State v. Smith
| Decision Date | 23 February 1934 |
| Docket Number | 33386 |
| Citation | 68 S.W.2d 696 |
| Parties | STATE v. SMITH et al |
| Court | Missouri Supreme Court |
Roy McKittrick, Atty. Gen., and Chas. M. Howell, Jr., Asst. Atty Gen., for the State.
An information was filed in the circuit court of Greene county Mo., charging Jack Allen, Rolla Wilson, and the appellants with first degree robbery with a deadly and dangerous weapon. A severance was granted these appellants. They were convicted and sentenced to thirty-five years in the penitentiary.
The evidence for the state tended to show that on the 18th day of March, 1933, these appellants with Allen, Wilson, and three other men broke out of the Greene county jail and, as they left the building, Allen took a revolver belonging to one of the deputy sheriffs. Allen, Wilson, and the appellants went together in a westerly direction down an alley into Nichols street, in Springfield, Mo. The other three prisoners ran in a different direction. As they were leaving the jail, they exchanged shots with the deputy sheriffs.
R. E Huntsman, the prosecuting witness, was in an automobile on Nichols street when Allen approached the car from the driver's side, opened the door of the car and at the point of a gun compelled Huntsman to move to the other side of the seat. About this time three other men were seen entering the car. Huntsman was pushed out of the car onto the pavement. These four men then drove away.
Several days later the officers of Boone and Newton counties, Ark., arrested these appellants, Allen and Wilson, at a place called Dead Man's Hollow. While making the arrest, there were several shots exchanged between Allen and one of the officers. The gun used by Allen was later identified as belonging to one of the deputy sheriffs of Greene county.
At the time these men were arrested, they were completing a log cabin which they had been building. The cabin was searched, in it pieces of chinaware were found which later were identified by the prosecuting witness as his property. His occupation was that of a salesman selling chinaware. These four prisoners were later returned to the Greene county, Mo., jail for trial.
The appellants have not favored us with a brief, but we will examine the points in the motion for a new trial, as we are required to do by the statutes.
I. The appellants' first assignment of error is 'because the verdict of the jury is result of bias and prejudice; is against the evidence and the law under the evidence; is against the weight of the evidence and the law under the evidence and is for the wrong party.'
This assignment of error is too general to comply with section 3735, R. S. 1929 (Mo. St. Ann. § 3735, p. 3275), and presents nothing for our review. No facts are shown upon which to base the charge that the verdict is the result of passion and prejudice, and therefore we are without power to interfere with the verdict. State v. Maness (Mo. Sup.) 19 S.W.2d 628. In the case of State v. Sherry, 64 S.W.2d 238, we recently held that the other grounds urged for reversal in this assignment of error go rather to the weight of the testimony and not to its sufficiency. The weight of the evidence is for the jury and the trial court.
II. The second assignment of error is that the court erred 'in permitting the state to prove that defendants had committed crimes other than the one for which they were on trial and in permitting the state to prove all about the conduct, activities and doings of one Jack Allen both in the presence of and in the absence of these defendants without the state first having established any conspiracy between Jack Allen and the defendants.'
We have searched the record and in only two instances have we found any objection to this testimony. In both instances the objections were sustained and the jury directed to disregard the questions.
We must, in the interest of orderly procedure, adhere firmly to the rule that proper objections must be made to the court and exceptions saved to the court's ruling to entitle a party to a hearing here on alleged errors, State v. Wana, 245 Mo. 558, 150 S.W. 1065; State v. Eddy (Mo. Sup.) 199 S.W. 186; State v. Ingram, 316 mo. 268, 289 S.W. 637. In this state of the record the admissibility of this evidence cannot be reviewed.
III. The appellants' third assignment of error is that their demurrer to the evidence should have been sustained. The evidence showed that these appellants broke out of jail in company with Jack Allen and Wilson. The...
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