State v. Lord

Decision Date13 February 1956
Docket NumberNo. 44992,No. 2,44992,2
Citation286 S.W.2d 737
PartiesSTATE of Missouri, Respondent, v. Margaret Irene LORD, Appellant
CourtMissouri Supreme Court

Grace S. Day, St. Joseph, for appellant.

John M. Dalton, Atty. Gen., Fred L. Howard, Asst. Atty. Gen., for respondent.

STOCKARD, Commissioner.

Defendant Margaret Irene Lord was found guilty of grand larceny and her punishment assessed by the jury at imprisonment in the penitentiary for two years. From the ensuing judgment and sentence she has appealed.

On August 19, 1954, about 11:30 a. m., defendant and a companion entered the Red Clock Tavern in Buchanan County, Missouri. Ruby Moore and Fannie May Curry, the owners of the tavern, and defendant and her companion were the only persons present. A short time earlier Ruby Moore had counted the money in her purse, which was more than $226, and had then left the purse on one of the tables. After defendant had been in the tavern a few minutes she asked how to reach the rest room, and following directions, she left the tavern. Shortly thereafter the attendant of a nearby filling station brought Ruby Moore's purse to her and told her he had found it in the rest room. The purse then contained only three silver dollars and some small change. Ruby Moore located defendant in a nearby liquor store and she was arrested by a member of the Missouri State Highway Patrol. During the trial, defendant's purse and the contents thereof were admitted in evidence and Ruby Moore identified the money taken from defendant's purse as the money she had counted and placed in her purse a short time before defendant entered the tavern. In addition, there was admitted in evidence a pink slip of paper found in the purse of defendant on which there was written a number. Ruby Moore identified this slip of paper as the one that was in her purse with her money, and it was otherwise established that the number written thereon was the number of a prescription issued by a doctor for Ruby Moore's mother and filled at one of the local drug stores.

Defendant filed a motion for a judgment of acquittal and assigns as error the overruling of this motion. When we accept as true the evidence offered by the State and when we take into consideration the favorable inferences to be drawn therefrom, as we are required to do in determining whether the court erred in denying this motion, State v. McBrayer, Mo.Sup., 269 S.W.2d 756; State v. Sheard, Mo.Sup., 276 S.W.2d 196; it is clear that the State's evidence was sufficient and substantial to support a verdict that defendant was guilty of the crime charged. The court did not err in refusing to enter a judgment of acquittal.

Defendant also assigns as error the refusal of the court to grant a continuance and to appoint additional defense counsel. The record shows that in a previous trial, which had resulted in a hung jury, defendant was represented by two court appointed attorneys, one of which was the attorney representing defendant in the present trial. Subsequent to the first trial, the other attorney became a magistrate judge and was ineligible to participate in the defense of defendant on the second trial. Art. V, Section 24, Const. of Mo. 1945, 2 V.A.M.S. Section 545.820 RSMo 1949, V.A.M.S., authorizes and directs the trial court to assign defense counsel 'not exceeding two' when the defendant is without counsel of his own choice and is unable to employ counsel. See also 42 V.A.M.S. Supreme Court Rule 29.01. But there is no requirement that a person charged with a crime be provided with more than one defense attorney. Whether the court should appoint one or two attorneys to represent a person charged with a crime is a matter within the sound discretion of the trial court. In this case the request for the appointment of additional counsel was not made until the morning of the trial, although it was known or should have been known for over three months that co-counsel in the first trial could not participate in the second trial. The trial court was acquainted with the experience and ability of the defense counsel, and it knew that defendant's counsel in the present trial was familiar with the case by reason of having participated in the first trial. The record does not disclose that the trial court abused its discretion in refusing at the time requested to grant a continuance and to appoint additional defense counsel.

