State v. Montgomery

• Citation: 363 Mo. 459,251 S.W.2d 654
• Decision Date: 13 October 1952
• Docket Number: No. 1,No. 43169,43169,1
• Parties: STATE v. MONTGOMERY
• Court: United States State Supreme Court of Missouri

Page 654

251 S.W.2d 654

363 Mo. 459

STATE v. MONTGOMERY.

No. 43169.

Supreme Court of Missouri, Division No. 1.

Oct. 13, 1952.

Frank E. Mathews and James J. Rankin, St. Louis, for appellant.

J. E. Taylor, Atty. Gen., Samuel M. Watson, Asst. Atty. Gen., for respondent.

CONKLING, Judge.

James Leeman Montgomery, defendant-appellant, was charged in the circuit court with one prior conviction of a felony and with first degree robbery by means of a dangerous and deadly weapon. Upon his trial the jury found him guilty of first degree robbery by means of a dangerous and deadly weapon and assessed his punishment at 15 years' imprisonment in the penitentiary, and he has appealed.

Upon the trial there was testimony adduced from which the jury could have found that on October 28, 1950, about 6:30 p.m., defendant entered the office of Dr. Park J. White in the City of St. Louis, Missouri, and, pointing a revolver at Doctors White and Sato, both then there present, and by putting them in fear of immediate injury to their person, compelled them to lie face down on the floor; that while holding the gun on the two doctors defendant took $30 from the person of Dr. White and $10 and some checks from a desk drawer in the room; and that after ordering the men to continue lying on the floor defendant fled with the money and checks. Defendant does not here challenge the sufficiency of the evidence adduced to support the judgment of conviction. The defendant, and other witnesses, gave testimony tending to prove an alibi. Upon this appeal defendant contends that the lower court erred in, (1) permitting the separation of the jury at night and allowing each juror to go to his respective home, or elsewhere, (2) failing to declare a mistrial because of certain rebuking statements of the trial court to and concerning defendant's counsel made in the jury's presence, and (3) failure to declare a mistrial because of certain argument to the jury made by the State's counsel. We consider these matters in order.

We first give attention to the above contention respecting separation of the jury. It appears that the jury were sworn on the morning of March 14, 1951, and heard a portion of the evidence that day. On that evening at the adjournment hour the jury were permitted to separate and go to their homes. On March 15th, further evidence was heard by the jury and the verdict was thereafter returned on that date.

Defendant relies on Section 546.230 [all statutory references are to RSMo.1949 V.A.M.S., unless otherwise indicated] which in part provides: 'With the consent of the prosecuting attorney and the defendant, the court may permit the jury to separate at any adjournment or recess of the court during the trial in all cases of felony, except in capital cases'; etc., and upon Section 560.135 prescribing the punishment for robbery in the first degree by means of a deadly weapon at death, or at imprisonment in the penitentiary for not less than five years.

But it affirmatively appears that in this case 'the State was not asking the death penalty' and under the instructions given by the court to the jury they could not assess the capital punishment. Under instruction one submitting only robbery in the first degree by means of a dangerous and deadly weapon, in the event of finding defendant guilty, the jury could assess only the punishment of imprisonment in the penitentiary for not less than five years. And under instruction two, submitting a prior conviction of a felony and robbery in the first degree by means of a dangerous and deadly weapon, in the event of finding defendant guilty, the jury could have assessed only life imprisonment.

The assessment of capital punishment not even having been requested by the State and not being at all assessable under the court's instructions, this was not a 'capital case,' as those words are used in Section 546.230 and the jury could be permitted to separate by consent or agreement.

The record shows that upon the hearing held on the motion for new trial defendant's counsel agreed that he did not protest or object or except to the above separation of the jury, and the record otherwise confirms that defendant did not object or except. We have held that in the absence of any objection or exception by the defendant to the separation of the jury it will be presumed that the necessary consent of defendant was given thereto; that defendant's consent to jury separation may be acted or even implied; and that, in other than capital cases, 'the act of permitting them [the jury] to separate is a matter of procedure, amounting to an irregularity, which must be taken advantage of by exception.' State v. Brown, 75 Mo. 317; State v. Stanfield, Mo.Sup., 1 S.W.2d 834; State v. Bowman, Mo.Sup., 12 S.W.2d 51; State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245.

Under the above circumstances the contention made that the separation of the jury was reversible error is without merit and must be overruled.

During the cross-examination of Dr. White by defense counsel the court said 'Let me rule, and please, gentlemen don't interrupt counsel in his objections.' The court then sustained a State's objection. Mr. Rankin, defense counsel, then started to ask another question, and Mr. Walsh [for the State] interrupted and objected. Mr. Rankin instantly sought to finish his question which had been interrupted. The following then occurred:

'The Court: Mr. Rankin, when I am trying to pass on an objection--I will fine you for contempt in a few minutes, if you don't accord this Court the proper conduct of counsel. Do you understand what you are doing here? You are interfering with the orderly process of this court, or do you understand that?

'Mr. Rankin: Well, if I have offended Your Honor and the decorum of this court, I am certainly sorry and I want to apologize for it. I was asking a question and Mr. Walsh made an objection.

'The Court: You pursued that during the time he was objecting; don't you realize that?

'Mr. Rankin: I hadn't finished my question.

'The Court: You had finished your question in my judgment and I think the record will bear me out. Mr. Rankin the next time you do that I will have to impose some punishment.

'Mr. Rankin: As I said * * * 'The Court: I will accept your apology but accord this Court the proper conduct of counsel.

'Mr. Rankin: I certainly never have intended anything else.

'The Court: All right. Now you have been advised. Sit in your chair, please. You made an objection, Mr. Walsh?

'Mr. Walsh: Yes, Your Honor.

'The Court: What was the basis for your objection?

'Mr. Walsh: On the ground it is irrelevant and immaterial whether or not anybody was held up seven weeks after * * *

'The Court: Sustained.'

Defendant's counsel then moved for a mistrial on the ground that the Court's remarks were prejudicial to defendant and would prevent defendant from receiving a fair trial.

Under our system of jury trials, the judge before whom the trial is conducted has a deep responsibility for the orderly and dignified conduct of courtroom proceedings. When the issue is one which may imprison the defendant on trial in a criminal cause, the tension of the courtroom drama and the human frailties and emotional factors inevitably involved serve but to make the judge's task the more difficult. Order and decorum must be maintained. The factual inquiry must be conducted within the issues and at all times under the applicable rules of law. Even if counsel or others should be guilty of misconduct the judicial calmness and the dignity and the self-restraint and obvious impartiality of the judge must always be maintained and made manifest. The judge must not indicate a belief in either the guilt or innocence of the accused. Nor may he let such belief be reflected or even...