State v. Sadowski

• Decision Date: 03 December 1923
• Docket Number: No. 24836.,24836.
• Citation: 256 S.W. 753
• Parties: STATE v. SADOWSKI.
• Court: Missouri Supreme Court

256 S.W. 753

STATE v. SADOWSKI.

No. 24836.

Supreme Court of Missouri, Division No. 2.

December 3, 1923.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

Theodore Sadowski was convicted of murder in the first degree, and he appeals. Affirmed.

Jesse W. Barrett, Atty. Gen., and Robert W. Otto, Asst. Atty. Gen., for the State.

Statement.

BAILEY, C.

The grand jury of the city of St. Louis, Mo., on March 7, 1921, returned into the circuit court of said city an indictment, charging therein that appellant, Theodore Sadowski, on the 24th day of December, 1920, was guilty of murder in the first degree, in that he feloniously, etc., shot, and killed one John Arent, in said city. He was arraigned, entered a plea of not guilty, and, on January 24, 1922, after two trials in which the respective juries therein were unable to agree upon a verdict, was placed upon his third trial before a jury, which, on the 25th day of January, 1922, returned the following verdict:

"We, the jury in the above-entitled cause, find the defendant guilty of murder in the first degree, as by the indictment he stands charged, and assess the punishment at imprisonment in the penitentiary for his natural life.

                            "John S. Cavanaugh, Foreman."
                

After timely motions for a new trial and in arrest of judgment were overruled, he was duly sentenced, judgment entered, and an appeal granted him to this court, from said judgment.

The evidence on behalf of the state tended to prove that one John Arent was engaged in the saloon business on the southeast corner of O'Fallon and Main streets in the city of St. Louis; that on December 24, 1920, at about 12 o'clock a. m., the defendant and one Clarence Whitney entered the saloon. Whitney walked up to the bar and ordered a glass of beer. The defendant inquired for the toilet, and entered same. After returning, he stepped up to the bar and ordered a glass of beer. After defendant consumed the glass of beer, he reached in his pocket, drew a revolver, and ordered "hands up" and at about the same time shot the deceased, who was standing at the lower end of the bar near the refrigerator. After shooting the deceased, the defendant and Whitney ran from the saloon, and entered an automobile which was parked in the same block in which the saloon was located.

Some time after the murder, the defendant was found in the home by police officers, hiding under a davanette. He was identified by witnesses who were in the saloon, and also by a witness who saw the defendant run from the saloon at the time of the murder.

The defendant testified in the case, denied his guilt, controverted the main facts relied on by the state, and introduced testimony tending to prove an alibi at the time of the shooting.

No brief was filed here, in behalf of appellant, but various assignments of error appear in his motions for a new trial and in arrest of judgment.

Such other matters as may be deemed important, will be considered later.

Opinion.

1. The indictment contains all the necessary averments to properly charge murder in the first degree, and fully informed defendant as to the charge he was called upon to meet. Section 3230, R. S. 1919; State v. Clay, 201 Mo. loc. cit. 681, 682, 100 S. W. 439; State v. Conley, 255 Mo. loc. cit. 194 et seq., 164 S. W. 193; State v. Wilson (Mo. Sup.) 231 S. W. 596 and following.

II. It is claimed that error was committed in refusing to continue the cause at the instance of defendant. It appears from the record proper that or November 15, 1921, the cause was continued until the next term of said court. The last trial commenced on January 24, 1922, and it does not appear from the record or bill of exceptions that any application for a continuance was asked for after November 15, 1921. As there is no application for a continuance set out in the transcript, the above assignment cannot be considered by this court. State v. Baugh (Mo. Sup.) 217 S. W. loc. cit. 280, 281; State v. Barker (Mo. Sup.) 242 S. W. loc. cit. 410; State v. Sanders (Mo. Sup.) 252 S. W. 633.

