State v. Lindner
| Decision Date | 10 October 1955 |
| Docket Number | No. 1,No. 44397,44397,1 |
| Citation | 282 S.W.2d 547 |
| Parties | STATE of Missouri, Respondent, v. Richard Frank LINDNER, Appellant |
| Court | Missouri Supreme Court |
John J. Kelly, Jr., St. Louis, for appellant.
John M. Dalton, Atty. Gen., Winston Cook, Asst. Atty. Gen., for respondent.
COIL, Commissioner.
Appellant, herein called defendant, was convicted of burglary in the second degree and the jury, having found further that he had been discharged upon compliance with a sentence imposed upon a conviction of a prior felony, fixed his punishment at 10 years in the penitentiary. He has appealed from the judgment entered upon that verdict.
Defendant has not filed a brief. We, therefore, examine the assignments of error contained in his motion for new trial.
Defendant's contention by new trial assignments 5 and 6 that the trial court erred in overruling his motions for judgments of acquittal is without merit. This, because the state's evidence was substantial and sufficient to support a conviction of burglary in the second degree and a finding of a prior felony conviction under the Habitual Criminal Act. That evidence showed that in the early morning of August 2, 1953, police officers, who had been summoned to a grocery store at 3333 Clara Avenue in St. Louis, found defendant and another inside that store which contained goods, wares, and merchandise; that a front door had been forced open by means of 'jimmying' the lock thereon; that upon being so ordered defendant came from the interior of the store and stated that his name was Frank Jesse Blank and that he had not been in the store but only passing by; that the proprietors of the store had locked all openings, including the door forced open, before their departure on the prior evening; and that police officers found in the store two guns and two crowbars which were not the property of the store owners and which had not been there when the store was priorly locked by the proprietors. The foregoing evidence was sufficient to sustain a conviction of burglary in the second degree. State v. Grant, Mo., 275 S.W.2d 332, 333, 334; State v. Miller, Mo., 202 S.W.2d 887, 889[1, 2].
The state's evidence further showed, and the jury found, that defendant had theretofore been convicted of, or had entered guilty pleas to charges of prior felonies, had been sentenced therefor, and discharged upon compliance with such sentences. Thus the punishment assessed was that prescribed by Sections 556.280 and 560.095 RSMo 1949, V.A.M.S.
Defendant's new trial assignment 28 charges that the trial court erred in overruling defendant's motion for a mistrial made during defendant's attorney's jury argument, for the assigned reason that the state's attorney's objection to the argument constituted a comment on the failure of defendant to testify in the case. This contention must be sustained.
During defendant's attorney's argument the following occurred: (Bracketed insertions and italics ours.)
Supreme Court Rule 26.08, 42 V.A.M.S., which is a verbatim copy of Section 546.270 RSMo 1949, V.A.M.S., provides in pertinent part that: 'If the accused shall not avail himself * * * of his * * * right to testify * * * it shall not * * * be referred to by any attorney in the case * * *.' As was well said in State v. Hayzlett, Mo., 265 S.W.2d 321, 323[3, 4]:
If, in the instant case, the assistant circuit attorney did in fact refer to defendant's failure to testify, defendant is entitled to a new trial, unless there was a waiver by defendant of the protection of the statute and rule.
We think it is clear from the above-quoted portion of the record that the state's attorney did in fact refer to the defendant's failure to testify. We reasonably can give no other construction to his statement that: 'This boy' admittedly referred to defendant. The two phrases construed together were tantamount in meaning to a statement that 'this boy hasn't said anything in this case.' Except for a direct statement that 'defendant has not testified', we can conceive of no clearer way to express that idea than by the phraseology used in the instant case.
The language is not subject to the construction that the statement referred to the failure of the defense as a whole to combat the facts adduced by the state tending to prove defendant's guilt, as was the situation in State v. Johnson, 362 Mo. 833, 839, 245 S.W.2d 43, 46, and in State v. Hayzlett, supra, 265 S.W.2d 323, and other cases reviewed therein at page 324.
Did defendant waive the protection of the statute and the Supreme Court Rule by inviting the state's attorney's statement? We think not. It is apparent from the above-quoted portion of the record that both the assistant circuit attorney and the trial judge either misunderstood the defendant's attorney or misconstrued what he had clearly and unambiguously stated. Defendant's attorney said, 'And furthermore the witnesses that were produced by the State testified that this boy says he was only, or I believe he said he was just walking along there.' (Italics ours.) Now that statement was a substantially accurate restatement of the testimony of some of the state's witnesses. Police officers had testified that defendant told them that he was not in the building--'he said he was passing by there'--'he stated * * * 'I wasn't in the building, just passing by''--'He said he was just walking by there.' We think defendant's counsel's statement was not subject to the construction that counsel said, or intended by his statement, that defendant had testified that he was walking along there. The answer to any such contention is the plain fact that the record shows that counsel said state's witnesses had testified that the defendant had said he was just walking along there. And, of course, both the assistant circuit attorney and the trial judge knew that defendant had not testified. Consequently, we cannot believe that both misinterpreted or misconstrued the clear and unambiguous statement. We think the reasonable conclusion is that they misunderstood the actual words used by defendant's counsel. Unfortunate as this may be, it cannot militate against defendant's right to a new trial, and this irrespective of how clear and cogent the evidence of defendant's guilt may seem to be.
There are some other assignments of error we should determine because of the likelihood of the recurrence of the situations out of which they arose.
Defendant's new trial assignments 8 to 13, inclusive, and 16 to 18, inclusive, allege error in the admission of state's exhibits 1 and 2 (revolvers), 3 (two pinch bars), 4 (six .38-caliber bullets), and 5 (one...
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