State v. Taylor

• Decision Date: 04 June 1929
• Docket Number: 29493
• Parties: The State v. Edward Taylor, Appellant
• Court: Missouri Supreme Court

18 S.W.2d 474

323 Mo. 15

The State v. Edward Taylor, Appellant

No. 29493

Supreme Court of Missouri

June 4, 1929

Appeal from Circuit Court of City of St. Louis; Hon. Claude P Pearcy, Judge.

Affirmed.

Fred A Gossom for appellant; Joe F. Callahan and Robert J. Callahan of counsel.

(1) The information, judgment and verdict are invalid and void upon the whole record because said judgment and verdict is without warrant or authority of law. The information on which the appellant was placed on trial and the evidence introduced on behalf of the State to support the information and the verdict returned by the jury were according to a law which was no longer in existence, having been repealed by Laws of 1927. The body of the information pertaining to second offense was drawn according to Sec. 3702, R. S. 1919, said section being commonly known as the Habitual Criminal Act and repealed and a new section enacted therein pertaining to offenses committed while armed and adding to this punishment for successive offenses by the trial court. Laws 1927, p. 173. (2) The court erred in its instructions as to the degree of punishment the jurors were to inflict, if they found the appellant guilty of robbery in the first degree, and the verdict returned by the jury finding the defendant guilty of robbery in the first degree and assessing his punishment at life in the penitentiary was void, without warrant or authority of law in that said jury were instructed and said verdict returned by them according to Sec. 3310, R. S. 1919, when said section had been expressly repealed and a new section enacted in lieu thereof. Laws 1927, p. 174. (3) The court erred in not sustaining defendant's motion for new trial because of said newly discovered evidence, which would no doubt have changed the verdict in said cause. (4) The court erred in admitting the certificate from the Missouri State Penitentiary giving discription of convict. (5) The evidence introduced on behalf of the State was insufficient to support the verdict in that it failed to show the appellant's connection with said crime.

Stratton Shartel, Attorney-General, and Henry Depping, Assistant Attorney-General, for respondent.

(1) The information is sufficient. It contains all the necessary averments required to properly charge the crime of robbery in the first degree and a prior conviction. It fully informs the defendant of the charge against him. Sec. 3307, R. S. 1919; Sec. 3702, R. S. 1919; State v. Calvert, 209 Mo. 286; State v. Collins, 266 Mo. 97; State v. Payne, 223 Mo. 116; State v. Macon, 287 S.W. 775; State v. Kilcullen, 256 S.W. 739. (2) Sec. 3702, R. S. 1919, was not repealed by Laws 1927, p. 173. (a) This question is not properly before this court for review. In the motion for a new trial appellant did not specifically raise the question. The motion for a new trial must set forth in detail and with particularity the specific grounds therefor. Sec. 4079, Laws 1925, p. 198; State v. Stephens, 8 S.W.2d 3; State v. Standifer, 316 Mo. 49, 289 S.W. 856; State v. Murrell, 289 S.W. 859. (b) If this point was properly raised, Section 3702 is not repealed by the Act of 1927. The repeal of statutes by implication is not favored by the courts, and the presumption is always against the intention to repeal when express terms are not used. State v. Bishop, 41 Mo. 16; State ex rel. Hyde v. Buder, 315 Mo. 791; State ex rel. Turner v. Penman, 282 S.W. 498; Road District v. Huber, 212 Mo. 551; Barnett v. Bellows, 315 Mo. 1100, 287 S.W. 604; State v. Brotzer, 245 Mo. 499. (c) A clause repealing "all acts or part of acts inconsistent with this act," or containing a like clause, leaves open for judicial determination the question as to whether there is such irreconcilable conflict and repugnancy as to demand the repeal of the former act. State ex rel. v. Clark, 275 Mo. 95, 204 S.W. 1090; Stricklen v. Printing Co., 249 Mo. 614; Nichols v. Hobbs, 197 S.W. 258. Where there are two statutes on the same subject, they should be so construed that both may stand, if possible, the later statute merely repealing the former pro tanto as to inconsistent provisions. State ex rel. Holladay v. Rinke, 140 Mo.App. 662; Wrightsman v. Gideon, 296 Mo. 214, 247 S.W. 135; State ex rel. v. Walbridge, 119 Mo. 389; 25 R. C. L. 916, sec. 167. A later act which makes no reference to an existing statute does not repeal the existing statute unless the two are irreconcilably inconsistent, and they are not if the later act may reasonably be considered as merely affirmative or cumulative or auxiliary to the former. White v. Greenway, 303 Mo. 691; State ex rel. v. Wells, 210 Mo. 620. Two penal provisions, passed in one act or at different times, may co-exist though covering in part the same acts, and applicable in part to the same persons, and prescribing different penalties. One will not render the other nugatory contrary to the legislative intent. 1 Lewis-Sutherland on Statutory Construction, sec. 252. (3) The Act of 1927, Laws 1927, p. 174, repealing Sec. 3310, R. S. 1919, and enacting a new section, did not alter the punishment in this case. (4) Records of appellant's prior conviction were admissible as evidence for the purpose of identification. State v. Boyd, 178 Mo. 16; State v. Vaughan, 199 Mo. 111; State v. Payne, 223 Mo. 117; State v. English, 274 S.W. 473. (a) No objection was made, or exception saved to the introduction of the Bertillon record. (b) No proper objection was made to the introduction of the certified copy of appellant's prior record at the Missouri penitentiary. (c) The testimony and the information in the prior case were admitted for purposes of identification and were competent for that purpose. (5) In order for the appellant to complain of the rulings of the court on the admission of evidence, his objections must be timely and specifically state the reasons therefor, and this court should not convict the trial court of error, even though the evidence should not have been admitted if proper timely objections had been made. State v. Tipton, 271 S.W. 58; State v. Strait, 279 S.W. 113. (6) It is obvious that the challenge of Juror 13 should have been sustained. Furthermore, this is largely in the discretion of the trial court. Kelly v. Sinn, 277 S.W. 360.