III. The motion for a new trial contains assignments 17 to 21, inclusive, in which the trial court is charged with error committed in the impaneling of the jury and the examination of the jurors. None of the proceedings in respect to said matters are contained in the bill of exceptions, and hence are not properly before us. See authorities supra; State v. Sanders, 106 Mo. loc. cit. 195, 17 S. W. 223; State v. Morris, 263 Mo. loc. cit. 354, 172 S. W. 603,

IV. The question as to whether the court erred in permitting the names of certain witnesses to be indorsed on the indictment is not before us for review. It does not appear that defendant filed any motion to quash the indictment, nor does it appear that he asked for a continuance on account of said indorsement. The transcript fails to show any matters of this character in the bill of exceptions, and hence are not open for review here. State v. Barrington, 198 Mo. 23, 95 S. W. 235; State v. Lee, 288 Mo. loc. cit. 50, 231 S. W. 619; State v. Hall (Mo. Sup.) 231 S. W. 1001; State v. Glon (Mo. Sup.) 253 S. W. 364.

V. The bill of exceptions does not contain any of the alleged comments of the trial judge in the presence of the jury. This assignment of error is not open for consideration here. State v. Yeager (Mo. Sup.) 209 S. W. loc. cit. 884.

VI. The argument of the assistant circuit attorney, complained of in said motion, is not incorporated in the bill of exceptions and hence is not the subject of review here. State v. Ellis (Mo. Sup.) 234 S. W. loc. cit. 849; State v. Peters (Mo. Sup.) 242 S. W. loc. cit. 897.

VII. In assignment 24 of said motion, it is claimed the court erred in refusing to permit appellant to prove, by witnesses, that he was the owner and in possession of a large sum of money. The court permitted defendant's mother-in-law to testify that defendant had $350 on said date. No exception was saved to the ruling of the court in excluding any testimony offered by appellant on this subject. State v. Pratt, 121 Mo. loc. cit. 574, 26 S. W. 556; State v. Curtner, 262 Mo. loc. cit. 219, 170 S. W. 1141. This assignment is ruled against appellant.

VIII. In his twenty-fifth assignment of error, appellant complains of the court's ruling in refusing to permit him to show that Clarence Whitney had been acquitted of the murder of John Arent. The trial court committed no error in respect to foregoing matter. It is not competent upon the trial of one charged with murder to show that another, separately charged with the same offense, has been acquitted. State v. Ross, 29 Mo. loc. cit. 39; 16 C. J. 670, par. 1341. See, also, State v. Dastham, 240 Mo. loc. cit. 248, 144 S. W. 492. The above assignment is overruled.

IX. It is contended in said motion that the court erred in refusing to permit appellant to read to the jury the testimony of some of the state's witnesses given at the trial `of Clarence Whitney, in order to contradict their testimony given in this case. The record does not show that any such depositions were offered or excluded by the court, nor is any deposition set out in the record, except that of Whitney, which was read to the jury. Without said depositions appearing in the record, there is nothing for review here in respect to said matters. Even if the alleged depositions were before us, it would have to appear, that a proper foundation bad been paid before they could have been introduced in evidence. State v. Curtner, 262 Mo. loc. cit. 218, 170 S. W. 1141; State v. Devorss, 221 Mo. 469, 120 S. W. 75. In addition thereto, if the depositions were excluded, the record should show this fact, and further show, that a proper exception was saved to the court's ruling. There is nothing in the record which would warrant us in convicting the trial court of error in regard to foregoing matter. In fact, there is nothing here for review concerning said assignment.

X. Appellant, in general terms, charges that improper instructions were given by the court, but does not refer to any particular instruction by number or otherwise. We have examined, with great care, each and all the instructions given in this case. They are all exceedingly clear, fair to defendant and the state, and correctly declare all the law that was necessary for the information of the jury in passing upon the merits of the case.

XI. It is likewise contended in said motion, in general terms, that the court refused to give legal and proper instructions asked by defendant. The law, as declared in defendant's refused instructions, was fully and properly covered by those given by the court. Hence the trial court cannot be convicted of error in respect to foregoing assignment. State v. Allen, 290 Mo. loc. cit. 281, 234 S. W. loc. cit. 844, and cases cited; State v. Bowman, 278 Mo. 492, 213 S. W. 34; State v. Mastin, 277 Mo. 495, 496, 211 S. W. 15; State v. Rose, 271 Mo. loc. cit. 28, 195 S. W. 1013.

It is alleged in said motion that the court erred in overruling defendant's demurrer to the evidence at the conclusion of the whole case. Joseph Arent and his son, Frank Arent, both `testified that defendant came to the saloon where John Arent was working, with Whitney, and that defendant called for a glass of beer, ordered deceased to throw up his hands, and shot him. The testimony of these two witnesses in corroborated by other witnesses and other facts. It was the peculiar province of the jury...