State v. Nolan

• Decision Date: 07 June 1943
• Docket Number: 38397
• Citation: 171 S.W.2d 653
• Parties: STATE v. NOLAN
• Court: Missouri Supreme Court

171 S.W.2d 653

STATE v. NOLAN

No. 38397

Supreme Court of Missouri, Second Division

June 7, 1943

Roy McKittrick, Atty. Gen., and W. J. Burke, Asst. Atty. Gen for respondent.

OPINION

WESTHUES, Commissioner.

Appellant was convicted in the circuit court of the city of St. Louis Missouri, of robbery in the first degree by means of a dangerous and deadly weapon and sentenced to imprisonment in the penitentiary for a term of fifty years. He appealed.

Appellant has not favored us with a brief. We look to his motion for new trial for assignments of error. The question of the sufficiency of the evidence to sustain a conviction was preserved for review. A short statement of the facts proven by the state will be sufficient to demonstrate that this point must be ruled against appellant. Appellant introduced no evidence. The state's evidence tended to prove the following: On March 23, 1929, appellant walked into a butcher shop, located on the corner of Warne and College avenues, St. Louis, Missouri, and at the point of a revolver ordered those present to the rear of the store. One of the clerks was compelled to open the cash register and appellant took therefrom about $ 300 in cash, then departed. He was later arrested and taken to police headquarters where a number of those present in the store at the time of the robbery identified him as the man who perpetrated the crime. Those same witnesses testified at the trial and it is evident that the evidence was ample to sustain the conviction.

It will be noted that the alleged offense was committed in March, 1929. Appellant was not tried until January, 1942. He made an oral motion for discharge because four terms of court had passed without a trial and therefore under sections 4085, 4088, Mo.Rev.St.Ann., he was entitled to a discharge. This motion was properly denied. The record showed the following to have occurred: The case was continued on October 4, 1929, and again on November 1, 1929, for want of time to try the same. On January 20, 1930, the case was continued at defendant's request. On March 17, 1930, it was continued generally because appellant was then imprisoned in the penitentiary of the state of Illinois under a life sentence. On May 19, 1941, the case was continued at defendant's request. On September 6, 1941, it was continued for want of time to try the case. Only one continuance was granted at the request of the state. This occurred on November 5, 1941, and the record showed that the defendant consented thereto. The trial court properly refused to discharge the defendant. See State v. Pierson, 343 Mo. 841, 123 S.W.2d 149, loc. cit. 151 (2, 3); State v. Woods, 346 Mo. 538, 142 S.W.2d 87.

Error was assigned because the trial court overruled appellant's motion and request to exclude witnesses from the court room during the impaneling of the jury. The record disclosed that the request was made while the questioning of the prospective jurors was about to be completed. The motion was made so late that the trial court was justified in refusing the request and did not abuse its discretion. State v. Jackson, Mo.Sup., 83 S.W.2d 87, loc. cit. 91 (4, 5), 103 A.L.R. 339.

In addition to the charge of robbery in the first degree the information alleged that the defendant had previously been convicted of crime, had served a sentence therefor and had been discharged from such sentence. He complained in his motion for new trial with reference to the proof offered in support of such an allegation and of comments made with reference thereto, but the jury, as evidenced by the verdict, disregarded the previous conviction and therefore the questions raised passed out of the case.

In assignments 10, 11, 12 and 13 appellant claimed error because witnesses who had been present when the alleged robbery occurred were permitted to testify that they identified appellant at police headquarters the day following the commission of the offense. We have carefully examined the record and find that no objection was made to this evidence when a number of witnesses testified with reference to the identification, and that on other occasions objection was made after the...