State v. Politte

• Decision Date: 09 June 1952
• Docket Number: No. 1,No. 42959,42959,1
• Citation: 249 S.W.2d 366
• Parties: STATE v. POLITTE
• Court: Missouri Supreme Court

Page 366

249 S.W.2d 366

STATE v. POLITTE.

No. 42959.

Supreme Court of Missouri, Division No. 1.

June 9, 1952.

J. E. Taylor, Atty. Gen., William A. Wear, Asst. Atty. Gen., for respondent.

No Attorney for appellant.

LOZIER, Commissioner.

Defendant was convicted of first degree robbery. Section 560.120 RSMo 1949, V.A.M.S. The jury assessed 20 years imprisonment. The trial judge reduced the punishment and sentenced defendant to 12 years imprisonment. Defendant appealed.

As defendant has filed no brief, we examine the record proper and the bill of exceptions and consider the assignments made in defendant's new trial motion. State v. Jones, Mo.Sup. 227 S.W.2d 713, 716.

Defendant's assignments that the verdict was against the greater weight of the evidence, was against and contrary to the law and the evidence under the law, and was the result of passion and prejudice were too general to preserve anything for our review. Section 547.030 RSMo 1949, V.A.M.S.; State v. Francis, 330 Mo. 1205, 52 S.W.2d 552, 554; State v. Courtney, 356 Mo. 531, 202 S.W.2d 72, 74; State v. Shipley, Mo.Sup., 232 S.W.2d 515, 518.

Neither the 20 year punishment assessed by the jury nor the 12 year sentence was 'grossly' or 'highly' excessive nor 'cruel and unusual.' Both were less than the maximum authorized for first degree robbery. Section 560.135 RSMo 1949, V.A.M.S.; State v. Cooley, Mo.Sup., 221 S.W.2d 480, 485. We overrule this assignment.

Defendant's other assignments alleged error in the admission of evidence and in the giving of instructions.

The state's evidence was that: On the evening of January 22, 1950, Edwin Boyer, Mrs. Octavia Boyer (Edwin's grandmother, with whom Edwin lived) and a friend, Mrs. Frances Kennett, were in a tavern. Defendant, whom none of the three had ever seen before, was near them. Edwin asked his grandmother to go home and get some money he had given her two days before to hide for him. She refused to go but told him where she had hidden it. Defendant offered to take Edwin home and bring him back to the tavern. Defendant, Edwin and Mrs. Kennett went to the Boyer home in a taxicab. Edwin went into the house and defendant, uninvited, followed. He was beside Edwin when Edwin removed the money from its hiding place. Defendant snatched two one dollar bills out of Edwin's hand, saying, 'This is for taxicab fare.' Edwin protested. Defendant struck him in the nose, grabbed his jumper, hit him again, dragged him into another room and, while Edwin was prone, broke two or three 'statuettes' over his head, kicked him several times, took the rest of the money ($7.00) out of Edwin's pocket, discarded his own bloody shirt, donned one of Edwin's shirts and 'stepped on ' Edwin's throat. Defendant left the house, ordered Mrs. Kennett out of the taxicab and drove away.

Mrs. Kennett went into the house. The particular room was 'torn up,' and broken ornaments and blood spots were on the floor. She washed Edwin's face and hands. He was cold and shaking. He talked a little and then dropped off to sleep. Mrs. Kennett returned to the tavern and then, with Mrs. Boyer, went back to the house. They called the police who took Edwin to the hospital where he was treated for bleeding bruises on his head and face.

Defendant testified that: He had had some trouble with Edwin previously; on that particular night, Edwin had offered to buy him (defendant) a drink but stated he would have to go home and get some money; at the Boyer home, he and Edwin had several drinks out of a bottle of beer he (defendant) had carried out of the tavern; Edwin resented defendant's inquiry as to how much money he (Edwin) had and 'pushed' defendant; defendant 'pushed' Edwin back, Edwin 'took a swing' at defendant, defendant 'took a swing' at Edwin and Edwin 'fell and hit the post.' Defendant denied taking any money from Edwin and changing shirts.

