State v. Reynolds

• Decision Date: 12 September 1939
• Docket Number: 36426
• Parties: The State v. Roosevelt Reynolds, Appellant
• Court: Missouri Supreme Court

131 S.W.2d 552

345 Mo. 79

The State v. Roosevelt Reynolds, Appellant

No. 36426

Supreme Court of Missouri

September 12, 1939

Appeal from Hannibal Court of Common Pleas; Hon. Harry J Libby, Special Judge;

Affirmed.

Roy Hamlin and John Campbell for appellant.

(1) The court erred in overruling the plea of former jeopardy because at the trial in June, 1938, the defendant was placed upon trial upon the charge herein, a jury was impaneled and sworn to try the cause, and the trial began, and without fault on appellant's part the court did thereafter discharge the jury and continue said cause to the next term by reason of all of which the defendant at said June Term, 1938, was placed in jeopardy under this charge, the same charge as that under which he was convicted at the September Term, 1938, of the same court. State v. Mason, 33 S.W.2d 898; State v. Toombs, 34 S.W.2d 66; State v. Miller, 56 S.W.2d 95. (2) Because the trial court erred in overruling the request of defendant to discharge the jury and declare a mistrial because during the closing argument the prosecuting attorney said to the jury: "Why, there is only one side to it. Is there anybody, any living soul told you that Roosevelt Reynolds did not enter that cab that night," which was a reference by the prosecution to the failure of defendant to testify, there being no other witness to the alleged robbery, and no other evidence, than that of the defendant, to which said argument could have referred. State v. McKeever, 101 S.W.2d 32; Sec. 3693, R. S. 1929; State v. Shuls, 44 S.W.2d 97; State v. Snyder, 182 Mo. 462, 82 S.W. 12; State v. Watson, 1 S.W.2d 840; State v. Drummins, 274 Mo. 644, 204 S.W. 271; State v. Weaver, 165 Mo. 13, 65 S.W. 308, 88 Am. St. Rep. 406. (3) The court erred in giving Instruction 3, because said instruction assumed the existence of "the $ 3 mentioned in the evidence," and therefore invaded the province of the jury and permitted a verdict of guilty without permitting the jury to pass on the question of whether or not said $ 3 existed, which fact was not conceded and for the jury to pass upon. State v. Duncan, 80 S.W.2d 153; State v. Langley, 154 S.W. 716; State v. Gregory, 96 S.W.2d 47.

Roy McKittrick, Attorney General, and Wm. Orr Sawyers, Assistant Attorney General, for respondent.

(1) The plea of former jeopardy referred to in motion for new trial was properly overruled by the trial court. Art. II, Sec. 23, Mo. Const.; State v. Austin, 300 S.W. 1083, 318 Mo. 864; State v. Miller, 56 S.W.2d 95, 331 Mo. 675; 1 Cooley's Const. Limitations (8 Ed.), p. 690. (2) The court exercised reasonable discretion in refusing continuance on grounds of absent witness named Will Logan. Sec. 3654, R. S. 1929; State v. Jasper, 24 S.W.2d 163, 324 Mo. 668; State v. Sherry, 64 S.W.2d 240; State v. Perkins, 116 S.W.2d 84. (3) The argument of the prosecuting attorney was not improper argument. Sec. 3693, R. S. 1929; State v. McKeever, 101 S.W.2d 32, 339 Mo. 1066; State v. Brugioni, 7 S.W.2d 264, 320 Mo. 202. (4) Instruction 3 given by the court does not invade the province of the jury. State v. Davis, 58 S.W.2d 309; 54 C. J., p. 1078, sec. 191. (5) Instruction 5 on credibility of witnesses is not prejudicial because of its use of pronouns of both masculine and feminine gender. Sec. 652, R. S. 1929; State v. Feeley, 194 Mo. 323, 92 S.W. 663; State v. Meals, 184 Mo. 257, 83 S.W. 442; State v. Brown, 270 S.W. 276. (6) Instruction 5 on credibility of witnesses is not prejudicial because not following approved form. State v. Busch, 119 S.W.2d 269; State v. Shout, 263 Mo. 375, 172 S.W. 607. (7) Instruction 6 which cautioned the jury on identity of defendant as the possible culprit was properly given. State v. Massey, 274 Mo. 590, 204 S.W. 541. (8) Instruction 7 which cautioned the jury on necessity of finding defendant at the scene of the robbery was properly given. 16 C. J., p. 963, sec. 2354; 54 C. J., p. 1077, sec. 188. (9) Instruction in nature of a demurrer was properly overruled as there was substantial evidence to support the verdict. State v. Harris, 324 Mo. 232, 22 S.W.2d 802. (10) It was not necessary to instruct on larceny from person or petit larceny in this case charging first degree robbery. State v. Whalen, 148 Mo. 290, 49 S.W. 989.

