State v. London
| Decision Date | 11 July 1935 |
| Docket Number | 33401 |
| Citation | 84 S.W.2d 915 |
| Parties | STATE v. LONDON |
| Court | Missouri Supreme Court |
E. E Hairgrove, of Kansas City, for appellant.
Roy McKittrick, Atty. Gen., and James L. Hornbostel, Asst. Atty Gen., for respondent.
The appellant was charged in the circuit court of Cooper county, Mo., with the crime of robbery in the first degree. He was also charged with having been previously convicted and having served a sentence for grand larceny. In the instant case the appellant was convicted and the jury assessed his punishment at imprisonment in the penitentiary for twenty-five years. From this judgment, he has duly perfected an appeal to this court.
I. We believe the trial court properly overruled the demurrer offered by the appellant at the close of all the evidence. The appellant was positively identified by Carl Hain, the prosecuting witness. The testimony tended to show that Carl Hain was a salesman for the Shryack-Givens Grocery Company and that on the morning of January 14, 1932, as he was traveling on highway No. 41, about seven miles from where that highway intersected with highway No. 40, he was forced to get out of his truck at the point of a gun; was blindfolded and driven for some distance where he was left in a garage, his hands bound with adhesive tape. He was kept in this garage about five hours; was then driven some distance, and later released in Howard county. Carl Hain testified to the effect that the appellant took from him a sum of money between twenty and forty dollars and merchandise of the value of $ 220. He further testified that he was unable to identify the appellant's companion, who assisted in the robbery.
The defense was an alibi. Harry Taylor testified for the appellant and stated that the appellant was not present and took no part in the robbery, but the robbery was committed by Taylor and a man by the name of Bradshaw. He also testified that he pleaded guilty to this robbery and was serving a sentence of fifteen years in the penitentiary. The evidence was sufficient to sustain a conviction of robbery in the first degree. Section 4058, R. S. Mo. 1929 (Mo. St. Ann. § 4058, p. 2856); State v. Stanton (Mo. Sup.) 68 S.W.2d 811, 812.
We hold there was substantial evidence to convict the appellant of the crime of robbery in the first degree by the use of a deadly and dangerous weapon and that the trial court properly overruled the demurrer at the close of all the evidence.
II. Appellant's assignment No. 1 reads as follows: 'Because the verdict of the jury was against the evidence, contrary to the evidence and against the weight of the evidence.'
Assignment No. 2, reads as follows: 'Because the verdict was for the wrong party, under the law and the evidence.'
Assignment No. 8 reads as follows: 'The court erred in giving instructions 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16, to the giving of each and all of them the defendant did then and there duly except and still excepts.'
Assignment No. 9 reads as follows: 'The Court erred in refusing to permit the defendant to introduce competent and legal evidence offered on the part of the defendant to which refusal and action of the Court the defendant did then and there duly except and still excepts.'
It is well settled by numerous decisions of this court that under section 3735, R. S. Mo. 1929 (Mo. St. Ann. § 3735, p. 3275), the above assignments are general and are not 'set forth in detail and with particularity,' and therefore nothing is preserved for our review.
III. The appellant assigns as error the admission of Exhibits A and B. Exhibit A is the certified copy of the record in the warden's office showing that Jack London had been incarcerated in the Missouri penitentiary to serve a sentence of ten years for the crime of grand larceny, and that he had been discharged upon the completion of that sentence. On the authority of the recent case of State v. Stanton, supra, we hold that Exhibit A was properly admitted.
Exhibit B is not set forth in the bill of exceptions. We assume it was a picture from a remark made by the trial court when it was offered in evidence. The trial court instructed the jury not to 'look on the reverse side of this picture.' At the time this exhibit was offered, the appellant objected to the offer on the ground that it was 'incompetent, irrelevant and immaterial and not within the issues of this case.' This exhibit not being preserved in the bill of exceptions, we must assume that the trial court properly admitted it, there being nothing in the record showing that its admission prejudiced the rights of the appellant.
IV. Error is assigned in the cross-examination of the appellant. The state was permitted to ask ...
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