Defendant's assignments as to admission of evidence are overruled. Defendant alleged that the state's witnesses were permitted to testify to conversations among themselves out of defendant's presence. Apparently, defendant was referring primarily to the conversation between Edwin, Mrs. Boyer and Mrs. Kennett at the tavern, which conversation defendant denied overhearing. There was also evidence as to other conversations among those three witnesses or one of the three with other witnesses, both before and after that night, when defendant was not present. However, the bill of exceptions shows that, upon direct examination, defendant's sole objection to this testimony was sustained; and that thereafter the testimony of which defendant complains was elicited by defendant in his cross-examination of Edwin, Mrs. Boyer and Mrs. Kennett. See State v. Hall, 141 Mo.App. 701, 125 S.W. 229.

Defendant's next assignment was that, over his objection, lay witnesses were permitted to testify 'regarding medical diagnosis and highly technical medical findings and opinions, without in any way qualifying as medical experts.' On direct examination, Edwin testified without objection by defendant, that he had been under the care of a physician for years and was taking pills. Defendant objected to Edwin's statement that the treatment was for epilepsy. Noting that whether Edwin was an epileptic was entirely irrelevant, Edwin was qualified to say for what disease or ailment he was being treated and for which he was taking pills. See International Coal & Mining Co. v. Industrial Commission, 293 Ill. 524, 127 N.E. 703, 10 A.L.R. 1010; 32 C.J.S., Evidence, Sec. 513, p. 191. We overrule this assignment.

Defendant did object to Mrs. Kennett and Mrs. Boyer testifying that Edwin was an epileptic, had epileptic spells and did not have a spell that night. Mrs. Kennett had known Edwin for six months and was a frequent visitor in the Boyer home; she had known of Edwin's condition and that he had been taking pills for epilepsy. Mrs. Boyer had raised Edwin 'from a small baby,' he had lived with her since he was two years old and she had observed and cared for him during his spells. Both witnesses described the objective symptoms of Edwin's epileptic spells and said that Edwin showed no such symptoms that night. Again noting that whether Edwin was an epileptic was not material to any issue in the case, we believe that both Mrs. Kennett and Mrs. Boyer were qualified by their association and experience, and, especially, their observation of Edwin that night, both before and after the robbery, to state that he was an epileptic and had not had a spell that night. See Hughes v. Prudential Ins. Co., Mo.App., 179 S.W.2d 630, 637; 20 Am.Jur., Evidence, Sec. 858, p. 719; 32 C.J.S., Evidence, Sec. 513, p. 196; Wigmore, Evidence, 3rd Ed., Vol. II, Sec. 568, p. 660.

Furthermore, whether Edwin had a spell at the home that night was not an issue. Defendant's own testimony does not even suggest that Edwin did have a spell on that occasion. Evidence on that matter was wholly irrelevant. See State v. Knight, 356 Mo. 1233, 206 S.W.2d 330. We see in this evidence nothing prejudicial to defendant, but if there was, most of such evidence was developed by defendant himself in his cross-examination of these state witnesses. Again see State v. Hall, 141 Mo.App. 701, 125 S.W. 229.

Defendant's new trial motion next assigned error in Instructions Nos. 2, 3, 4, 5, 6 and 8. Instruction No. 2 was: 'You are instructed that if you believe and find from the evidence, to a moral certainty and beyond a reasonable doubt, that on or about the 22nd day of January, 1950, in the City of St. Louis, Missouri, defendant Raymond Herman Politte, by violence to the person of Edwin Oliver Boyer, took from the person of said Edwin Oliver Boyer, against his will, Nine Dollars, lawful money of the United States, or any part thereof, with the intent to deprive him permanently thereof and to convert the same to his own use, then you should find defendant Raymond Herman Politte guilty of robbery in the first degree; and unless you find* the facts so to be you should find defendant Raymond Herman Politte not guilty of robbery in the first degree.' (Italics and asterisk ours.)

Defendant's first criticism of Instruction No. 2 was that it did not hypothesize facts constituting all of the elements of first degree robbery. This...