State v. Scott

• Decision Date: 10 October 1960
• Docket Number: No. 48079,No. 2,48079,2
• Citation: 338 S.W.2d 873
• Parties: STATE of Missouri, Respondent, v. Jesse Otis SCOTT, Appellant
• Court: Missouri Supreme Court

Page 873

338 S.W.2d 873

STATE of Missouri, Respondent, v. Jesse Otis SCOTT, Appellant.

No. 48079.

Supreme Court of Missouri, Division No. 2.

Oct. 10, 1960.

Roger J. Barbieri, Kansas City, for appellant.

John M. Dalton, Atty. Gen., J. Burleigh Arnold, Asst. Atty. Gen., for respondent.

STOCKARD, Commissioner.

Jesse Otis Scott has appealed from the judgment, after jury verdict, whereby he was sentenced to confinement in the penitentiary for a term of five years for the offense of stealing from the person. Sections 560.156 and 560.161, Laws of Missouri 1955, p. 507 and Laws of Missouri 1957, p. 374, V.A.M.S.1960 cumulative pocket parts.

Clinton J. Wright testified that about eight o'clock in the evening of May 13, 1959 the defendant accosted him at Tenth and Lydia Streets in Kansas City and demanded $200. After an argument defendant took hold of Mr. Wright's arm and said 'I am going to kill you,' and then struck him knocking him unconscious, fracturing his skull, cutting his lip, and breaking his glasses and dentures. When Mr. Wright regained consciousness his billfold containing $120 was gone from his pocket, and the button on the pocket had been 'jerked off.' Mr. Wright identified a picture of defendant as his assailant, and at the trial he identified and pointed out the defendant as the one who beat him and took his money. Defendant did not testify, but he offered the testimony of two witnesses, one of whom was his sister, that at the time of the commission of the offense he was in church attending a revival service.

Defendant has filed no brief with this court. In his motion for new trial he asserts that the trial court erred (1) in refusing to grant a motion for judgment of acquittal, (2) in refusing to strike out a remark of the prosecuting attorney, and (3) in refusing defendant's request for a continuance.

The previous recitation of the evidence in this case clearly shows that the jury was authorized to find that the defendant took, and thereby appropriated, $120 in cash and a billfold from the person of Clinton J. Wright without his consent. In testing the sufficiency of evidence in a criminal prosecution by motion for a judgment of acquittal, the facts in evidence and favorable inferences reasonably to be drawn therefrom must be considered in a light most favorable to the State. State v. Vincent, Mo.Sup., 321 S.W.2d 439. When the evidence in this case is so considered, a submissible case was made, and the trial court did not err in refusing to enter a judgment of acquittal.

R. A. Wells, a policeman, testified that he had taken a statement from defendant. On cross-examination counsel for defendant asked him if he had the statement with him, and he replied that he did not because he had received a call to go to the court and had done so 'right * * * from off the street.' After some further questions the witness was excused. The prosecuting attorney then stated, apparently to defense counsel: 'Did you want that statement? I will offer it into evidence if you want the statement of the victim. I have it right here.' Out of the hearing of the jury counsel for defendant then said: 'For the record, if the court please, show the prosecutor in court publicly made the question in a demanding voice to me as to whether I wanted the statement, in an attempt to try to prejudice the jury and place the defendant in an embarrassing position as to whether I want the statement, when he knows the statement would not be admissible in evidence, highly prejudicial to the defendant. I ask that his remark be stricken from the record and that the jury be instructed to disregard the statement of the prosecutor.' The ruling of the court was as follows: 'Your motion, Mr. Barbieri, will be overruled. In the cross-examination of this witness you attempted by pointing your finger at the witness and in a loud tone to make some capital out of the fact he did not have some report with him. At the conclusion of the testimony, Mr. Furry [assistant prosecuting attorney] in a well modulated, even tone, courteously asked you if you would like to have that statement from his file. Instead of giving him an answer you chose to make this record. There is nothing improper about it. Motion is overruled.'

Colloquies of this sort between counsel in the presence and hearing of the jury should be avoided. However, the correctness of the statement of the trial court as to what happened is not challenged in the motion for new trial, and we will not, of course, assume it was an incorrect statement....