State v. Ronimous, 46610

• Decision Date: 12 January 1959
• Docket Number: No. 46610,No. 2,46610,2
• Citation: 319 S.W.2d 565
• Parties: STATE of Missouri, Respondent, v. Robert (Bobby) RONIMOUS, Appellant
• Court: Missouri Supreme Court

Page 565

319 S.W.2d 565

STATE of Missouri, Respondent, v. Robert (Bobby) RONIMOUS, Appellant.

No. 46610.

Supreme Court of Missouri, Division No. 2.

Jan. 12, 1959.

Roswell P. Henderson, Moberly, for appellant.

John M. Dalton, Atty. Gen., Robert E. Hogan, Sp. Asst. Atty. Gen., for respondent.

STORCKMAN, Presiding Judge.

The defendant, Robert (Bobby) Ronimous, by an information filed in the Circuit Court of Boone County, was charged with the felonies of burglary and larceny. The venue was changed to Randolph County where the jury acquitted him of the larceny charge, but found him guilty of burglary and assessed his punishment at two years in the penitentiary. His motion for new trial was overruled and he has appealed from the judgment of conviction.

No brief has been filed on behalf of the appellant, and the case is before us on the transcript of the record and the brief of the respondent. In these circumstances our review extends to the essential record and allegations of error properly preserved in the motion for new trial. Supreme Court Rules 27.20 and 28.08, 42 V.A.M.S.; State v. Garrison, Mo., 305 S.W.2d 447, 449; State v. Swiney, Mo., 296 S.W.2d 112, 114.

The defendant asserts eleven grounds of error in his motion for new trial; however, some of them are insufficient to preserve anything for review. Supreme Court Rule 27.20 provides that the motion for new trial shall set forth in detail and with particularity the specific grounds or causes therefor. See also Sec. 547.030 RSMo 1949, V.A.M.S. Assignment No. 3 of defendant's motion, that 'the court erred in admitting incompetent, irrelevant and immaterial evidence offered by the Prosecuting Attorney,' has been held not sufficiently specific to preserve anything for review. State v. Reed, Mo., 298 S.W.2d 426, 428. Likewise, assignment No. 6, that 'the court erred in giving each and every instruction given by the court of its own motion,' is not sufficiently specific. State v. Gaddy, Mo., 261 S.W.2d 65, 67-68[2, 4].

Three of the specifications in the motion for new trial are that the verdict is 'against the evidence,' 'against the greater weight of the credible evidence in the case,' and 'against the law under the evidence.' These and allegations of similar import have repeatedly been held too general to preserve anything for review. State v. Garrett, Mo., 282 S.W.2d 441, 442[2, 3]; State v. Daegele, Mo., 302 S.W.2d 20, 22[1, 2].

The court gave an instruction on circumstantial evidence in a form often approved by this court. See State v. Jordan, Mo., 235 S.W.2d 379, 383. The defendant states in his motion that the court erred in giving this instruction, but does not state wherein or why and leaves us with nothing to review. State v. McLachlan, Mo., 283 S.W.2d 487, 489.

Item No. 10 of defendant's motion states that 'the court erred in overruling defendant's objection to the improper argument of the Prosecuting Attorney to the jury to the effect that defendant and his counsel were persons without good reputation.' The allegation does not prove itself and, since the argument of counsel is not in the transcript of the record on appeal, there is nothing before us for review. State v. White, Mo., 301 S.W.2d 827, 829.

The evidence adequately established that the Bambi Club, a tavern located on U. S. Highway No. 40 in the City of Columbia, was forcibly entered during the early morning of June 28, 1956, and that money and other property was stolen. The crime was committed between the closing time of 1:30 a. m. and 4:00 a. m. Entrance was effected by breaking a lock on the rear door. A cigarette vending machine was broken into and money and cigarettes were stolen. Other coin operated amusement devices, such as a juke box, shuffle board and bowling games, were robbed of their proceeds. The vending machine and the amusement devices were operated by quarters, dimes and nickels. Pennies were taken from an open cash register. Some food, a gallon jar of sausages and a five-pound piece of cheese, was also taken.

The defendant alleges that the trial court erred in permitting the state to introduce evidence of an entirely separate and different crime thereby prejudicing the defendant with the jury. At the time of trial, William Junior Deprair was serving a term in the Missouri State Penitentiary for his part in the burglary and larceny of the Bambi Club. Placed on the stand by the state, he undertook to repudiate a written statement and oral admissions made on the day of his arrest implicating the defendant and Harold Dean Redifer in the burglary of the Bambi Club as well as the Tiger Club, another tavern nearby. His testimony at the trial was that he had gone from Moberly to Columbia alone in a 1948 Pontiac which he borrowed from the defendant. Without objection he was permitted to testify that he first broke into the Tiger Club where he took some plastic combs, cigarette lighters and money from the vending machines and amusement devices, and that he then went immediately to the Bambi Club nearby and burglarized it.

There was also evidence from police officers and others tending to show that the two taverns were both burglarized at about the same hour and apparently both by the same persons and that these persons were the occupants of the 1948 Pontiac which was shown to have been in the vicinity at the time the burglaries were committed. When Deprair's written statement was read to the jury, the court excluded references to the Tiger Club, pursuant to defendant's objection. Clearly the court did not err in the respect charged. According to the state's evidence, both burglaries were accomplished on the same criminal excursion, elements of each were common to both and the loot was commingled. The fact that the defendant, when arrested, had in his possession articles identified as having been stolen from the Tiger Club, tended to place him near the scene of the crime for which he was being tried. A similar complaint was made in State v. Strait, Mo., 279 S.W. 109, 114, and this court held: 'But it is a rule that, when there is a common scheme, embracing two or more crimes, so related to each other that the proof of one tends to establish the other, then proof of such other crime is admissible.' This rule has been applied frequently and recently. See State v. Atkinson, Mo., 293 S.W.2d 941, 942; State v. Saussele, Mo., 265 S.W.2d 290, 296. The claim of error is denied.

The defendant charges the trial court erred in permitting the prosecuting attorney 'to make late endorsements of witnesses' on the information. James Cook, a milk route driver for the Hillcrest Dairy, located across the highway and a little south from the Bambi Club, was permitted to testify over defendant's objection that when he went to work between 3:00 a. m. and 4:00 a. m. on June 28 he saw a police car drive up to the Club and stop. After it left he saw two men, walking fast, come around the southwest corner of the Club building. One was short and the other was taller, about six-feet tall, but the witness could not identify them. On the prosecuting attorney's statement that he had first learned of the witness that morning, the defendant's objection was overruled and the witness was permitted to testify.

The names of all material witnesses are required to be endorsed upon the indictment or information when it is filed, but the names of other witnesses may be added later by of the court and upon notice to the defendant or his attorney. Supreme Court Rule 24.17; Secs. 545.070 and 545.240. In this case the defendant made no affidavit of surprise, application for continuance or showing of prejudice which has been held necessary in such situations. State v. Farris, Mo., 243 S.W.2d 983, 987; State v. Derrington, Mo., 137 S.W.2d 468, 470; State v. Wilson, 321 Mo. 564, 12 S.W.2d 445, 446. There is nothing in the record to indicate that the prosecuting attorney was acting unfairly and the court did not abuse its discretion in permitting the witness to testify.

The other witness to whom an objection was made on this ground was one of defendant's witnesses who was recalled to the stand and further examined by the state in rebuttal. The complaint is clearly without merit because the rule and statutory requirements have been held not...