State v. Messino

• Decision Date: 03 July 1930
• Docket Number: 30195
• Citation: 30 S.W.2d 750,325 Mo. 743
• Parties: The State v. John Messino, Appellant
• Court: Missouri Supreme Court

30 S.W.2d 750

325 Mo. 743

The State v. John Messino, Appellant

No. 30195

Supreme Court of Missouri

July 3, 1930

Appellant's Motion for Rehearing Overruled and Opinion Modified July 3, 1930.

Appellant's Motion to Transfer to Banc Overrule July 3, 1930.

Appeal from Jackson Circuit Court; Hon. O. A. Lucas, Trial Judge: Hon. Charles P. Woodbury, Successor Judge.

Affirmed.

Jos R. Lasson and Myer Goldberg for appellant.

(1) The trial judge's successor erred and abused his judicial discretion in not granting appellant a new trial for the reason that the verdict is contrary to the law and the evidence adduced in the trial of said cause: (a) The State charged appellant with the commission of one crime; (b) The State proved the commission of another crime; (c) The court instructed the jury on the law on a still different crime other than that charged and proven by the evidence, in this, to-wit: The State by information in common law form charged appellant jointly with others with the crime of murder in the first degree; the evidence that the State adduced at the trial of said cause 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; 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, Missouri Constitution; Sec. 1, 14th Amendment to the United States Constitution. (2) The trial judge's successor erred and abused his judicial discretion in not granting appellant a new trial for the reason that the verdict is contrary to the law and the evidence. The State predicated its case upon four theories of law, none of which were warranted or supported by either the evidence of the State or appellant, in this, to-wit: (a) The State by information in common law form charged appellant jointly with others with the crime of murder in the first degree. (b) The evidence of the State tended to prove the commission of a homicide after the perpetration of a robbery, but in no wise connected therewith. (c) The trial judge instructed the jury upon the law of conspiracy to commit a crime charged in the information, and (d) the trial judge instructed the jury upon the law charging the jury to find appellant guilty of murder in the first degree if from the evidence the jury found and believed the appellant alone committed the homicide charged in the information, the absence of any evidence whatsoever to the contrary notwithstanding. Sec. 30, Art. 2, Missouri Constitution; Sec. 1, 14th Amendment, United States Constitution; State v. Robinett, 279 S.W. 698. (3) The record proper fails to affirmatively show: (a) That appellant was present at the time his motion for a new trial was argued and taken under advisement by the trial judge, the late Hon. O. A. Lucas; (b) that the appellant was present in court at the time appellant's motion for a new trial was argued anew before the trial judge's successor, and (c) that it does not affirmatively appear from either the record or record proper that appellant was present in person at the time the trial judge's successor's order was made overruling appellant's motion and formally sentencing appellant in accordance with the verdict of the jury. Sec. 22, Art. 2, Missouri Constitution; Sec. 28, Art. 2, Missouri Constitution; Sec. 30, Art. 2, Missouri Constitution; Sec. 1, 14th Amendment, United States Constitution; Sec. 4008, R. S. 1919; Cooley on Constitutional Limitations, p. 576; Hopt v. Utah, 110 U.S. 574; 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 (4) 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, Constitution of Missouri; Sec. 30, Art. 2, Constitution of Missouri; Sec. 1, 14th Amendment, United States Constitution; 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. 493, 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. 1; Freeman v. United States, 227 F. 732; McKenny v. Wood, 108 Me. 335; Ohms v. State, 49 Wis. 419; People ex rel. v. Judge Sup. Ct., 41 Mich. 726; State ex rel. v. Railroad Co., 192 S.W. 993; State ex rel. v. Railroad Co., 270 Mo. 260. (5) The trial court erred and abused its judicial discretion in refusing to instruct the jury on murder in the second degree. Sec. 30, Art. 2, Missouri Constitution; Sec. 1, 14th Amendment, United States Constitution; Sec. 3232, 4025, R. S. 1919; Frederick Hopt v. People of the Territory of Utah, 110 U.S. 574. (6) The trial judge's successor erred and abused his judicial discretion in refusing to sustain appellant's motion for a new trial (for assignment of errors specifically set forth therein) in that said trial judge's successor did not preside at the trial proper; was not familiar with all that transpired during the trial proper; did not and could not have knowledge of things and matters that cannot by their nature be incorporated in the record and shown, e. g.; the general demeanor of the witnesses while upon the stand and their willingness or unwillingness to speak truthfully of matters within their knowledge and the demeanor and conduct of counsel and the action and demeanor of the jury, etc. St. Louis v. Railway Co., 211 S.W. 571; Jones v. Yore, 43 S.W. 384; Hunt v. Searcy, 167 Mo. 178; State ex rel. Hertwitz v. North, 304 Mo. 619; State v. Manness, 19 S.W.2d 628; State v. Hedges, 295 S.W. 575; State v. Scheufler, 285 S.W. 575; State v. Young, 119 Mo. 495. (7) The trial judge's successor failed to and did not acquaint himself with all the evidence adduced during the trial; did not make a full, complete, and exhaustive examination and investigation of what had occurred during the trial, did not procure a full and complete transcript of the entire proceedings and trial; he failed and did not have the entire proceedings of the trial, including the evidence, read to him by the official court reporter. (8) The trial court erred for failure to give the converse of the State's recovery or main instructions at the request of defendant. State v. Hays, 247 S.W. 168; State v. Majors, 237 S.W. 488; State v. Johns, 234 S.W. 794; State v. Dougherty, 287 Mo. 82, 228 S.W. 786; State v. Rutherford, 152 Mo. 124; State v. Frederick & Langdon, 136 Mo. 51; State v. Jackson, 156 Mo. 621; State v. Garrett, 274 S.W. 58. (9) The trial court erred and abused its discretion in refusing to sustain appellant's application for a change of venue on the grounds of bias and prejudice of the citizens of the Sixteenth Judicial Circuit. 16 C. J. 205, sec. 307; 16 C. J. 206, sec. 309. (10) The trial court erred and abused its discretion in refusing to grant appellant a continuance for the purpose of securing absent witnesses and allowing defendant reasonable time in which to make preparation for his defense. State v. Wade, 270 S.W. 298, 307 Mo. 29; State v. Inks, 135 Mo. 686.

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 determine the degree of the homicide; also for the purpose of showing the entire transaction and the motive for the commission of the robbery. 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 tended to show conspiracy to rob the Home Trust Company and the instructions for the State required the jury to find that the defendant entered into a conspiracy with others to commit the crime of robbery mentioned in the evidence under a form of instruction 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. (2) It is the general rule throughout the United States that the defendant need not be present at the time his motion for new trial is filed, argued or overruled by the court. Baldwin v. State, 119 Ark. 518; State v. Dry, 152 N.C. 813; Armstrong v. State, 34 Ohio Cir. Ct. 384; Arnold v. State, 132 (Pac.) Okla. 1123; State v. Sharp, 145 La. 891; Alexis v. United States, 129 F. 60, 63 C. C. A. 502; Bonardo v. People, 182 Ill. 411; Reed v. State, 147 Ind. 41; Howard v. Commonwealth,...