State v. Schmitz
| Decision Date | 17 February 1932 |
| Docket Number | No. 31690.,31690. |
| Parties | STATE v. SCHMITZ. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Buchanan County; J. V. Gaddy, Judge.
John Schmitz was convicted of robbery with a dangerous weapon, and he appeals.
Affirmed.
Stratton Shartel, Atty. Gen., and Don Purteet, Asst. Atty. Gen., for the State.
Defendant, as an habitual criminal, was charged by amended information, filed by the prosecuting attorney of Buchanan county with the crime of robbery with a dangerous and deadly weapon. Upon trial he was found guilty, and his punishment was assessed at life imprisonment in the penitentiary. Defendant's motion for a new trial having been overruled, he appeals to this court.
The state offered direct and substantial testimony tending to prove that on the night of May 3, 1930, J. L. Schwein, a silk salesman, accompanied by C. B. Young, was driving his Chevrolet car on highway 71 from Savannah, Mo., to St. Joseph, Mo. At a point on the highway in Buchanan county, Schwein's car was crowded by another car to the side of the road and forced to stop. Two men stepped out of the other car, and, with weapons in their hands, held up Schwein and Young in the typical mode. Schwein identified the defendant as the man who robbed him at the point of a "blue steel or dark gun." Defendant took from Schwein his automobile, his hat, overcoat, a fishing rod, and two silk hosiery sample cases. The state also established by record evidence that defendant, on October 20, 1920, in the circuit court of Buchanan county, pleaded guilty of charges of burglary and larceny; that he was sentenced to terms of two years in the penitentiary on each charge; that he was granted a parole, which was revoked; that he served his sentences in the penitentiary, and was discharged therefrom. Testifying on his own behalf, defendant admitted these facts offered in support of the charges of being an habitual criminal. He also denied the charge of robbing Schwein, and set up an alibi. A. witness testified that he, and not defendant, committed the crime charged. This witness at the time of the trial was under sentence of ten years in the penitentiary for another robbery. Mr. Young testified in rebuttal of the man who said that he robbed Schwein.
I. The state contends that there is nothing before this court for review except the record proper. The reason assigned is that the record shows that defendant's motion for a new trial was not filed within four days after the return of the verdict, and that the record does not contain any order of court, for good cause shown, extending the time for filing such motion for a period not exceeding ten days from the date of the return of the verdict, as authorized by section 3735, Rev. St. 1929.
The record proper shows that the jury returned its verdict on November 26, 1930, and that defendant filed his motion for a new trial on December 2, 1930. This court takes judicial notice of the calendar and of the days of the week. November 26, the day upon which the verdict of guilty was returned, was Wednesday. In the computation of the four days within which it is mandatory that a motion for a new trial be filed, Sunday is to be excluded. Tuesday, December 2d, on which the motion for a new trial was filed, was the fifth day after verdict,...
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State v. Famber
...F. Berry, Jr., Assistant Attorney General, for respondent. (1) The verdict is sufficient. State v. Humphries, 210 S.W.2d 1002; State v. Schmitz, 46 S.W.2d 539. The court did not err in overruling appellant's assignment of error No. 1 in his motion for new trial. State v. Jacobson, 152 S.W.2......
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State v. Murray, 44258
...98 S.W.2d 777; State v. Loyd, Mo., 233 S.W.2d 658; State v. Mosley, Mo., 119 S.W.2d 297; State v. Porter, Mo., 81 S.W.2d 316; State v. Schmitz, Mo., 46 S.W.2d 539; State v. Villinger, Mo., 237 S.W.2d 132. We now re-assert this holding, but the present motion was filed in time. The paragraph......
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State v. Pittman
...reversible error not being committed by a failure to state the place of imprisonment, which is the State penitentiary. State v. Schmitz (Mo.), 46 S.W.2d 539, 540(III); State v. Steenbergen, 334 Mo. 880, 68 S.W.2d 685[4]. Defendant's request for a new trial on the ground of newly discovered ......
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State v. Pittman
...reversible error not being committed by a failure to state the place of imprisonment, which is the State Penitentiary. State v. Schmitz, Mo.Sup., 46 S.W. 2d 539, 540(III); State v. Steenbergen, 334 Mo. 880, 68 S.W.2d 684, Defendant's request for a new trial on the ground of newly discovered......