State v. Londe

• Citation: 132 S.W.2d 501,345 Mo. 185
• Decision Date: 31 October 1939
• Docket Number: 36748
• Parties: The State v. Isadore Londe, Appellant
• Court: United States State Supreme Court of Missouri

132 S.W.2d 501

345 Mo. 185

The State v. Isadore Londe, Appellant

No. 36748

Supreme Court of Missouri

October 31, 1939

Appeal from Circuit Court of City of St. Louis; Hon. William B Flynn, Judge.

Affirmed.

William J. Hough and Sigmund M. Bass for appellant.

(1) The court erred in overruling defendant's motion for change of venue and removal. Sec. 3268, R. S. 1929. (2) The verdict of the jury is against the evidence. There is absolutely no evidence upon which to support the conviction. State v Crabtree, 170 Mo. 642. (3) The verdict of the jury is against the law. It is necessary to prove the charge as laid. State v. Smith, 31 Mo. 120; State v Chamberlin, 75 Mo. 382; State v. Baker, 144 Mo. 323; State v. Warner, 74 Mo. 83; State v. Schafer, 116 Mo. 107; State v. Crabtree, 170 Mo. 642. (4) The verdict of the jury is the result of bias and prejudice, and should be reversed. Where there is no evidence to support the verdict the inference is that the verdict is the result of prejudice. State v. Musick, 71 Mo. 401; State v. Cook, 58 Mo. 548; State v. Warner, 74 Mo. 83; State v. Hammond, 77 Mo. 159; State v. Packwood, 26 Mo. 340; State v. Primm, 98 Mo. 367; State v. Dunlap, 98 Mo. 414; Gargotta v. United States, 77 F.2d 977. (5) It was proper for defendant, upon examination of jurors, upon voir dire, to inquire of prospective jurors who had formed opinions as to the guilt or innocence of defendant "whether such opinions were such as would require evidence to remove;" this not for the purpose of establishing ground for challenge for cause, but for the purpose of learning attitude, qualifications of, and desirability of, the juror, preparatory to exercising defendant's right of peremptory challenge. State v. McKeever, 339 Mo. 1066; State v. Goffstein, 116 S.W.2d 65; State v. Wampler, 58 S.W.2d 266; State v. Stanton, 68 S.W.2d 811. (6) The court should have sustained defendant's challenges for cause presented and made as to jurors who had formed definite opinions as to the guilt or innocence of the defendant and in spite of the fact that these jurors stated they could set aside these opinions and give defendant a fair and impartial trial. United States v. Ogden, 105 F. 373; United States v. Montgomery, 42 F.2d 254; Meyers v. Cadwalader, 49 F. 32; 7 Halsbury's Laws of Eng. (6 Ed.). (7) Defendant's demurrer, filed at the conclusion of the evidence, should have been sustained. There was absolutely no evidence upon which to sustain a conviction. State v. Smith, 31 Mo. 120; State v. Chamberlin, 75 Mo. 382; State v. Baker, 144 Mo. 323; State v. Warner, 74 Mo. 82; State v. Schaefer, 116 Mo. 107; State v. Musick, 71 Mo. 401; State v. Cook, 58 Mo. 548; State v. Hammond, 77 Mo. 159; State v. Packwood, 26 Mo. 340; State v. Primm, 98 Mo. 367; State v. Dunlap, 98 Mo. 414; State v. Crabtree, 170 Mo. 642; Gargotta v. United States, 77 F.2d 977. (8) It is improper and reversible error for a prosecutor to argue matters outside the record and to appeal to the passions and prejudices of the jury in order to obtain a conviction, and it is error for the court to refuse to declare a mistrial because of such prejudicial argument. State v. Wellman, 253 Mo. 302, 161 S.W. 800; State v. Connor, 252 S.W. 722; State v. Pierson, 56 S.W.2d 125; State v. James, 15 S.W. 994, 216 Mo. 394; State v. Crouch, 339 Mo. 847; State v. Hayes, 19 S.W.2d 887; State v. O'Leary, 44 S.W.2d 52; State v. Mathis, 18 S.W.2d 10; State v. Lenzer, 92 S.W.2d 896; State v. Taylor, 8 S.W.2d 36.

Roy McKittrick, Attorney General, and Robert L. Hyder for respondent.

(1) The application for a change of venue was properly overruled. State v. Hancock, 7 S.W.2d 277; State v. Landon, 84 S.W.2d 917; Sec. 3630, R. S. 1929. (2) Jurors Robertson and Wobus were properly excused. Sec. 3669, R. S. 1929. (3) The court properly refused defendant's request to ask jurors if evidence was required to remove their opinions. Sec. 3671, R. S. 1929; State v. Core, 70 Mo. 492; State v. Rose, 92 Mo. 201. (4) The court properly retained jurors Adams, Schmidt and Krecht. Sec. 3671, R. S. 1929; State v. Thornton, 108 Mo. 657. (5) The bill of exceptions does not sustain the allegations in Assignment 29 in motion for new trial. State v. Duncan, 116 Mo. 288; State v. Rudolph, 187 Mo. 67. (6) Instruction 1 was proper and consistent with other instructions given by the court. Secs. 4424, 4425, R. S. 1929; Laws 1935, p. 226. (7) The error, if any, in argument of counsel for the State was cured by the court's instruction to disregard same.

