State v. Lenzner

• Decision Date: 21 March 1936
• Docket Number: 34129
• Parties: The State v. Daniel Lenzner, Appellant
• Court: Missouri Supreme Court

92 S.W.2d 895

338 Mo. 903

The State v. Daniel Lenzner, Appellant

No. 34129

Supreme Court of Missouri

March 21, 1936

Appeal from Greene Circuit Court; Hon. John Smook, Judge.

Reversed and remanded.

Robert D. Durst, Howard C. Potter and Don Purteet for appellant.

The court should have dismissed the jury as requested by defendant's counsel because of the prejudicial remarks made by the prosecuting attorney during his cross-examination of defendant, and because of the prosecuting attorney's remark during his final argument: "The State cannot always show everything it knows," which clearly indicated that the prosecutor was claiming to have knowledge of defendant's guilt aside from the evidence which had been presented to the jury. State v. Pierson, 56 S.W.2d 120, 331 Mo. 636; State v. Mathis, 18 S.W.2d 8; State v. Pinkston, 79 S.W.2d 1046; State v Wigger, 196 Mo. 90, 93 S.W. 390; State v. Volg, 269 Mo. 90, 190 S.W. 304; State v. James, 216 Mo 394, 115 S.W. 994; State v. Guerringer, 265 Mo. 408, 178 S.W 65.

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

The question of discharging the jury because of alleged improper remarks by the prosecuting attorney in the argument is a matter left largely within the discretion of the trial court, and cases will not be reversed because of alleged improper remarks unless the trial court has flagrantly or arbitrarily abused its discretion. State v. Martin, 56 S.W.2d 137; State v. Raines, 62 S.W.2d 727; State v. Marshall, 297 S.W. 63.

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

OPINION

COOLEY

Defendant was convicted of robbery in the first degree committed by means of a dangerous and deadly weapon to-wit, a pistol, was sentenced to imprisonment in the penitentiary for twenty-two years, and has perfected an appeal to this court.

On November 14, 1933, two men entered the farm home of Mr. and Mrs. Frank Blanton and at the point of a pistol or pistols robbed Mrs. Blanton of about $ 200. Mrs. Blanton and her child, a boy about four years old, were alone in the house when the robbers appeared, Mr. Blanton having left earlier in the day on some business. This defendant was apprehended about January 24, 1934, at Hammond, Indiana, and was extradited to Missouri. He lived at Chicago, Illinois. The information herein was filed March 13, 1934, and defendant was brought to trial on March 21, 1934. The State introduced evidence tending to prove the commission of the offense charged and to identify defendant as one of the perpetrators thereof. Mrs. Blanton identified him at the trial as one of the two men who had robbed her and two or three other witnesses identified him as one of two men they had seen in a Ford automobile in the neighborhood of the Blanton home on the day of the robbery. There was also proof that the automobile those men were driving bore Indiana license plates and that, when arrested, defendant was driving an automobile bearing those same license plates.

The defense was an alibi. Defendant testified that he had had no part in the robbery and that at the time of its alleged commission he was in Chicago, Illinois, where he lived. He also gave testimony tending to explain his possession, at the time of his arrest, of the automobile bearing the Indiana license plates in a manner consistent with his innocence of this charge. His alibi was supported by the testimony of some eight witnesses, whose testimony had been taken at a habeas corpus proceeding in Hammond, Indiana, when defendant was resisting extradiction, and which testimony was read in evidence at this trial by agreement of the parties.

In his motion for new trial defendant makes many assignments of error. In his brief here he stresses but three. One of these relates to the court's refusal to grant him a continuance in order that he might take depositions at Chicago or procure the attendance of witnesses from that place to strengthen his alibi defense and develop it more fully than was done at the habeas corpus hearing, the alibi evidence taken at that hearing, read from the transcript thereof, being the only evidence on that point, except his own testimony, that was available to him, unless a continuance should be granted, in view of the short time intervening between the filing of the information and the date fixed for the trial. In his application for continuance he names ten or a dozen witnesses in addition to those who had testified at the habeas corpus hearing, who, he alleges, would testify to his presence in Chicago at the time the robbery is alleged to have been committed.

Another contention stressed is the court's refusal to grant a new trial on the ground of newly discovered evidence, said evidence, as shown by the motion for a new trial and supporting affidavits, being in substance that Mrs. Blanton had stated to friends on the evening of the day of the robbery that she thought she could identify the larger of the two men who had robbed her but that she could not identify the smaller one. Her testimony at the trial was that defendant is the smaller of the two men and she there testified that she could and did identify him. From her cross-examination and certain facts thus developed which may be said to...