State v. Stubenrouch, 34596
| Decision Date | 11 September 1973 |
| Docket Number | No. 34596,34596 |
| Citation | 499 S.W.2d 824 |
| Parties | STATE of Missouri, Respondent, v. Donald Charles STUBENROUCH, a/k/a Paul Richards, Appellant. . Louis District, Division One |
| Court | Missouri Court of Appeals |
John C. Danforth, Atty. Gen., J. Brendan Ryan, Mark D. Mittleman, Asst. Attys. Gen., St. Louis, Karen I. Harper, Asst. Atty. Gen., Jefferson City, for respondent.
James A. Bell, Allen I. Harris, St. Louis, for appellant.
A jury found defendant guilty of stealing from a dwelling house and under the Second Offender Act the court sentenced him to seven years imprisonment. Defendant appeals.
The evidence of stealing from the dwelling house was uncontradicted and overwhelming. The homeowner saw defendant at close range while prowling through his home. Minutes later police found defendant hiding inside an automobile in and near which they found the homeowner's personal property. Defendant does not question the sufficiency of the evidence, but three issues are raised on appeal.
First, defendant argues the state proved burglary rather than stealing from a dwelling house. Although there was evidence to support a charge of burglary, defendant was not charged with burglary and the state proved all of the elements of the offense charged. This point is denied.
Second, defendant now contends a venire woman should have been stricken for cause when she said she had been the victim of a burglary. Defendant did not ask the court to strike her for cause but instead asked that her answers be stricken; the court did so and instructed the panel to disregard her answers. Hence, this point is without merit.
Defendant's final point concerns the reading of an alias after his name in the amended information and the State's referral to the alias in its opening statement. There was no evidence defendant used an alias. This was noticed by at least one juror who before retiring to deliberate asked the court what was the defendant's 'other known as.' (This inquiry may have been prompted by evidence that one intruder called the other 'Jim.') The court responded that the jury would have to be governed by the evidence and defendant then moved for a mistrial. The court offered to tell the jury to disregard all reference to the alias but defense counsel declined the offer, believing 'that will accentuate it.' Mistrial was denied and defendant has preserved the point on appeal.
In ruling this point we bear in mind that granting a mistrial is a drastic remedy to be used only in extraordinary circumstances. In this the trial court has a broad discretion which we honor absent a clear showing the trial court abused its discretion. State v. Johnson, 496 S.W.2d 852(6, 7) (Mo.1973). An abuse of discretion is an erroneous finding and...
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...before the court--a judicial act which is untenable and clearly against reason and which works an injustice." State v. Stubenrouch, 499 S.W.2d 824, 826[4-6] (Mo.App.1973). Beckman v. Beckman, 545 S.W.2d 300, 301 (Mo.App.1976); see also Thummel v. Thummel, 609 S.W.2d 175, 183[12, 13] (Mo.App......
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...the trial court's action was neither an untenable act nor clearly against reason that worked an injustice. See State v. Stubenrouch, 499 S.W.2d 824, 826 (Mo.App.1973). Judgment SIMEONE, P.J., and GUNN, J., concur. ...
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...before the court--a judicial act which is untenable and clearly against reason and which works an injustice.' State v. Stubenrouch, 499 S.W.2d 824, 826 (Mo.App.1973). Witness Nichols' identification of the defendant was positive, clear, and unequivocal. Defendant wore no mask and was in clo......
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...and works an injustice constitutes abuse of discretion. State v. Williams, 643 S.W.2d 3, 4 (Mo.App.1982), citing State v. Stubenrouch, 499 S.W.2d 824, 826 (Mo.App.1973). When the trial court's ruling clearly offends the logic of the circumstances or when it becomes arbitrary and unreasonabl......