State v. Murphy
| Decision Date | 22 November 1939 |
| Docket Number | 36742 |
| Citation | 133 S.W.2d 398,345 Mo. 358 |
| Parties | The State v. James Murphy, Appellant |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis; Hon. David J Murphy, Judge.
Affirmed.
Roy McKittrick, Attorney General, and W. J. Burke Assistant Attorney General, for respondent.
(1) The court did not err in overruling defendant's demurrer at the close of the State's case. State v. Barr, 78 S.W.2d 104, 336 Mo. 300; State v. Lebo, 98 S.W.2d 697; State v. Meadows, 51 S.W.2d 1033, 330 Mo. 1020; State v. Starling, 207 S.W. 767. (2) The court did not err in allowing the State to amend the information by interlineation, nor was the defendant surprised. State v McKeever, 101 S.W.2d 22, 229 Mo. 1066; State v. Jackson, 102 S.W.2d 612, 340 Mo. 748; State v. Nichols, 39 S.W.2d 777, 327 Mo. 1237; State v. Hefflin, 89 S.W.2d 938, 338 Mo. 236, 103 A. L. R. 1301. (3) The court did not err in allowing the circuit attorney on voir dire examination to ask the jury if they would follow the law and did not err in failing to declare a mistrial for prosecutor making the statement. State v. Mosier, 102 S.W.2d 620. (4) The court did not err in permitting the circuit attorney in his opening statement to comment on the previous conviction of the defendant, who was charged under the Habitual Criminal Act. State v. Jones, 98 S.W.2d 586; State v. Walker, 46 S.W.2d 569; State v. Hefflin, 89 S.W.2d 940, 338 Mo. 236, 103 A. L. R. 1301. (5) The assignment of error number XI does not set out the questions and answers appellant complains of and motions for new trial do not prove themselves, and the assignment is insufficient for review. State v. Copeland, 71 S.W.2d 750, 335 Mo. 140; Harrison v. St. L.-S. F. Ry. Co., 99 S.W.2d 841, 339 Mo. 821. (6) The court did not err in allowing the circuit attorney to present to the witness, Costello, his statement to refresh his memory. State v. Riles, 204 S.W. 1; State v. Gregory, 96 S.W.2d 47, 339 Mo. 133.
In the Circuit Court of the City of St. Louis the appellant was convicted of robbery in the first degree with a dangerous and deadly weapon, and his punishment was assessed at ten years in the State penitentiary. From this sentence, he has duly appealed.
The appellant has not favored us with a brief; therefore, we will look to his motion for a new trial for his assignments of error. As he has made many assignments of error, we will group them under general heads so that this opinion will not be unduly lengthy.
He assigns as error the fact that there was not substantial evidence to support the verdict and asserts that his demurrers to the evidence should have been sustained.
The evidence in this case tends to show that Sol Margolin worked for his father who operated a tavern at Chaney and Pine Streets in the City of St. Louis. On June 17, 1938, Sol Margolin had taken a number of pay checks which had been cashed for the drivers of the Yellow Cab Company to a wholesale cigar store to obtain the money on them. These checks amounted to two hundred and seventy-four dollars. After obtaining the cash, Margolin returned to his car which was parked in front of the cigar store. Before he could drive away, a man wearing sunglasses got into the seat beside him, pointed a gun at him, and told him to "drive on." When he attempted to move his car, he found it impossible to get into the street immediately on account of a truck which was parked close to the rear of his car. The prosecuting witness attempted to unpark the car by backing and going forward, and each time that he went in reverse he looked at the bandit. Finally, the bandit, after placing a handkerchief over the lower part of his face, got the money from the prosecuting witness and left the car. Shortly thereafter, the prosecuting witness saw a car being driven away in the same direction the bandit was going when he left the car occupied by Margolin. While he did not recognize the occupant of the car, he did recognize the car as belonging to one of the drivers of the Yellow Cab Company by the name of Costello. Costello was a witness for the State and reluctantly testified that the appellant admitted the robbery and finally gave him approximately one hundred dollars to "keep his mouth shut." Shortly after the robbery, Costello and the appellant parked Costello's car in a parking station and went shopping in a Yellow Taxi Cab. Costello testified that the appellant changed clothes at a store known as the Good Luck Store. The defense was an alibi.
Margolin identified the appellant as the man who robbed him. It is true that he testified that each time he looked at appellant's face he had on either sunglasses or a handkerchief, yet we think it is substantial evidence in identifying the man who robbed him. Moreover, Costello testified that appellant admitted he robbed Margolin.
Margolin testified that he handed the money over to the bandit because he "feared the gun," and that he was afraid that "if I wouldn't give him the money he might do something." We think the evidence is substantial that the appellant was the man who took the money, and that the demurrer to the evidence was properly overruled. [State v. Caviness, 326 Mo. 992, 33 S.W.2d 940.]
The appellant was charged under the Habitual Criminal Act. The point is made that he was on parole and that his prior conviction could not be referred to or shown until he took the stand. In other words, Section 4461, Revised Statutes 1929, could not apply because he was not discharged from the penitentiary "either upon pardon or upon compliance with the sentence," as provided by that section. The question that at once presents itself is: Does a parole come within the meaning of the word "pardon" as used in that section? We have ruled on this point in the case of State v. Asher, 246 S.W. 911, l. c. 913, wherein we said:
The Habitual Criminal Statutes themselves do not create a separate offense, but merely subject second offenders to heavier punishment for crimes they commit. [State v. Hefflin 338 Mo. 236, 89 S.W.2d 938, 103 A. L. R. 1301.] It is not only necessary to aver in the information a defendant's former...
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