State v. Robinson
| Decision Date | 07 February 1944 |
| Docket Number | No. 38829.,38829. |
| Citation | 177 S.W.2d 499 |
| Parties | STATE v. ROBINSON. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court, Division No. 12; William S. Connor, Judge.
Willie Robinson was convicted of murder in the second degree, and he appeals.
Affirmed.
Robert L. Spelbrink, of St. Louis, for appellant.
Roy McKittrick, Atty. Gen., and B. Richards Creech, Asst. Atty. Gen., for respondent.
An indictment was returned by the grand jury of the City of St. Louis charging the appellant with murder in the first degree for the murder of Edward Taylor. The jury found the appellant guilty of murder in the second degree and assessed his punishment at imprisonment in the State penitentiary for a term of twenty-five (25) years.
In his brief, appellant makes the following assignments of error:
(1) "The Demurrer at the close of the State's case should have been sustained."
(2) "The Demurrer at the close of the whole case should have been sustained."
(3) "As a matter of law, the trial court erred in submitting the issues to the Jury on a Charge of Second Degree Murder."
(4) "The verdict was against the law and the evidence and if the Defendant was found guilty, the Jury under the evidence should have found him guilty of Manslaughter and not Murder in the Second Degree as the evidence was insufficient to support the verdict of murder in the second degree."
(5) "The Court erred in giving to the Jury of Instructions 2 and 3 which are as follows: * * * [Instructions set out verbatim but not copied]."
(6) "The Court erred in submitting Instruction No. 4 to the Jury, said instruction being as follows: * * * [Instruction set out verbatim but not copied]."
(7) "The Court erred in permitting the State to make a statement before the Jury that he abandon the proof of the prior conviction and for stating his reason thereof."
(8) "The sentence of the Jury was excessive."
Appellant's assignments of error in this court are not covered in his motion for a new trial except Assignments No. 1 and No. 8; therefore, except as to Assignments No. 1 and No. 8, the appellant has not preserved anything for our review. State v. Pearson, Mo.Sup., 270 S.W. 347; State v. Londe, 345 Mo. 185, 132 S.W.2d 501.
In his first assignment, appellant contends that his demurrer at the close of the State's case should have been sustained. He did not stand on his demurrer at the close of the State's case. This was waived by appellant offering evidence in his own behalf. State v. Meadows, 330 Mo. 1020, 51 S.W.2d 1033; State v. Barr, 336 Mo. 300, 78 S.W.2d 104; State v. Lebo, 339 Mo. 960, 98 S.W.2d 695.
Appellant's other...
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State v. Burton
... ... (1) ... General assignments in motion for new trial present nothing ... for review. Sec. 4125, R.S. 1939; State v ... Derrington, 137 S.W.2d 468. (2) Error raised for the ... first time in brief cannot be considered. State v ... Breeden, 180 S.W.2d 684; State v. Robinson, 177 ... S.W.2d 499. (3) The court properly refused Instruction ... D-1. State v. Caviness, 326 Mo. 992, 33 S.W.2d 940; ... State v. Hayes, 262 S.W. 1034; State v ... Willard, 346 Mo. 773, 142 S.W.2d 1046. (4) The giving of ... Instruction 9 by the court was proper. Sec. 4093, R.S. 1939; ... ...
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