State v. Steele, 54053
| Decision Date | 13 October 1969 |
| Docket Number | No. 1,No. 54053,54053,1 |
| Citation | 445 S.W.2d 636 |
| Parties | STATE of Missouri, Respondent, v. Glynn Clinton STEELE, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Michael L. Boicourt, Asst. Atty. Gen., Jefferson City, for respondent.
Daniel P. Reardon, Jr., St. Louis, for appellant.
WELBORN, Commissioner.
A St. Louis County Circuit Court jury found Glynn Clinton Steele guilty of the offense of abortion and fixed his punishment at one year's imprisonment in the county jail. The offense being a graded felony (§ 559.100, RSMo 1959, V.A.M.S.), the appeal came to this court.
At the outset, we are confronted with the question of what contentions of the appellant are properly before this court on the appeal. The requirements of Criminal Rule 27.20(a), V.A.M.R., that a motion for new trial 'set forth in detail and with particularity, * * * the specific grounds or causes therefor' are involved. The pertinent allegations of appellant's motion are:
'3) The State failed to make a submissible case of abortion, in that the acts complained of by the victim were not such as to have caused an abortion.
'4) The State failed to make a submissible abortion case, in that the acts allegedly performed by the defendant were not in violation of the abortion statute.
'5) The Court erroneously admitted into evidence prejudicial hearsay evidence concerning telephone conversations allegedly engaged in by the defendant.
'6) The State failed to establish an abortion case against this defendant, as the evidence adduced established only that the victim had suffered a miscarriage and there was no proof as to the cause of the aforesaid miscarriage.'
His points on this appeal are:
'I.
'The Court erred in failing to grant a new trial or the motions to dismiss and to acquit because the State failed to prove that an abortion was not advised by a duly licensed physician or that the acts performed upon the prosecutrix were not necessary to preserve her life.
'II.
'The Court erred in the giving of Instruction Number One, in that the instruction characterized certain acts as an abortion before requiring the jury to find that the acts were not then and there necessary to preserve the life of the prosecutrix.
'III.
'The Court erred in allowing the State to introduce hearsay evidence concerning telephone conversations without proper foundation.
'IV.
'The Court erred in failing to grant a new trial or the motions to dismiss and acquit because the State did not prove that an instrument was used during the commission of the acts.'
The motion for new trial makes no reference whatsoever to error in instructions. Therefore, Point II is not before us for review. State v. Mathews, Mo.Sup., 328 S.W.2d 642, 644(3); State v. Brown, Mo.Sup., 332 S.W.2d 904, 908--909(4, 5).
Even affording appellant a liberal view of his motion, we are unable to find any relationship between his Point I and the allegations of his motion for new trial. Therefore, that point is not properly before us.
A liberal view of the motion leads us to conclude that Point IV might be considered to be within the purview of Points 4 and 6 of the motion for new trial and we do consider that allegation of error. The charge against the defendant was abortion by means of an instrument and proof of that fact by the state was necessary. Appellant argues that a review of appellate court decisions in this state shows that, in all cases of abortion by instrument, some person was able to testify either to seeing an instrument or to the unquestioned results of instrumentation. However, appellant cites no cases which hold that proof may be only by such methods. Here, the victim testified that defendant came into the motel room where the offense occurred, told her to lie on the bed in a manner which prevented her observation of his actions; that, after the vaginal opening had been stretched, she felt a 'cold sensation up in the middle of (her) abdomen.' She testified that, from the feeling she experienced, the sensation was caused by 'a metal rod of some sort.' She further testified that she could feel the object being pressed down five or six times, producing a draining of liquid 'like a discharge from my vaginal area.'
The witness's acknowledgment that she did not see the object does not affect the probative effect of her testimony, which was clearly adequate to support a finding of the use of an instrument.
On the assignment relating to testimony pertaining to telephone calls, the motion for new trial is directed at evidence pertaining to conversations allegedly engaged in by the defendant. We, therefore, do not consider claim on this appeal relating to conversations with others. The appellant was a graduate of a chiropractic school, although he had never been licensed to practice that profession. He testified that he was called 'Doc' by some people. The victim testified concerning telephone conversation with a caller who identified himself only as 'Doc,' and the motion for new trial will be considered addressed to such testimony.
The victim was an unmarried 19-year-old college student. She discussed the possibility of her being pregnant with a friend named Cindy. A few nights...
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State v. Phillips
...by objection or in the motion for new trial and, for that reason, it is not for review. See authorities supra, and see also State v. Steele, Mo., 445 S.W.2d 636, 638; State v. Gooch, Mo., 420 S.W.2d 283, 287(9--11); State v. Jones, Mo., 386 S.W.2d 111, Nor is there any 'plain error,' Rule 2......
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