State v. Murray

• Decision Date: 20 December 1926
• Docket Number: No. 27357.,27357.
• Parties: STATE v. MURRAY et ux.
• Court: Missouri Supreme Court

292 S.W. 434

STATE v. MURRAY et ux.

No. 27357.

Supreme Court of Missouri, Division No. 2.

December 20, 1926.

Appeal from Circuit Court, Jackson County N. E. Johnson, Judge.

Jack Murray and Edna Murray were convicted of first degree robbery, and they appeal. Affirmed.

Piatt & Marks, Rader & Rader, and Paul S. Conwell, all of Kansas City, for appellants.

North T. Gentry, Atty. Gen., and Claude Curtis, Sp. Asst. Atty. Gen., for the State.

WHITE, J.

In the circuit court of Jackson county, October 1, 1925, the defendants were found guilty of robbery in the first degree, and the punishment of each assessed at 25 years in the state penitentiary. The court rendered judgment in accordance with the verdicts, and both defendants appealed.

On April 6, 1925, one H. H. Southward was employed by Lerner Grocer Company. A part of his duty was to take the money of the company to the bank for deposit. On that day, about 9 o'clock, he started with $112.50 in cash and $83 in checks, intending to go to the Commerce Trust Company at the corner of Tenth and Walnut streets. He drove to that point in his Ford car, and was able to find a parking place behind the bank in an alley. As he drove into the alley he saw two men standing at the corner. A car was standing there also, either a Dodge or a Buick. Just after he stepped out of his car one of the men hit him in the back with something which he took to be a gun. They then picked him up by the trousers, and threw him in on the floor of the car which stood there. A young woman sitting in the front seat of the car told one of the men to get the key and follow in Southward's car. He took Southward's key and followed in Southward's car. They drove down the alley, blindfolded the witness, and drove around for about two hours, the defendant, Edna Murray, driving, and the defendant, Jack Murray, sitting beside the witness. They drove close to the Sunset Hill farm, near Dodson. There they robbed the witness, taking the money and checks. They took off his shoes, and threw them into the car. The woman threatened that, if he did not give her more money, she would fix him where he would not have any. They then drove away. The witness went to the first house, telephoned the police station, got a pair of shoes, and came back to town. He could not run his car because the robbers had his key.

The state also introduced a surveyor who, when taken to the spot where the witness said he was robbed, by his measurements found the place to be in Jackson county. The defense was an alibi. Edna Murray testified that she was the wife of Jack Murray, and accounted for the whereabouts of herself and Jack at the time of the robbery. Two or three other witnesses testified, corroborating her statements, that the defendants were at home or elsewhere than the place where the robbery took place.

Defendant filed a motion for rehearing, containing 41 assignments of error, the motion covering 23 closely printed pages, the same point being sometimes presented in a half dozen different forms. Some of these assignments are lengthy arguments. The real points relied upon are condensed by appellant in his formal assignment of errors in this court

I. Several of the assignments in the motion refer to the alleged incompetency of one Robert Nelson, a juror. No objection was made to him in the voir dire examination. The court's attention first was called to him in the motion for new trial. It is claimed that he was incompetent to serve because he was not a citizen of the United States ; also because he had been discharged on the day previous from the regular panel on that account, and concealed that fact from the court when he was qualified. On the motion the court took evidence. The defendant introduced the record of his examination the previous day as to his qualification to sit in another case. His father was an Englishman, who came to New York and married there. His mother was an American by birth, and he was born in New York. Though in his childhood he lived a few years in England, he was in fact an American citizen. United States v. Wong Kim Ark, 169 U. S. 649, 18 S. Ct. 456, 42 L. Ed. 890.

Further, the appellant is not in position to question his qualification. Section 6608 provides that "no exception to a juror on account of his citizenship, nonresidence, state or age, or other legal disability shall be allowed after the jury is sworn." Under that section we have held that, if a party fails to question a juror as to his qualifications, when the juror is examined upon his voir dire, it is too late to raise objection afterward. State v. Wilson, 230 Mo. 647, 132 S. W. 238; Hart Realty Co. v. Ryan, 288 Mo. 188, loc. cit. 196, 232 S. W. 126.

