State v. Ross
| Decision Date | 12 December 1927 |
| Docket Number | No. 27936.,27936. |
| Citation | 300 S.W. 785 |
| Parties | STATE v. ROSS. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Randolph County; Allen W. Walker, Judge.
William Ross was convicted on a charge of burglary and grand larceny, and he appeals. Affirmed.
Redick O'Bryan, of Moberly, for appellant. North T. Gentry, Atty. Gen., and A. B. Lovan, Asst. Atty. Gen., for the State.
On February 16, 1926, the defendant was convicted on a charge of burglary and grand larceny in the circuit court of Randolph county, his punishment assessed by the jury at terms of three and two years, respectively, in the penitentiary, and he appealed. There are fifteen errors complained of in appellant's motion for new trial, but we will only consider the two assignments of error in the brief of his learned counsel. State v. Bishop (Mo. Sup.) 296 S. W. 147.
1. The first assignment is that the court erred in admitting hearsay evidence of the witness Minor. Paragraph 6 of the motion for new trial reads:
"Because the court erred in permitting witness Minor to testify, over the objection and exception of the defendant, and give incompetent evidence, by giving in hearsay testimony and testifying to no facts of his own knowledge."
Section 4079 (Laws 1925, p. 198) reads in part:
"The motion for a new trial shall be in writing and must set forth in detail and with particularity in separate numbered paragraphs, the specific grounds or causes therefor."
See State v. Standifer (Mo. Sup.) 289 S. W. 856.
Courts and lawyers and eminent writers have differed as to what is hearsay evidence. It is clear the motion fails to state in detail and with particularity wherein the court erred in this respect. The language is general, and not a compliance with the statute.
Turning to the bill of exceptions, we read that while Minor was on the witness stand the state offered in evidence Plaintiff's Exhibits 4, 5, 6, 7, and 8, which purport to be the Wabash record of John L. Davis on the 13th, 14th, and 15th days of December, 1925. Davis was an employé of the Wabash Railway Company. The defendant objected to this offer as not the best evidence, that the witness could not testify of his knowledge to the accuracy of the record, and that it is an attempt to impeach the witness on a collateral matter and a collateral issue. The court said:
See State v. Wagner, 311 Mo. 391, 279 S. W. 23, 27(6).
The exhibits were admitted in evidence, but they were not incorporated in the bill of exceptions, and are not before us. There is no reference in the motion to the erroneous admission of the exhibits, nor any statement as to what incompetent evidence the witness gave. For this reason, as also for the reason that the exhibits are not preserved in the bill of exceptions, we must rule against this assignment.
2. The other assignment is that the court erred in giving instructions 1 and 2, for the reason that neither instruction required the jury to find the defendant guilty under the evidence beyond a reasonable doubt. In the fourth instruction for the state the court charged the jury as follows:
(Our italics.)
We think there is no merit in this contention. The instructions must be read together as one charge, and...
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State v. Nasello
...understood that, before they were authorized to convict defendant, they must find that he was guilty beyond a reasonable doubt. [State v. Ross, 300 S.W. 785.] In this regard Instruction 3 informed the jury unequivocally that before they could find defendant guilty of murder as charged in th......
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State v. Nasello
...S.W. 468; State v. Aurentz, 286 S.W. 69. All of the instructions must be read together to determine the correctness of any one. State v. Ross, 300 S.W. 785; State English, 11 S.W.2d 1020; State v. Hicks, 3 S.W.2d 230; State v. Robinett, 281 S.W. 29. It was, perhaps, technically inaccurate f......
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