State v. Moore

• Decision Date: 25 March 1931
• Docket Number: 30921
• Citation: 36 S.W.2d 928
• Parties: STATE v. MOORE
• Court: Missouri Supreme Court

36 S.W.2d 928

STATE v. MOORE

No. 30921

Supreme Court of Missouri, Second Division

March 25, 1931

Stratton Shartel, Atty. Gen., and Ray Weightman, Asst. Atty Gen., for the State.

DAVIS and COOLEY, CC., concur.

OPINION

WESTHUES, C.

Defendant was charged with statutory rape; tried before a jury June 25, 1929, convicted, and his punishment fixed at thirty years in the state penitentiary. On motion of the circuit attorney, the court commuted the sentence to fifteen years in the penitentiary. Defendant filed a motion for new trial, and, after the court overruled the motion, defendant was sentenced and an appeal allowed to this court. We have examined the record proper and find the information in the language of the statute and sufficient in form and substance. Defendant was properly arraigned and placed on trial before a jury. The verdict of the jury is in proper form. Allocution and sentence followed the overruling of the motion for new trial.

Seven assignments of error are found in the motion for new trial. Nos. 3 to 7, inclusive, are so general in terms that they do not present any question for our review. The third and fourth simply state that the court erred in admitting incompetent, irrelevant, and immaterial evidence offered by the state and excluding competent testimony offered by the defendant, without any reference to what testimony is questioned. The others complain of instructions, and no reference is made to the number of the instructions nor is any reason assigned why the instructions are erroneous. This is not sufficient. Section 4079, Rev. St. Mo. 1919, as amended by Laws of 1925, p. 198; State v. Adams, 318 Mo. 712, 300 S.W. 738, loc. cit. 743. Assignments Nos. 1 and 2 are as follows:

'1. That the verdict is against the evidence and the right thereof.

'2. That the verdict is against the law as applied to the evidence in this case and against the law as set out in the instructions given by the court.'

These assignments, Nos. 1 and 2, have been briefed by the Attorney General as raising the question of the sufficiency of the evidence. Under the ruling in State v. Miller, 318 Mo. 581, 300 S.W. 765, the assignments here presented go rather to the weight of the testimony and not to its sufficiency. State v. Parsons (Mo. Sup.) 285 S.W. 412. The weight of the evidence is a question for the jury and the trial court. State v. Sikes (Mo. Sup.) 24 S.W.2d 989.

With reference to the sufficiency of the testimony, while not properly preserved for our review, a short statement of the facts will be made to dispose of that question.

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