OPINION

Blair, P. J.

Appellant, together with Elmer Schneider and Joseph Buschman, was charged with the crime of robbery in the first degree, as defined by Section 3307, Revised Statutes 1919. A former conviction of felony was alleged against each defendant, thus bringing the case within Section 3702, Revised Statutes 1919, usually referred to as the Habitual Criminal Act. Appellant was separately tried and found guilty of robbery as charged, and also guilty of a prior conviction of felony, as also charged in the information. His punishment was accordingly assessed by the jury at imprisonment in the penitentiary during his natural life. He was granted an appeal from the judgment entered on such verdict.

A brief statement of the evidence will suffice. William G. Nicklin was president of Nicklin Tannery Company, doing business at 409 South Second Street in the city of St. Louis. At about 12:30 P. M., on Saturday, August 13, 1927, Mr. Nicklin was in his office at that place making up the weekly pay roll for the employees of the Tannery Company, when four or five men armed with pistols appeared at the office and took from him over three hundred dollars in money, belonging in part to him and in part to his company, and departed in an automobile previously parked in the alley at the rear. Nicklin did not identify appellant as one of the men who took the money. However, he did identify Buschman, appellant's co-defendant, as one of the men.

An eighteen-year-old negro boy, named O'Dell Slattery, testified on behalf of the State that he worked as pony boy for one John Berne, who conducted a blacksmith shop in the alley in the rear of 415 South Second Street; that on the forenoon of the robbery appellant drove and parked in the alley near the shop a gray colored Hudson automobile; that appellant, Buschman, Schneider and others were frequently at this blacksmith shop; and that these men were around the shop on the day of the robbery until about 12:30 P. M.; that they then all armed themselves with pistols and left the shop; that appellant went to the Hudson automobile and remained there, while Buschman, Schneider and the others went toward the Nicklin Tannery; that in about five minutes these men came running into the alley carrying a sack and entered the automobile in which appellant was seated at the time with the engine running; that they immediately drove out of the alley and disappeared. Appellant was arrested the next morning, but had only a few dollars and no weapon of any character upon his person.

The record of a former conviction of appellant for the crime of robbery in the city of St. Louis was put in evidence, together with the penitentiary record showing his discharge from that institution. Appellant was identified as the Edward Taylor mentioned in said records by the officer who arrested him upon the former occasion and by the record of his finger prints.

Appellant took the witness stand and contented himself with stating his age (twenty-two years) and giving his place of residence. He offered several witnesses who testified to his presence in Webster Groves and later at his uncle's home in St. Louis County on the day of the robbery. The period thus covered included not only the time of the robbery, but some hours before and after it was committed.

A witness was also offered by appellant in an attempt to impeach the witness Slattery. This witness said that Slattery told her he could not identify appellant as one of the robbers. Slattery was recalled...