State v. Stanton
| Decision Date | 23 February 1934 |
| Docket Number | No. 33359.,33359. |
| Citation | 68 S.W.2d 811 |
| Parties | STATE v. STANTON. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.
George Stanton was convicted of robbery in the first degree, and he appeals.
Affirmed.
Jno. E. Heffley, Hobson Hoar, and Wm. N. Linn, all of St. Joseph, for appellant.
Roy McKittrick, Atty. Gen., and Wm. W. Barnes, Asst. Atty. Gen., for the State.
The appellant was charged in the circuit court of Buchanan county with the crime of robbery in the first degree. He was also charged by the information with having been previously convicted and having served a sentence for burglary in the second degree and for larceny. In the present case the appellant was convicted and the jury assessed his punishment at life imprisonment in the penitentiary. From this judgment he has duly perfected an appeal to this court.
This is a companion case to the case of State v. DeShon, 68 S.W.(2d) 805, decided at this term of this court. Separate informations were filed against the appellant and DeShon. The evidence adduced on behalf of the state is substantially the same as that in the De Shon Case and reference is made to that case for a statement of the evidence in this case, except that this appellant did not introduce any evidence. Other necessary facts will be stated in the course of this opinion.
The appellant has not favored us with a brief, but we will examine the points raised in his motion for a new trial.
I. The first three assignments of error in appellant's motion for a new trial are as follows:
With the exception of the assignment that there is no substantial evidence to support the verdict, the above assignment is too general to comply with section 3735, R. S. 1929 (Mo. St. Ann. § 3735, p. 3275), and cannot be considered. State v. Goodwin (Mo. Sup.) 61 S.W.(2d) 960, and the cases therein cited.
II. We believe there was substantial evidence to support the verdict. In the first place, the appellant was positively identified by Edna Robison, the prosecuting witness, and a state's witness named Fulton. The testimony on behalf of the state is that the prosecuting witness and Fulton were riding in a car in or near St. Joseph, Mo., when they were stopped by the appellant and DeShon. DeShon pointed a gun at Fulton, compelled him to get out of the car and then robbed him of a small amount of money, while the appellant covered the prosecuting witness with a revolver. With a gun in his hand DeShon got into the back seat of the car and compelled Fulton and the prosecuting witness to drive to a school house. Appellant followed them in another car. Then the appellant forced the prosecuting witness to accompany him into the school house. After Fulton was locked in an out building by DeShon, the latter went into the school house. Then appellant by force took a diamond ring from the prosecuting witness. We believe this evidence is sufficient to show that the ring was taken from the person of the prosecuting witness and against her will both by violence to her and by putting her in fear by means of a deadly or dangerous weapon as both had revolvers. She further testified that they struck her and threw her to the floor and then took the ring from her.
The weight of the evidence was for the jury, subject to the superintendence of the trial court. We hold there was substantial evidence to convict the appellant of the crime of robbery in the first degree by the use of a deadly and dangerous weapon.
III. The fourth assignment of error is that the court erred in giving instruction No. 4. This instruction told the jury that, if it found that the appellant had been duly convicted of burglary and larceny and in compliance with that conviction he served a term in the penitentiary for that offense and afterwards was duly discharged therefrom, and that acting alone or in conspiracy with DeShon, robbed the prosecuting witness of her property and that a pistol was used by the appellant in accomplishing the robbery, the jury could assess his punishment at death or life imprisonment. The appellant was on trial for first degree robbery. Section 4461, R. S. 1929 (Mo. St. Ann. § 4461, p. 3063), the habitual criminal section, of itself creates no offense, but its essential elements are pleaded and proved, it does prescribe a greater punishment to be fixed by the jury finding the accused guilty of the offense of first degree robbery. State v. Garrish (Mo. Sup.) 29 S.W.(2d) 71; State v. Bresse, 326 Mo. 885, 33 S.W.(2d) 919.
This section provides that, "if such subsequent offense be such that, upon a first conviction, the offender would be punishable by imprisonment in the penitentiary for life, or for a term which under the provisions of this law might extend to imprisonment for life, then such person shall be punished by imprisonment in the penitentiary for life."
Since the punishment for robbery in the first degree committed by the use of a deadly weapon, under section 4061, R. S. 1929 (Mo. St. Ann. § 4061, p. 2863), is not less than ten years, with no maximum limit, under section 4461, supra, the verdict should be imprisonment for life.
Further complaint is made of this instruction because of "the mentioning in said instruction the name of Elliott DeShon, who was indicted separately and was not on trial was highly prejudicial to defendant."
There is sufficient evidence to show a conspiracy between appellant and DeShon to commit the offense charged and therefore it was proper to instruct on conspiracy. State v. Sturrs (Mo.Sup.) 51 S.W.(2d) 45.
IV. The fifth and sixth assignments of error are that the trial court did not have jurisdiction to try this cause, because the appellant attempted to disqualify Judge L. A. Vories, Judge Sam Wilcox, and Judge J. V. Gaddy, for the reasons stated in the case of State v. DeShon (Mo. Sup.) 68 S.W.(2d) 805. These assignments of error are overruled.
V. The seventh assignment of error is that "the court erred in overruling the appellant's challenge to E. H. Dawson and Gerald W. Carolus as jurors" for the reason that they had formed an opinion which would require evidence to overcome. These jurors testified that their opinions were based on newspaper reports and rumor and that they could base their verdict solely upon the evidence and the instructions of the court. The trial court was in position to judge the...
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State v. Higdon
... ... prejudice defendant; but it is proper to keep the jury within ... the law and the evidence and, hence, the instructions within ... declarations applicable [356 Mo. 1062] to the facts in ... evidence. State v. Kauffman, 329 Mo. 813, 824(b), 46 ... S.W. 2d 843, 847[5]; State v. Stanton (Mo.), 68 S.W ... 2d 811, 813[11]; State v. Farmer (Mo.), 111 S.W. 2d ... 76, 79[4]; State v. Mundy (Mo.), 76 S.W. 2d 1088, ... [204 S.W.2d 756] ... State ... v. Gibilterra, 342 Mo. 577, 585, 116 S.W. 2d 88, 94[5], ... states the rule: "If the issue is submitted to the ... ...
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State v. Higdon, 40074.
... ... State v. Kauffman, 329 Mo. 813, 824(b), 46 S.W. 2d 843, 847[5]; State v. Stanton (Mo.), 68 S.W. 2d 811, 813[11]; State v. Farmer (Mo.), 111 S.W. 2d 76, 79[4]; State v. Mundy (Mo.), 76 S.W. 2d 1088, 1091[6] ... 204 S.W.2d 756 ... State v. Gibilterra, 342 Mo. 577, 585, 116 S.W. 2d 88, 94[5], states the rule: "If the issue is submitted to the jury and all the ... ...
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