Further, the only question asked of Nelson on his voir dire examination in this case was whether he knew of any reason why he could not serve as a juror. He answered, "No."

When he was examined as to his qualifications, on the previous day in another case, he explained at length his citizenship, etc., and on the challenge of the defendant the court said:

"Mr. Nelson, you will be excused. I think that under our statute you would not be competent to serve, and, Mr. Sheriff, you advise Mr. Tobin up there to excuse him from the general panel."

All there is in this statement is that he was excused from service in that particular case. The court made no order discharging him from the regular panel. The judge addressed a remark to the sheriff telling him that Mr. Tobin, whoever that was, should be advised to discharge Nelson from the general panel. There is nothing to show that that advice was acted upon. In other words, the record does not show that Nelson was discharged from the regular panel. Nor is there anything to show that he understood that he was not qualified to serve in another case. In fact, when he was asked if he knew of any reason why he should not serve as a juror in this case, and answered the question in the negative, he answered correctly. Therefore he did not conceal a matter affecting his qualifications. The party objecting is not to be excused for failure to contest the qualification of a juror on the ground that he simply forgot to ask the necessary questions. Nelson was not asked any question which would call for an explanation of the occurrences of the day before.

II. Appellant complains of improper remarks by the judge during the conduct of the trial. On one occasion the court overruled an objection to evidence made by the defendant's counsel saying that was not a proper objection. The court was entirely correct, because the objection stated no reason why the evidence was incompetent.

The record does not show any other objection at any time to the remarks complained of here. After the jury had returned a verdict and was discharged, the court thanked them, complimenting them on having the nerve to assess a punishment "conmensurate with the crime." Objection is made now to that remark. The complaint is that it shows the bias of the judge. It seems to be argued that it is improper for a judge to form an opinion during the progress of the trial as to whether a defendant is guilty. Being human, he cannot help forming an opinion, and, as long as his demeanor during the conduct of the trial did not improperly influence the jury, no complaint can be considered.

III. A reversal is asked on account of alleged improper conduct and remarks of the state's counsel. On one occasion the defendant objected to "this man standing up to the platform and trying to bulldoze the witness." "This man," we presume, meant the prosecutor. The court overruled the objection, and by that determined that the prosecutor was not bulldozing the witness. It is said here that a rule of Jackson county required counsel in examining a witness to sit at the counsel table. No such rule was introduced in evidence, nor called to the attention of the court, and no objection was made at the time on that account.

The prosecutor, Mr. Brewster, in the course of argument, said this: "Who is telling the truth? Either Izzie Rich lied when he went out and saw this witness. * * *" Objection to this was sustained on the ground that it did not comport with the evidence. The attorney then continued, that there were five witnesses in contradiction of Isadore Rich, and either the five, or Rich, lied. An objection to that was overruled. The attorney then said he was drawing his conclusion from the evidence, and asserted his right to do so. Further on in his argument the prosecuting attorney characterized the argument for the defense as a vile and malicious attack upon the prosecuting witness. The defendant objected, and moved to discharge the jury on account of that remark. The record does not show what the attorney for the defense had said. to call forth that characterization, and we are unable to say that the prosecutor was not within his rights in his extravagant denunciation of it.

The prosecutor continued as follows:

"Where is the alibi for Jack Murray except for his wife?"

Jack Murray himself did not testify, while his wife did testify in support of the alibi.

In closing his argument, the prosecutor said:

"Gentlemen of the jury, you are not here to reform these people, you are here to punish them, and you, in determining the punishment you would inflict, have a perfect right to take into consideration what effect the punishment you inflict will have upon others in deterring them from crime."

The prosecutor had a right to draw any inference from the evidence which he in good faith thought was justifiable. He was not to be rebuked for drawing unwarranted inferences, nor on account of an unsound argument. State v. Reppley, 278 Mo. loc. cit. 343, 213 S. W. 477. Appellant complains that the restriction of section 4037, R. S. 1919, was violated in referring to the alibi for Jack Murray ; that it was a direct reference to Jack Murray's failure to testify. The remark cannot be so interpreted. The...