State v. Shuls

• Decision Date: 01 December 1931
• Docket Number: 31446
• Citation: 44 S.W.2d 94,329 Mo. 245
• Parties: The State v. Virgil Shuls, Appellant
• Court: Missouri Supreme Court

44 S.W.2d 94

329 Mo. 245

The State v. Virgil Shuls, Appellant

No. 31446

Supreme Court of Missouri

December 1, 1931

Appeal from Greene Circuit Court; Hon. Warren L. White Judge.

Reversed and remanded.

Stratton Shartel, Attorney-General, and C. A. Powell Assistant Attorney-General, for respondent.

(1) The indictment is for first degree robbery. It substantially follows the language of Sec. 4058, R. S. 1929, and is therefore sufficient. State v. Newland, 285 S.W 400; State v. Deviney, 278 S.W. 726; State v. Dickens, 285 S.W. 445; State v. Cantrell, 234 S.W. 800. (2) The allegation of defendant in his motion for new trial that the affidavit upon which the charge is predicated is insufficient in that it is based upon the information and belief of affiant, who was assistant prosecuting attorney, and that he is an incompetent witness to testify against the defendant, and that any proceeding thereon deprived the defendant of his constitutional rights under Section 22 of Article II of the Constitution, and the allegation in said motion that defendant had not been accorded a preliminary hearing as provided by the constitution and laws of the State, present nothing for review, where defendant makes the same allegation in a motion to quash but does not incorporate said motion, the ruling thereon and exception thereto in the bill of exceptions, although the motion to quash is set out in the record and evidence is offered at the hearing on the motion for new trial to the effect that the affidavit was based on the information and belief of the affiant. (3) The fact that the prosecuting attorney made affidavit for complaint on his information and belief, and the fact that the defendant was not accorded a preliminary hearing, cannot be raised in the motion for new trial or motion in arrest. These matters are waived if not raised before trial. State v. Dooms, 217 S.W. 43; State v. Pritchett, 219 Mo. 696; State v. Bishop, 231 Mo. 411; Ex parte McLaughlin, 210 Mo. 657; State v. Ferguson, 212 S.W. 339. (4) Assignments of error made in a motion for a new trial cannot be considered where the error claimed does not appear on the record. A motion for new trial does not prove itself. State v. Pinkard, 300 S.W. 748; State v. Thomas, 180 S.W. 886; State v. Cantrell, 6 S.W.2d 839; State v. Webb, 300 S.W. 706. (5) A motion to quash an information is no part of the record proper and can be reviewed only when made a part of the record by being preserved in the bill of exceptions, together with the rulings thereon and exception thereto. (6) Sec. 1063, R. S. 1929; State v. Brown, 304 Mo. 78; State v. Henggeler, 312 Mo. 15; State v. Cobb, 309 Mo. 89; State v. Tally, 22 S.W.2d 787; State v. Moore, 279 S.W. 133; State v. Fenley, 193 Mo. 202. (7) Although Sec. 3418, R. S. 1929, provides that in misdemeanor cases a complaint before a justice of the peace must be verified by the oath of a person competent to testify, and although Secs. 3504 and 3505, R. S. 1929, provide that the information of a prosecuting attorney may be made on his information and belief, or on the oath of a person having knowledge and competent to testify, Sec. 3467, R. S. 1929, provides that whenever any complaint in felony cases is made in writing upon oath, before a magistrate, he shall issue a warrant. This section does not provide that the oath must be on knowledge or by one having knowledge, or by one who is competent to testify. Furthermore, since Section 3504 provides that an information may be based on the information and belief of the prosecuting attorney, he may make oath to any pleading or paper in connection with the prosecution on his information and belief. State v. Halbrook, 279 S.W. 395; Secs. 3467, 3504, 3505, 3418, R. S. 1929. (8) The refusal to allow defendant to show by standard almanac the time the sun set on the date of the robbery, and the time the moon arose, is harmless error, if any, since it would not impeach the prosecuting witness and her companion who testified the robbery occurred about seven-thirty, January 10, 1931, and that the sun had set and that the moon had not risen, that it was a dark night, and that they saw defendant by the aid of an electric light. State v. Burlison, 285 S.W. 712. (9) A reading of an instruction to the jury by the prosecuting attorney during his argument, that was given by the court at defendant's request, to the effect that the failure of the defendant to testify raised no presumption of guilt, and such failure to testify shall not be referred to by an attorney in the case nor considered by the jury, and then the making of the statement by the prosecuting attorney, "Now, gentlemen of the jury, I am estopped by that instruction," are not error, since the same were invited by the giving of the instruction, the instruction being constantly before the jury up to the time it returned the verdict. (10) The argument of a prosecuting attorney, although improper and erroneous, is not saved for review unless and until objected to by defendant. State v. Sanders, 4 S.W.2d 813; State v. Webb, 254 Mo. 414. (11) The objection to the reading of the instruction and the statement of the prosecuting attorney, is as follows: "We certainly object to that, your Honor." This is a general objection, and therefore refusal of the court to reprimand for the argument is not error. State v. Allison, 300 S.W. 1069. (12) When in response to the request of defendant to disregard the statement of prosecuting attorney and to reprimand him for making the same, and the court says, "Gentlemen of the Jury, you should not consider those remarks by the attorney; they should not have been made by him and should be disregarded by you," and the defendant said, "We want to except that he is not reprimanded," the statement of the court is a reprimand and the exception of the defendant was the failure to rebuke at all. There is no exception to the sufficiency of the rebuke, and nothing is preserved for review. State v. Kelley, 284 S.W. 801; State v. Gensler, 295 S.W. 1081; State v. Rasco, 239 Mo. 535; State v. Harvey, 214 Mo. 403; State v. Baker, 209 Mo. 444. (13) The statement of the prosecuting attorney that, "Who was there at the hold-up, gentlemen of the jury? There were three parties there and these two girls were the only ones that testified, and what did they say?" is reference to testimony as uncontradicted, and is not comment on the failure of the defendant to testify. State v. Brugioni, 7 S.W.2d 262; State v. Steele, 217 S.W. 80; State v. Hughes, 258 Mo. 364; State v. Gordon, 253 Mo. 510; State v. DePriest, 232 S.W. 83; State v. Harrison, 263 Mo. 642. (14) The allegation in the motion for new trial that the court erred in refusing to give instructions 3, 4 and 5, setting them out, is too general and preserves nothing for review. State v. Bailey, 8 S.W.2d 57; State v. Taylor, 8 S.W.2d 36; State v. Walker, 14 S.W.2d 441; Section 3735, R. S. 1929. (15) The giving of an instruction relative to credibility of witnesses is discretionary with the trial court, and it is not error not to give it, especially when not requested. State v. Miller, 292 S.W. 440; State v. Brown, 270 S.W. 275; State v. Caviness, 33 S.W.2d 943; State v. Headley, 18 S.W.2d 37.