OPINION

Ellison, P. J.

The appellant was convicted of robbery in the Hannibal Court of Common Pleas, on change of venue from Ralls County, and his punishment assessed at five years' imprisonment in the penitentiary. He assigns as error that the trial court: overruled his plea of former jeopardy; denied his application for a continuance; refused to discharge the jury because of prejudicial closing argument by the prosecuting attorney; gave improper instructions; refused his instruction in the nature of a demurrer to the evidence; and failed to instruct the jury on all the law of the case.

At the trial appellant offered no evidence. The State adduced testimony showing that about midnight on February 22, 1938, the appellant entered the taxicab of Milford Menge near the Union Station in Hannibal, to be transported to New London in Ralls County, a distance of about ten miles. Before they started the cab driver picked up another passenger, William Logan, who desired to go to his home in the outskirts of Hannibal on the route to New London. Logan was delivered to his destination and the taxicab proceeded about four miles southwest of Hannibal on U.S. Highway 61, crossing the county line into Ralls County.

Appellant ordered Menge to stop. He did and turned on the dome light in the cab. Appellant had his hand in his pocket as if holding a pistol and commanded Menge to turn off the light and hold up his hands. Then from the back seat he searched Menge's pockets and took about $ 3 therefrom. Thereafter both men got out of the car and a struggle ensued. Menge got a monkey wrench from the back of the car, inflicted a wound on appellant's forehead, recovered the money and returned to Hannibal, leaving appellant in the road. The police were notified. Appellant was apprehended about three hours later on U.S. Highway 36 about five miles west of Hannibal, and was positively identified by Menge, and Roy Vaughn, the service man at the taxi station where appellant engaged and entered the taxicab. The man thus apprehended had a fresh wound on his forehead. There can be no doubt about the fact that the State made a prima facie case on the merits.

The case came on for trial at Hannibal in July, 1938, before Hon. Edmund L. Alford, the regular judge. A jury was sworn and the prosecutor started to read the information when appellant's counsel objected because it purported to be the original filed in the Ralls County Circuit Court and was not certified by the clerk of that court. In fact, it developed that the whole transcript was uncertified. The prosecutor asked for time to procure a certified transcript and was given until 2 o'clock in the afternoon. Appellant's counsel objected, saying they had relied upon the point as a defense; that after the jury had been sworn and the defense had made objection it was too late to supply the basic papers in the case; that the ruling of the court was a surprise. They then moved that the jury and the defendant be discharged, and those motions being denied, orally asked for a continuance because of surprise from the foregoing proceedings. The Court ruled: "The motion will be denied. A continuance of the case would be tantamount to an abatement of the prosecution."

Court recessed until 2 o'clock that afternoon when the prosecutor announced that a complete certified transcript from the Ralls County Circuit Court had been filed. Thereupon appellant's counsel asked for a continuance "on two grounds, one ground of surprise in the acts of the filing of the transcript after the jury was sworn, and further . . . the defense has subpoenaed a material witness, Mr. Will Logan, who was served by the Sheriff, and through no fault of ours, and through mistake, Mr. Logan is not here but is in St. Louis today, and in view of both of these grounds the defendant asks --" a continuance. On inquiry by the court both sides conceded Logan (who, as already stated, was a passenger in the taxicab to the outskirts of Hannibal) was duly subpoenaed; that he was a material witness; that the defense had been diligent in attempting to procure his attendance; and that the facts which he would detail could not be proven by any other witness. The court inquired if appellant's counsel were asking a continuance of the cause on these grounds, and they answered "Yes." The court then made this ruling: "The application will be sustained and the cause ordered continued to the next term of this court, and the jury, with the consent of defendant, will be discharged."

The cause came on for trial again at the next term, in September 1938, before Hon. Harry J. Libby, Judge of the Second Circuit, Judge Alford having disqualified himself. Appellant interposed a plea of former jeopardy, because the jury had been sworn to try him on the same information at the preceding term, was discharged, and the cause continued. This plea being overruled, appellant saved his exceptions and now assigns error on the ruling. Under Section 23, Article II of the Constitution, and subject to the exceptions therein contained, it is a fundamental right of every person that he shall not be twice put in jeopardy for the same offense. Appellant has cited three cases announcing that familiar rule. But the right can be waived. [16 C. J., sec. 489, p. 285; 15 Am. Jur., sec. 407, p. 77; State v. Austin, 318 Mo. 859, 864, 300 S.W. 1083, 1085; State v. Miller, 331 Mo. 675, 680, 56 S.W.2d 92, 95.]

The statement is made in 1 Cooley on Constitutional Limitations (8 Ed.), page 690, that...