State v. Morgan
| Decision Date | 11 May 1970 |
| Docket Number | No. 54688,No. 2,54688,2 |
| Citation | 453 S.W.2d 932 |
| Parties | STATE of Missouri, Respondent, v. Virgil Ray MORGAN, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Spec. Asst. Atty. Gen., St. Louis, for respondent.
Michael P. Riley, Jefferson City, for appellant.
STOCKARD, Commissioner.
Defendant, charged under the Second Offender Act with robbery in the first degree by means of a dangerous and deadly weapon, was found guilty by a jury and sentenced by the court to imprisonment for a term of ten years with credit for jail time.
A detailed statement of the evidence is not necessary. On October 7, 1968, at 11:30 o'clock p.m., two men, identified as Jimmy Pace and David Warfield, armed with a pistol and a sawed-off shotgun robbed the Holiday Inn south of Jefferson City of $202.50. Warfield testified that defendant furnished the shotgun, and that during the robbery he waited outside the Holiday Inn in an automobile with the motor running. After the robbery all three drove to defendant's house and divided the money.
The first contention is that the trial court erred in allowing defendant only eight peremptory challenges instead of twelve.
The offense with which defendant was charged was punishable by 'death, or * * * by imprisonment * * * for not less than five years.' See § 560.135. (All statutory references are to RSMo 1959, V.A.M.S., unless otherwise stated). By reason of § 546.490, punishment by imprisonment could extend to 'imprisonment during his natural life.' Prior to impaneling the jury the prosecuting attorney announced that the State waived the imposition of the death penalty. The defendant objected to the panel on the basis that there was not a sufficient number for him to receive twelve peremptory challenges. This was overruled and defendant was permitted only eight peremptory challenges.
Paragraph 1 of § 546.180, applicable except in cities which have a population of over one hundred thousand inhabitants, provides as follows:
'1. In all criminal cases the state and the defendant shall be entitled to a peremptory challenge of jurors as follows:
(1) If the offense charged is punishable by death or by imprisonment in the penitentiary for life, the state shall have the right to challenge six and the defendant twelve, and no more;
(2) In all other cases punishable by imprisonment in the penitentiary the state shall have the right to challenge four and the defendant eight and no more; * * *.'
In State v. Naylor, 328 Mo. 335, 40 S.W.2d 1079, the defendant was charged with murder, second degree, for which the authorized penalty was 'imprisonment in the penitentiary for not less than ten years,' but which by reason of what was then § 4457 (RSMo 1929) and is now § 546.490, could have been life imprisonment. The authorized penalty did not include death. The court carefully considered the legislative history of § 3674 (RSMo 1929), which is now § 546.180, and concluded that the proper construction was that the language in paragraph 1 relative to punishment referred 'to the punishment designated in the statute defining the offense and providing the punishment therefor, and as not applying to those offenses for which, under (then) section 4457 (and now § 546.490) * * * the punishment may be assessed at life imprisonment, but for which the statute defining the offense does not prescribe such penalty.' This has since been the uniform construction of the language of paragraph 1 of § 546.180. State v. Yowell, 331 Mo. 716, 55 S.W.2d 991; State v. Redding, Mo., 357 S.W.2d 103; State v. Barrett, Mo., 406 S.W.2d 602. § 560.135, which defines the offense with which defendant was charged and prescribes the punishment therefor, does not provide for imprisonment for life, but reference must be made to § 546.490 to find provision therefor. By reason of the construction of § 546.180 as set forth above, defendant was not entitled to twelve peremptory challenges on the basis that the offense charged was 'punishable * * * by imprisonment in the penitentiary for life.'
Defendant contends, however, that the offense with which he was charged was 'punishable by death,' and even though the prosecuting attorney announced that the imposition of the death penalty was waived, he could not bind the court as to the punishment. We do not consider this issue to turn on the question of whether the prosecuting attorney could or could...
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Lane v. State
...clearly had the right to act "as a thirteenth juror" and set aside the verdict as being against the weight of the evidence. State v. Morgan, 453 S.W.2d 932 (Mo.1970); State v. Parker, 543 S.W.2d 236 (Mo.App.1976); State v. Cochrell, 492 S.W.2d 22 (Mo.App.1973). If he had thought that the ev......
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State v. Amerson, 58118
...65. This court determines only whether there was substantial evidence to support the verdict, and there obviously was.' State v. Morgan, 453 S.W.2d 932, 934 (Mo.1970); State v. Talbert, 454 S.W.2d 1 The point that the court erred in not giving a credibility instruction is disallowed for fou......
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State v. Tressler
...evidence of an accomplice or codefendant must be corroborated to constitute a basis for a conviction. In the recent case of State v. Morgan, 453 S.W.2d 932 (Mo.1970), this court dealt with a contention that the verdict could not stand because it was based on uncorroborated testimony of an a......
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State v. Baldridge, s. WD
...before trial, and therefore, this is not a "capital case" nor a case dealing with an offense "punishable by death." State v. Morgan, 453 S.W.2d 932, 933 (Mo.1970). Accordingly, the trial court did not err in failing to apply the above guidelines to this case. These points are Trial Court's ......