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

Defendant was convicted of robbery in the first degree, sentenced to twenty-five years imprisonment in the penitentiary, and has appealed.

The State's evidence tended to prove that at about 7:30 or 7:40 P. M., on Saturday, January 10, 1931, the prosecuting witness Velma Fraser and a girl companion, Elizabeth Flannery, students at Drury College, Springfield, Missouri, were stopped while on their way to their dormitory and robbed by a man whom they did not know. When they first saw the man he was standing near a hedge on the college campus. To avoid meeting him they started running across the campus toward the dormitory. The man followed them and commanded them to stop. He presented a pistol and ordered the young ladies to hand over their pocketbooks, threatening to shoot them unless they obeyed. They did obey. The robber took from both their pocketbooks. In that of Miss Fraser there was a $ 5 bill and some small change. He also demanded their rings, and when they said they had no rings he compelled them to remove their gloves. Miss Fraser wore a ring which the man compelled her to give him. The young ladies surrendered their valuables, fearing that unless they did so the robber would shoot them as he threatened to do. There were no witnesses to the robbery except the two girls.

The night was rather dark, but there was a street light not far from the place of the robbery. Both girls testified that they could see the robber sufficiently well to distinguish his features and to see how he was dressed. They at once reported the robbery and gave a description of the robber. Defendant was arrested at his home in Springfield about a week later. The police were directed to him by the description given by the girls. When arrested defendant was dressed substantially as the girls had described the dress of the man who robbed them. Both girls saw defendant at the police station, heard him speak and both positively identified him at the trial as the man who had robbed them. They testified that they recognized him at the police station and identified him by his voice, his face and "appearance" and by his clothes. The pocketbooks, empty, were found several blocks from the place of the robbery. The ring and money were not recovered. None of the stolen property was found upon defendant.

Defendant did not testify. He called seven or eight witnesses, none of whom were impeached, whose testimony tended strongly to prove an alibi for him. Defendant is not represented by coun...