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

OPINION

BOHLING

Isadore Londe was charged, tried and convicted of the offense of bombing in the City of St. Louis. [Sec. 4424, R. S. 1929, Mo. Stat. Ann., p. 3043.] He was sentenced to twenty-five years' imprisonment. He appealed.

I. Error is predicated on the refusal of a change of venue.

a. Appellant's petition, sworn to, for a change of venue from the Circuit Court of the City of St. Louis alleges that "he cannot have a fair and impartial trial" in the City of St. Louis or in the Eighth Judicial Circuit "because the inhabitants of the entire City of St. Louis" and said circuit "are so prejudiced against him, the defendant, that a fair and impartial trial cannot be had by him in said City" or said judicial circuit. The two supporting affidavits add nothing to the allegations in the petition. The State contends said petition and supporting affidavits state conclusions, not facts, and are insufficient. Consult: Section 3630, R. S. 1929, Mo. Stat. Ann., p. 3194; Sec. 2130, R. S. 1929, Mo. Stat. Ann., p. 2683; State v. Hancock, 320 Mo. 254, 256(II), 7 S.W.2d 275, 277[4, 5]; State v. London (Mo.), 84 S.W.2d 915, 917[6]. Broadly: "Pleadings are distinguishable from affidavits in that affidavits must state facts under oath, whereas pleadings may contain allegations of conclusions of fact, and verification of the pleading may not be necessary." [2 C. J. S., p. 924, sec. 1 (2d).]

b. On the merits: A short time prior to the trial a negro by the name of Lee L. Baker, a witness for the State, was assaulted in St. Louis County and shot twice. The newspapers of the City of St. Louis published articles covering the occurrence and articles referring to appellant well calculated to arouse public sentiment against appellant. Appellant's brief relies upon Meyers v. Cadwalader, 49 F. 32, 36; United States v. Ogden, 105 F. 371, 373, and United States v. Montgomery, 42 F.2d 254, 256, cases wherein publications, accessible to the jurors, during the progress of a trial were considered of such a nature as to have an influence upon the jury. They are not this case. Our holdings, mentioned infra, disclose the wide discretion vested in certain trial courts over this factual issue. We shall not detail the testimony. Appellant offered approximately nine witnesses on the issue. Practically all of the discussions referred to by the witnesses occurred subsequent to the assault upon witness Baker. Of the nine witnesses called by appellant, one had never heard the case discussed; another, a reporter for one of the papers, although he had heard it discussed, had formed no opinion; another, a reporter assigned to investigate the Baker assault, had heard the case discussed around Sikeston, Missouri, around St. Louis County, and also in the City of St. Louis. He estimated he had talked with as many as fifty people, and half of them thought appellant was guilty, but on cross-examination it was ascertained he had talked to about twelve people in the city of St. Louis and possibly four or five of them had stated they believed appellant guilty. He stated he had formed no opinion. Three or four witnesses estimated they had talked to between twenty-five and fifty persons who had expressed an opinion of appellant's guilt, and others had talked to only three or four. Among the persons thus established to have discussed the Baker shooting or the instant case were police officers, deputy sheriffs, newspaper reporters who were more or less professionally interested, and colored people. The State called seven witnesses. Their testimony, summed up, was to the effect they had not heard appellant's guilt or innocence discussed; that they had heard it discussed and some persons were of the opinion he was guilty and others that he was innocent; and that they had not formed an opinion as to appellant's guilt or innocence. One stated he did not know what the case was about. St. Louis is a city of over 800,000. The record does not establish that the trial court abused the discretion vested in it and if we give consideration to the voir dire examination of the veniremen -- the court was liberal in disqualifying for cause a large number of veniremen who stated they had formed an opinion, some being favorable to appellant -- we reach the same result. [State v. Barrington (Banc), 198 Mo. 23, 84 (III), 95 S.W. 235, 254(3); State v. Rasco, 239 Mo. 535, 549(I), 144 S.W. 449, 453(I); State v. Hudspeth, 150 Mo. 12, 22(II), 51 S.W. 483, 484(2); State v. Dyer, 139 Mo. 199, 208 (II), 40 S.W. 768, 769(2).]

II. Appellant devotes space to the qualification of individual veniremen.

a. A number had read some or the headlines or a portion of some of the newspaper articles concerning the assault upon witness Baker or articles referring to appellant, and stated they had formed an opinion from their reading. Appellant's broad contention that the court erred in not disqualifying for cause said veniremen merely on account of their impression or opinion finds no support in the existing Missouri law and is ruled against appellant. We have said that a venireman who has formed an impression or opinion, which will require testimony to remove, as to the guilt or innocence of an accused from rumors or...