State v. Mallory
| Decision Date | 12 February 1968 |
| Docket Number | No. 52993,No. 2,52993,2 |
| Parties | STATE of Missouri, Respondent, v. William MALLORY, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Cyril J. Clancy, Asst. Atty. Gen., Clayton, for respondent.
Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.
BARRETT, Commissioner.
A jury found the appellant William Mallory guilty of robbery in the first degree and fixed his punishment at ten years' imprisonment.
Appellant's counsel briefed and argued two points, the first is that the information was 'so confusing and nonsensical as to not be a plain, concise and definite statement of the essential facts constituting the offense charged and was therefore an unconstitutional denial of due process of law in that it did not notify the appellant of the nature and cause of the accusation against him.' While the appellant cites the due process clauses of the state and federal constitutions, (Const.Mo. Art. I, Sec. 10, V.A.M.S.; Fourteenth Amendment Const. U.S.) the only constitutional provision with specific relevance to the claim here is in the Constitution of Missouri, Art. I, Sec. 18(a) that 'in criminal prosecutions the accused shall have the right * * * to demand the nature and cause of the accusation.' The rule, Criminal Rule 24.01, V.A.M.R., provides that In the argument portion of his brief it is said that the information did not allege 'who did the robbing and stealing' or 'what property was stolen and it is not alleged who the owner of the property was.' These latter assertions are not in fact supported by the record, other than differences in dates, names, place and amounts the information here is all but identical with several other informations that have been set forth in full or narrated (State v. Medley, 353 Mo. 925, 185 S.W.2d 633; State v. Kelly, Mo., 107 S.W.2d 19) and it is not necessary to encumber this record by setting forth this one. The language in many respects is medieval and it has been said that '(t)he form of the information is archaic and its continued use is not to be commended' but even so the court in that case held that the And finally the court said, State v. Benison, Mo., 415 S.W.2d 773, 776. This is the principal case upon which the appellant relies and for the reasons set forth in the quotations the information here is sufficient in form and substance and sufficiently charges the offense of robbery in the first degree by means of a dangerous and deadly weapon. RSMo 1959, §§ 560.120, 560.135, V.A.M.S.
In brief the facts were that about ten o'clock on the evening of May 12, 1966, Rufus Calloway, driving a Black & White Taxicab was dispatched to 913 Woodland. There he picked up two colored boys, one of whom he identified as the appellant Mallory. Mallory got in the front seat, the other boy, Vicky Shockley, got in the back seat. One of the boys told Calloway to take them to 1715 Montgall. When Calloway stopped and 'leaned over' to look at the taxicab meter 'then one put the gun back to my neck and the one in front, he taken and put it up under my throat.' The boy in the back took his billfold containing $26.00 from his pocket and the defendant took $16.00 company money and 'my cigarettes.' Calloway says that he kept his hands up, that the one in the back seat 'told me, he says, he should kill me.' Instead '(t)hey made me get out of my shoes' and Mallory 'cut my radio wire, where I couldn't call in, and threw the ignition key away,' and the two of them walked north on Montgall. These circumstances support the charge and the jury's verdict. State v. Kelly, supra.
The appellant's second claim and assignment is that he is entitled to a new trial because the court 'committed plain error' in refusing his request for a mistrial because of the 'prejudicial and inflammatory testimony by state's witness Park Kaestner that he arrested appellant because he was a known holdup suspect.' Kaestner was the police officer who arrested the appellant and the statement objected to arose on direct examination: Defense counsel made the general objection 'I'm going to object to that, Your Honor.' The court said, 'The jury will disregard the last answer.' Defense counsel then said, 'And I am going to move that the court declare a mistrial--and I'm going to move the court discharge the jury and declare a mistrial.' The court overruled the latter motion and the trial proceeded.
There is no point in matching statements, it is sufficient...
To continue reading
Request your trial
-
State v. Craig
...point on the basis of waiver. State v. Ransom, 340 Mo. 165, 100 S.W.2d 294(4, 5). In a somewhat analogous situation, in State v. Mallory, Mo., 423 S.W.2d 721, 723, the following there occurred: 'Q. What reason did you have for arresting this particular individual? A. He fit the description,......
-
State v. Dennison
...buttressed in our conclusion that the court did not err in refusing a mistrial by the decisions in the following cases: State v. Mallory, Mo., 423 S.W.2d 721, 723(3); State v. Madden, Mo., 394 S.W.2d 317, 322(6); State v. Camper, Mo., 391 S.W.2d 926, 928(6); State v. Fulkerson, Mo., 331 S.W......
-
State v. Parker, s. 57512
...The trial court's action was all that the circumstances required. Failure to grant a mistrial was not error. State v. Mallory, 423 S.W.2d 721, 723(2) (Mo.1968). The only ground urged at the trial was that the statement was not responsive. It was not wholly unresponsive, inasmuch as the inqu......
-
State v. Walker, KCD
...(Mo.1971); State v. McLarty, 467 S.W.2d 58, 60--61 (Mo.1971); State v. Edmondson, 461 S.W.2d 713, 716--717 (Mo.1971); State v. Mallory, 423 S.W.2d 721, 723--724 (Mo.1968); State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877, 880--881 (1931); McWilliams v. United States, 394 F.2d 41, 47 (8th Cir. ......