One of the assignments in defendant's motion for new trial is that 'the court erred in admitting evidence which was obtained by unlawful search and seizure, over the objections of defendant.' This assignment does not 'set forth in detail and with particularity * * * the specific grounds or causes' for the alleged error, and the statement that the evidence was obtained by unlawful search and seizure is a mere conclusion and preserves nothing for review. Section 547.030, RSMo 1949, V.A.M.S.; Supreme Court Rule 27.20; State v. Eison, Mo.Sup., 271 S.W.2d 571; State v. Humphries, 350 Mo. 938, 169 S.W.2d 350; State v. Kimbrough, 350 Mo. 609, 166 S.W.2d 1077. When error is asserted in a motion for new trial concerning the admission of evidence, the evidence complained of must be substantially stated or identified, and the reasons why it is claimed to have been inadmissible must be assigned, at least with sufficient particularity to inform the trial court of the merits of the assignment. State v. Kimbrough, supra. However, in any event, defendant cannot complain on this appeal concerning the admission in evidence of the items taken from her purse. Whether evidence has been unlawfully seized is a question properly to be determined on a motion to suppress evidence. State v. Owens, 302 Mo. 348, 259 S.W. 100, 32 A.L.R. 383; State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878. Before the commencement of the trial defendant filed such a motion and it was overruled, but in her motion for new trial she does not assign as error the overruling of the motion to suppress evidence. Therefore, the correctness of the ruling of the trial court in overruling that motion is not before us. State v. Proctor, Mo.Sup., 269 S.W.2d 624; State v. Hinojosa, Mo.Sup., 242 S.W.2d 1. At the time the articles taken from her purse were offered in evidence defendant did not enter an objection for the reason that they were unlawfully obtained, although an objection for an entirely different and unrelated reason was made, and therefore, assuming that she was entitled during the trial to make a collateral attack against the previous ruling on the motion to suppress evidence (but see State v. Windsor, Mo.App., 289 S.W. 663), she cannot, now on appeal, assert that the trial court erred in admitting evidence for reasons not assigned and different from those that were assigned before the trial court. Supreme Court Rule 27.20; State v. Smith, Mo.Sup., 261 S.W.2d 50.

Defendant objected to the admission in evidence of those articles claimed to have been the property of Ruby Moore and Fannie May Curry, and which were taken from defendant's purse immediately after her arrest, for the reason that there had not been proper identification, and because it had not been shown who had the care, custody and control of the articles. Ruby Moore identified all the articles as those which were in her purse just prior to the time defendant came in the tavern. They were also identified by other witnesses as those items which were taken from the purse of defendant shortly after she was arrested. The person who was prosecuting attorney at the time the articles were received from the highway partolman testified that they were marked by a person in his office and locked up in a safe. This assignment is without merit.

Defendant also complained in her motion for new trial with reference to the proof offered in support of the previous conviction charged in the information and of...

To continue reading

Request your trial
55 cases
  • White v. Swenson
    • United States
    • U.S. District Court — Western District of Missouri
    • May 2, 1969
    ... ... 301 F. Supp. 448          Robert G. Duncan, Kansas City, Mo., for petitioner ...         John C. Danforth, Atty. Gen., State of Missouri, Jefferson City, Mo., for respondent ...          MEMORANDUM AND ORDER GRANTING WRIT OF HABEAS CORPUS ... Although apparently reluctant to do so (see that court's citation of the pre- Mapp case of State v. Lord, (Mo.Sup.Ct., Div. 2, 1956) 286 S.W.2d 737, which, in reliance upon the rule of Hepperman discussed in footnote 5, refused to reach the merits of a ... ...
  • State v. Butler
    • United States
    • Missouri Court of Appeals
    • January 8, 1958
    ...2 The giving of such instruction is largely within the discretion of the court. State v. Swisher, 364 Mo. 157, 260 S.W.2d 6; State v. Lord, Mo., 286 S.W.2d 737; State v. Hart, 331 Mo. 650, 56 S.W.2d 592; State v. Brown, Mo., 270 S.W. 275; State v. Miller, Mo., 292 S.W. 440; see Raymond Miss......
  • State v. Paglino, 46219
    • United States
    • Missouri Supreme Court
    • December 8, 1958
    ...beyond that made in the trial court. State v. Smith, Mo.Sup., 261 S.W.2d 50; State v. Miller, 364 Mo. 320, 261 S.W.2d 103; State v. Lord, Mo.Sup., 286 S.W.2d 737; Supreme Court Rule 27.20, 42 V.A.M.S. The reason for this rule is obvious. A trial court should not be convicted of improperly a......
  • State v. Gilmore
    • United States
    • Missouri Court of Appeals
    • September 11, 1990
    ...by the offending witness. Rather, exclusion of the testimony lies within the sound discretion of the trial court, State v. Lord, 286 S.W.2d 737, 741 (Mo.1956), which will generally be exercised only where the violation of "the rule" occurs under special circumstances. See United States v. K......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT