State v. Mangercino

• Decision Date: 03 July 1930
• Docket Number: No. 30196.,30196.
• Citation: 30 S.W.2d 763
• Court: Missouri Supreme Court
• Parties: THE STATE v. TONY MANGERCINO, <I>alias</I> TONY MANGIARACINA, Appellant.

30 S.W.2d 763

THE STATE v. TONY MANGERCINO, alias TONY MANGIARACINA, Appellant.

No. 30196.

Supreme Court of Missouri. Division Two.

July 3, 1930.

Appeal from Jackson Circuit Court. — Hon. O.A. Lucas, Judge.

AFFIRMED.

Jos. R. Lasson and Myer Goldberg for appellant.

(1) It was error and an abuse of judicial discretion to refuse appellant a new trial, for the reason that the verdict is contrary to the law and the evidence. (a) The State charged appellant with the commission of one crime, and proved the commission of another crime. (b) The court instructed the jury on the law on a different crime other than that charged and proven by the evidence. The State by information in common law form charged appellant jointly with others with the crime of murder in the first degree; the evidence adduced by the State tended to prove the commission of a homicide after the perpetration of a robbery, but in no wise connected therewith and not a necessary part of the original scheme, design, and plot, if any. (c) The court instructed the jury on the law of conspiracy to commit the crime charged in the information, the absence of any evidence to the contrary notwithstanding. Sec. 30, Art. 2, Mo. Constitution; Sec. 1, 14th Amendment. (2) It does not affirmatively appear from either the record or record proper that appellant was present in person at the time the order was made overruling appellant's motion and formally sentencing appellant in accordance with the verdict of the jury. Sec. 22, Art. 2, Mo. Constitution; Sec. 28, Art. 2, Mo. Constitution; Sec. 30, Art. 2, Mo. Constitution; Sec. 1, 14th Amendment; Sec. 4008, R.S. 1919; Cooley on Constitutional Limitations, p. 576; Hopt v. Utah, 110 U.S. 574, 579; State v. Able, 65 Mo. 37; State v. Dooly, 64 Mo. 146; State v. Allen, 64 Mo. 67; State v. Jones, 61 Mo. 232; State v. Braunschweig, 36 Mo. 398; State v. Schoenwald, 31 Mo. 167; State v. Buckner, 25 Mo. 167; State v. Matthews, 20 Mo. 55; Harris v. People, 130 Ill. 457; State v. Christian, 30 La, Ann. 367; Stubbs v. State, 49 Miss. 716; State v. Cross, 27 Mo. 332; Dougherty v. Com., 69 Pa. 286; Younger v. State, 2 W. Va. 579. (3) The trial judge's successor erred in not sustaining appellant's motion for a new trial because the death of the trial judge, who died before passing upon or determining appellant's motion for a new trial, constitutes a substitution of judges during the trial and such substitution of judges during the trial deprived appellant of his constitutional right of a trial by jury and of his life without due process of law. And the trial judge's successor's action and order as so made overruling the appellant's motion for a new trial violated appellant's constitutional right in that it is violative of and contravenes: Sec. 28, Art. 2, Mo. Constitution; Sec. 30, Art. 2, Mo. Constitution; Sec. 1, 14th Amendment; West v. State, 42 Fla. 244; Bass v. Swingley, 42 Kan. 729; Moses v. State, 23 Ohio Cir. Ct. 535; Durden v. People, 192 Ill. 496; State v. Burns, 280 S.W. 126; Frank v. Mangum, 237 U.S. 309; People v. McPherson, 74 Hun, 336; United States v. Harding, 1 Wall. Jr. 139; King v. Mann, 285 S.W. 100; State v. Webb, 162 S.W. 622; Cap. Traction Co. v. Hoff, 174 U.S. 13; Freeman v. United States, 227 Fed. 732; Chas. W. McKenny v. Wood, 108 Me. 335; Ohms v. State, 49 Wis. 419; State ex rel. v. Railroad Co., 270 Mo. 260. (4) It does not appear that the trial judge, who died before passing upon or determing the appellant's motion for a new trial, was either satisfied with or approved the verdict of the jury. Bass v. Swingley, 42 Kan. 729; State v. Harris, 22 S.W. (2d) 807; Sec. 28, Art. 2, Mo. Constitution; Sec. 30, Art. 2, Mo. Constitution; Sec. 1, 14th Amendment. (5) The trial court erred in permitting the prosecuting attorney to indulge in improper conduct and to make improper, inflammatory, and prejudicial remarks in his closing arguments to the jury, over the objection of counsel for appellant. State v. Nicholson, 7 S.W. (2d) 375; State v. Smith, 281 S.W. 35, 313 Mo. 71; State v. Taylor, 8 S.W. (2d) 31; State v. Guerringer, 265 Mo. 408; State v. Goodwin, 217 S.W. 264. The trial judge's successor erred in that he exceeded the authority vested in him and abused his judicial discretion in confining and limiting his deliberation and finding only to determine whether the trial judge committed error, rather than to ascertain from all of the evidence whether the verdict is against the weight of the evidence or whether prejudicial error was committed at any stage of the trial. State v. Reppley, 213 S.W. 478; State v. Hess, 240 Mo. 159; State v. Webb, 254 Mo. 435; State v. Baker, 246 Mo. 376; State v. Kyle, 259 Mo. 401; State v. Meysenberg, 171 Mo. 1; State v. Pagels, 92 Mo. 300; Henwood v. People, 57 Colo. 544, 143 Pac. 373; Bailey v. People, 54 Colo. 337, 130 Pac. 832, 45 L.R.A. (N.S.) 145; Black v. State (Tex. Crim.), 65 S.W. 906; Hamilton v. State, 37 S.W. 194; Hilton v. People, 59 Colo. 200, 140 Pac. 250; People v. Cahoon, 88 Mich. 456, 50 N.W. 384; People v. Milke, 55 App. Div. 372, 66 N.Y. Supp. 889; Franklin v. State, 41 Tex. Crim. 21, 51 S.W. 961; Johnson v. United States, 131 C.C.A. 613, L.R.A. 1915-A, 862. (6) The trial court erred in admitting into evidence certain evidence of substantive offenses other than that charged. Whart. Crim. Ev. sec. 30; Kribs v. People, 82 Ill. 425; Watts v. State, 5 W. Va. 532; Devine v. People, 100 Ill. 290; Sutton v. Johnson, 62 Ill. 209; 1 Phil. Ev. (5 Amer. Ed.) 644; Rose, Crim. Ev. (7 Amer. Ed.), sec. 90, p. 90; Kinchelow v. State, 5 Humph. 9; State v. Nave, 285 S.W. 723; State v. Tunnell, 296 S.W. 423. (7) The trial court erred in permitting and allowing the State to introduce numerous prejudicial state exhibits, viz: several revolvers, a shotgun, a machine gun, and a large assortment of cartridges and ammunition alleged by the State to have been used during the perpetration of said alleged robbery, but that were not connected up with either this appellant or the crime charged in the information. (8) The trial court erred in refusing to dismiss the jury at the request of defendant for the failure of the court to reprimand counsel for the State at the request of counsel for appellant for improper conduct during the trial of said cause. And for making improper and prejudicial remarks in the presence and hearing of the jury and the introduction of incompetent, irrelevant, immaterial, and prejudicial testimony. Dyson v. State, 26 Mass. 362; Hudson v. State, 43 Tenn. 355; Sage v. State, 22 Ariz. 151, 191 Pac. 534; Herndon v. Black, 97 Ga. 327, 22 S.E. 924; Over v. Schiffling, 192 Ind. 191, 26 N.E. 91. (9) The trial court erred in giving in behalf of the State instructions numbered 2, 3, 3-A, and 5, in that said instructions were incomplete, improper, and inadequate statements of the law; they were not warranted, supported, or justified by either the crime charged or the evidence adduced in the trial of said cause; they inadequately and improperly failed to define and exemplify the law that they purported to define and exemplify and the giving of said instructions was prejudicial to the appellant. Secs. 4052, 3230, R.S. Mo. 1919; State v. Vinso, 171 Mo. 578, State v. Taylor, 118 Mo. 153; State v. Conway, 244 Mo. 271; People v. Taylor, 36 Cal. 255; Lawrence v. State, 19 Tex. C.A. 495; Moore v. State, 44 Tex. C.A. 562, 722 S.W. 595; Michie on Homicide, 1397. (10) The trial court erred in refusing to give on behalf of defendant, defendant's instructions numbered 2, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, in that said instructions were a proper, complete, and adequate statement of the law; they were warranted, supported, and justified by the evidence adduced in the trial; they did properly define and exemplify the law that they purported to define and exemplify, and the refusal to give said instructions was prejudicial to the defendant. Ross v. State, 133 S.W. 638; Mundine v. State, 38 S.W. 619; Michie on Homicide, 471, 472. (12) The trial court erred in permitting the prosecuting attorney to ask the jury, on their voir dire examination, if they knew certain other persons, naming them, then under indictment in the same court, over objection of counsel for the defendant. State v. Meysenburg, 171 Mo. 1.

Stratton Shartel, Attorney-General, and Don Purteet, Assistant Attorney-General, for respondent; Otto & Potter of counsel.

(1) It has always been proper in Missouri where defendants conspire to commit a robbery and in the perpetration of such robbery, commit murder, for the indictment or information to charge murder alone, and evidence of the conspiracy, and the commission of the robbery may be shown in evidence as a part of the res gestae to show the degree of the crime; and also, for the purpose of showing the entire transaction and the motive for the commission of the murder. State v. Meyers, 99 Mo. 112; State v. Barrington, 198 Mo. 96; State v. Parr, 246 S.W. 905; State v. Millard, 242 S.W. 923; State v. Sykes, 191 Mo. 62; State v. Katz, 266 Mo. 503. The evidence in the case tended to show a conspiracy to rob the Home Trust Company, and the instructions for the State required the jury to find that the defendant had entered into a conspiracy with others to commit the crime of robbery; the forms of the instructions used have been approved by this court in many cases. State v. Leon Williams, 274 S.W. 434; State v. Baker, 278 S.W. 989; State v. Vaughan, 200 Mo. 1; State v. Parr, 246 S.W. 905. The Supreme Court of Missouri disposed of all of the contentions raised under point 1 of appellant's brief in the following language: State v. Millard, 242 S.W. 925. (2) The trial judge's successor did not err in overruling appellant's motion for new trial because of the death of the trial judge, who died before passing upon or determining appellant's motion for new trial; this did not constitute a substitution of judges during the trial and did not deprive the appellant of any...