indictment, gathered from reading it as a whole, informed appellant of the nature and cause of the accusation notwithstanding the clerical or typographical slip substituting the ";" for a ",". The indictment charged a statutory offense [Sec. 4058, R. S. 1929, Mo. Stat. Ann., p. 2586] and apparently was adapted from the information in State v. Reich, 293 Mo. 415, 421, 239 S.W. 835, 836(1). It follows, with the exception of the ";", the indictments approved as to form and substance in State v. Faudi (Mo.), 11 S.W.2d 1014(1), and State v. Wallace (Mo.), 278 S.W. 663(1). [See, also, State v. Boone (Mo.), 289 S.W. 575, 577(2), and cases cited; State v. Butler, 316 Mo. 264, 289 S.W. 636, 637(1), and cases cited; State v. Holmes (Mo.), 289 S.W. 904, 906 (1), and cases cited.] "Bad punctuation will not vitiate an indictment." [31 C. J., p. 658, n. 62; Ward v. State, 50 Ala. 120, 122(2), discussing a ";".]

Appellant assigns as error the court's refusal to sustain his demurrer at the close of the case because, he contends, the overwhelming weight of the evidence established his alibi. Weiss' identification of appellant was positive and was based upon his personal observation of appellant's looks, his walk, complexion, size, height, voice, etc. Had it been less positive, it still would have been sufficiently substantial to submit the issue to the jury (whose duty it was to determine its weight and value), and sustain the verdict of guilty [State v. Blackmore, 327 Mo. 708, 715(1), 38 S.W.2d 32, 34(1), and cases cited], which settled the conflict between the State's and appellant's evidence on the issue [State v. Johnson (Mo.), 55 S.W.2d 967, 968(2); State v. Willis (Mo.), 37 S.W.2d 407, 408(3); State v. Simmons, 332 Mo. 247, 252(1), 58 S.W.2d 302(2)]. State v. Copeland, 335 Mo. 140, 148(2), 71 S.W.2d 746, 751(7) states: "The trial court alone is empowered to set aside a verdict on the ground that it is against the weight of the evidence." [See, also, State v. Evans, 334 Mo. 914, 918(1), 68 S.W.2d 705, 707(1); State v. Miller (Mo.), 12 S.W.2d 40, 42(7); State v. Simmons, supra.]

Appellant's motion for new trial attacks each of the several given instructions in separate paragraphs with like allegations to-wit: "Because the court erred in giving to the jury instruction No. [setting forth the number], said instruction being misleading and a misstatement of the law, and a misapplication of the law as applied to the facts and evidence, and assumes the guilt of the defendant, and further, is based upon facts not in evidence, is argumentative and inconsistent with all instructions given by the court." The assignment does not point out wherein said instruction (as alleged in the assignment) is misleading, or misstates or misapplies the law as applied to the evidence, or assumes appellant...