State v. Keller
| Decision Date | 13 March 1961 |
| Docket Number | No. 48063,No. 2,48063,2 |
| Citation | 344 S.W.2d 65 |
| Parties | STATE of Missouri, Respondent, v. Edward William KELLER, Appellant |
| Court | Missouri Supreme Court |
Ben J. Weinberger, St. Louis, for appellant.
John M. Dalton, Atty. Gen., Joseph H. Birmingham, Jr., Sp. Asst. Atty. Gen., for respondent.
BARRETT, Commissioner.
Edward Keller has been found guilty of statutory rape and sentenced to two years' imprisonment. It is not necessary to relate the facts, it is sufficient for the purposes of this opinion to say that the evidence supports the jury's finding and verdict.
In his motion for a new trial appellant's assignment of error number 4 is that 'The court erred in directing a verdict of guilty by the jury when he called the jury into open court after the jury had been deliberating upon its verdict for over three and one half hours and stating to the jury that this trial was costing the taxpayers of Jefferson County some $700.00 to try this case and the court further stated in effect that the court was unable to understand why the jury was taking so much time to find the defendant guilty in this case and further asking the jury if they had not heard the evidence and defendant's confession and then directing the jury to go back and return with a verdict, all this taking place at a time when the jury had not yet decided on a verdict either as to the guilt or innocence of defendant.'
The appellant has not filed a brief in this court and the state makes a twofold response to this particular assignment of error; (1) that while defendant's counsel 'objected to the court's remarks as an attempt to influence the jury' counsel did not see fit to 'object at that time that the judge was attempting to direct or coerce a verdict' and did not then request a mistrial and (2) that the judge's remarks did not constitute a prohibited summing up or comment on the evidence or an oral charge to the jury in violation of Rule 26.09, V.A.M.R., but that the judge merely indicated the desirability of the jury's reaching a verdict.
In support of its claim that defense counsel's original objection was insufficient the state relies upon State v. Whitaker, Mo., 275 S.W.2d 316. The opinion in that case does say that there was no motion to declare a mistrial or to discharge the jury, but in its context the statement was merely an additional reason for indicating that there had been no objection whatever to the court's remark. The court said, 275 S.W.2d loc. cit. 321, That is not the situation in this case, there in no objection here to the sufficiency and particularity of the assignment in the motion for a new trial, that assignment concededly meets the requirements of Rule 27.20. Here defense counsel did not move for a mistrial but as the state concedes counsel 'objected to the court's remarks as an attempt to influence the jury.' Specifically the objection was, 'Let the record show the defendant objects to the attempt of the Judge to influence the jury in arriving at a verdict.' For the purposes of securing appellate review and as a foundation for convicting the trial court of error there are numerous instances in which it is necessary for defense counsel to go further than merely objecting or excepting to the court's remarks. To illustrate, in State v. Hudson, 358 Mo. 424, 215 S.W.2d 441, 443, it was held that the judge's remarks had not subjected counsel to ridicule or contempt, that the remarks were not a comment on the evidence or an indication that the judge thought the defendant guilty. In that case the judge's remarks were made during the cross-examination of the state's principal witness, and there a specific objection would not have emphasized the harmful effect of the remarks and any impropriety could have been cured by a proper instruction or admonition to the jury. And again, in that case counsel did not at the time consider the remark improper 'because he made no objection of any kind to the statement, made no motion to have the jury instructed to disregard the statement, and made no motion for a mistrial.' So, generally, the rules require 'a party to avoid or cure error at the trial' by specifically requesting the maximum curative relief in objecting to the remarks of the judge. Frequently, however, 'beyond calling the judge's attention to the error by timely objection and exception * * * there is little that the defense can do in a remedial way.' Annotation 62 A.L.R.2d 166, 259. In these latter instances, where an instruction, a retraction or an admonition would not or could not erase the force and effect of the court's prejudicial remarks, a mere exception or objection at the time is a sufficient foundation or basis for a specific and particularized assignment in the motion for a new trial. For illustrations see State v. Jones, Mo., 197 S.W. 156; State v. Drew, Mo., 213 S.W. 106, and more recently State v. Fields, Mo., 314 S.W.2d 723, where the only objection appeared in the motion for a new trial. As a detailing of the events and the remarks in their context will reveal, the prejudicial effect of the court's remarks could not have been eradicated and there was but little if anything defense counsel could have done at the time other than to object and except.
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State v. Jordan
...the verdict nor overemphasizes the importance of agreement. State v. Raspberry, 452 S.W.2d 169, 175(19, 20) (Mo.1970); State v. Keller, 344 S.W.2d 65, 68(5) (Mo.1961); State v. Stegall, 327 S.W.2d 900, 901(2) (Mo.1959); see MAI--CR 1.10. In this case, the court merely pointed out that a jur......
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...of the occurrence, the trial court was adequately apprised of the error claimed and the question is preserved for review. State v. Keller, Mo., 344 S.W.2d 65, 66. The state cites several cases where questions concerning parole or reduction of sentence were answered with the consent of couns......
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...Hoffman and Anderson cases, supra; State v. Roberts, Mo., 272 S.W.2d 190, 192; State v. Stegall, Mo., 327 S.W.2d 900[1, 2]; State v. Keller, Mo., 344 S.W.2d 65, 68. Considering the admonition in the case at bar as a whole, the court was acting within its discretion to afford the jury ample ......
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