State v. Kelly
| Citation | 107 S.W.2d 19 |
| Decision Date | 21 June 1937 |
| Docket Number | No. 35313.,35313. |
| Parties | STATE v. KELLY. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; Robert J. Kirkwood, Judge.
Elmer Kelly was convicted of robbery in the first degree by means of a dangerous and deadly weapon, and he appeals.
Affirmed.
Roy McKittrick, Atty. Gen., and Aubrey R. Hammett, Jr., Asst. Atty. Gen., for the State.
In the circuit court of the city of St. Louis the appellant was convicted of robbery in the first degree by means of a dangerous and deadly weapon, and his punishment was assessed at ten years' imprisonment in the state penitentiary. From the judgment and sentence of that court, he has duly appealed to this court.
Appellant has not filed a brief in his behalf; therefore, we will examine the assignments of error in his motion for a new trial.
I. The first three assignments of error present nothing for our review because section 3735, R.S.Mo.1929 (Mo.St. Ann. § 3735, p. 3275), requires that each assignment "must set forth in detail and with particularity in separate numbered paragraphs, the specific grounds or causes therefor." Therefore, to say that the verdict is against the law, against the evidence, and is a result of bias, prejudice, and passion, and not based upon the law and competent evidence, is too general to comply with our new trial statute.
II. The appellant's next two assignments of error are that the information does not charge an offense against the law and is vague, indefinite, and uncertain, and does not fully advise him of the cause of the accusation against him. The information, omitting formal parts, charged that the appellant did, with force and arms, by means of a dangerous and deadly weapon, to wit, an automatic pistol, make an assault upon Charles Jones; and did put him in fear of an immediate injury to his person; and by force and violence to his person did rob, steal, and take and carry away, with the felonious intent to permanently deprive the owner of the use thereof, the sum of $150, the property of said Charles Jones.
Section 4058, R.S.Mo.1929 (Mo.St.Ann. § 4058, p. 2856), defines "robbery in the first degree." The information follows the language of this section, which requires felonious taking of property of the owner in his presence and against his will by putting him in fear of immediate injury to his person. Section 4061, R.S.Mo.1929 (Mo.St.Ann. § 4061, p. 2863), fixes the punishment to be inflicted if the robbery is committed with a dangerous and deadly weapon; such an allegation in an information invokes the more severe penalty prescribed in the first provision of this section. The fact that the information fails to allege that the automatic pistol was "loaded" does not keep it from being a dangerous and deadly weapon. State v. Kowertz, 324 Mo. 748, 25 S.W.(2d) 113; State v. Moore (Mo.Sup.) 80 S.W.(2d) 128. We think the information is definite and certain, and does fully advise the appellant of the accusation against him.
III. The next two assignments of error are to the effect that the appellant was not served with a full, true, and complete copy of the information, with all indorsements thereon. These alleged errors appear for the first time in the motion for a new trial and, therefore, are not for our consideration. State v. Keller (Mo.Sup.) 281 S.W. 960.
IV. The appellant next complains that the verdict is insufficient and is excessive, and upon its face shows that it is the result of bias, prejudice and passion.
The verdict is as follows: "We, the jury in the above entitled cause, find the defendant guilty of Robbery first degree by means of a dangerous and deadly weapon as charged in the information, and assess the punishment at imprisonment in the penitentiary for ten (10) years."
The verdict, responsive to the issues, finds the appellant guilty as charged in the information and assesses the punishment. It does not show on its face to be excessive or the result of prejudice because it is the minimum punishment that can be assessed under the charge of the information.
V. The appellant next complains that the court erred in failing to sustain his demurrer at the close of state's evidence. "It has been repeatedly held that, where the defendant does not stand on his demurrer at the close of the state's case, but proceeds to put in his own evidence, he thereby waives his demurrer to the state's evidence, and takes his chance of aiding the state's case." State v. Bigley (Mo. Sup.) 247 S.W. 169, 171. We rule this contention against the appellant.
VI. The appellant next assigns as error the overruling of his demurrer offered at the close of the case. The evidence tended to show that Charles Jones operated a restaurant in the city of St. Louis; that on August 24, 1935, he had locked the front door; that he was counting the money received from the day's receipts when he observed through the front window a man starting across the street and coming toward the restaurant; that the prosecuting witness was the only person in the restaurant; that when the appellant reached the door Jones unlocked it, as was his custom, as he thought he recognized him as a person who had been in there previously; that after opening the door Jones walked toward the rear end of the restaurant so he could go behind the counter; that as he was making the turn behind the counter, the appellant put a pistol under his face...
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