State v. Warren
| Decision Date | 09 February 1959 |
| Docket Number | No. 1,No. 46787,46787,1 |
| Citation | 320 S.W.2d 575 |
| Parties | STATE of Missouri, Respondent, v. Norman Douglas WARREN, Appellant |
| Court | Missouri Supreme Court |
Charles M. Shaw, Clayton, for appellant.
John M. Dalton, Atty. Gen., W. H. Bates, Sp. Asst. Atty. Gen., for respondent.
The defendant, Norman Douglas Warren, was tried on December 30, 1957, before a jury in the Circuit Court of St. Charles County, Missouri, and convicted of burglary and larceny. The jury assessed a punishment of six years' imprisonment in the State Penitentiary. By stipulation and agreement of counsel, the verdict was made the basis for judgment of three years' imprisonment for burglary and three years' imprisonment for stealing. A motion for new trial was filed. After overruling the motion, the court sentenced the defendant to serve three years' imprisonment for the burglary and three years for stealing. Defendant appealed from the sentences imposed.
The only points briefed by the defendant pertain to the prosecutor's closing argument to the jury. A brief statement of the evidence will therefore be sufficient.
It appears from the record that on the morning of May 17, 1957, at about 2:30 a. m., police officers noticed a car backing out from between two other cars parked on a lot near a building of the Wilke Motor Company of St. Charles, Missouri. The police officers stopped the car which was found to be occupied by the defendant Warren and two others, Gerstacker and Thompson. In a search of the car and the occupants, the officers found a crowbar, two screwdrivers, two rear-view mirrors, some shop towels, and a pair of gloves. Money was also found: $94 in bills; $12.59 in coins (half dollars, quarters, dimes, nickels, and pennies). Five checks totalling $215.87, belonging to the Motor Company, were also found. The two rear-view mirrors were wrapped in shop towels similar to those used in the shop of the Motor Company. An examination of the rear door of the building disclosed that the door had been opened by force. A cash drawer in the building was found open with only a few pennies therein and a coin receptacle of a soft-drink vending machine was missing. It was also alleged in the information that the defendant had previously been convicted of a felony and had served his sentence therefor. This he admitted when on the witness stand testifying in his own behalf. The State made proof of the previous conviction as alleged in the information. Despite this proof by the State and the admission of the defendant, the jury, as evidenced by the verdict, chose not to believe that the defendant had been previously convicted.
As above-noted, the defendant in his brief complains of statements made by the prosecutor in his closing argument. He claims that the trial court should have sustained the objections made to the argument and should have discharged the jury and declared a mistrial. At the outset, it must be pointed out that the argument of the defendant's counsel to the jury was not preserved in the record. We, therefore, do not know what statements were made by him. This, as we shall see, is important and must be considered in ruling on defendant's points as briefed. The record shows the following occurred when the prosecutor began his closing argument:
'Mr. Shaw (interrupting) If the Court please, I am going to object to that statement and ask that the jury be admonished to disregard that, that the jury be discharged and a mistrial declared.
'Mr. McColloch: In the prosecution of a case, the prosecuting officials investigate the facts and circumstances surrounding these incidents and, based upon that evidence, they proceed to trial.
'Mr. Shaw: If the Court please, I am going to object to that again as an improper comment by the Prosecuting Attorney on his knowledge of the case or his opinion of the case.
The above was made the basis of the first two points briefed by the defendant.
The third and last point briefed was based on the following which occurred at the close of the prosecutor's argument:
'The Court has the duty here of giving you the instructions on the law and the Court has done that.
'I have the duty to prosecute this defendant because, in our opinion, he is guilty beyond a reasonable doubt----
'Mr. McColloch: I apologize, your Honor.
'The Court: Proceed.
'Mr. McColloch: The evidence shows beyond a reasonable doubt that this defendant is guilty of the offense with which he is charged.'
It is defendant's contention that the prosecutor voiced his own opinion that the defendant was guilty; further, that when he did so a mistrial should have been declared. The following three cases were cited to support that contention; State v. Groves, Mo., 295 S.W.2d 169; State v. Vinson, Mo., 107 S.W.2d 16; State v. Reppley, 278 Mo. 333, 213 S.W. 477. Those cases support the...
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State v. Caffey, 51596
...may not express their private opinions of the guilt of defendant, they may state their conclusions based on the evidence. State v. Warren, Mo., 320 S.W.2d 575, 578; State v. Vinson, Mo., 107 S.W.2d 16, 18(4); State v. Gridley, Mo., 353 S.W.2d 705, 707--708(10--12); State v. Johnson, 349 Mo.......
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State v. Martin, 48405
...it is not manifest that the trial court abused its discretion in not reprimanding counsel or in failing to discharge the jury. State v. Warren, Mo., 320 S.W.2d 575; State v. Lorts, Mo., 269 S.W.2d 88. The assignment that 'Instructions numbers 1, 2, 3, 4 and 5 were prejudical and erroneous' ......
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State v. Wallace, 52753
...into the proceedings. An attorney should not express a personal or private opinion as to matters concerning the case. State v. Warren, 320 S.W.2d 575, 577 (Mo. Div. 1 1959). The State's objection to this statement was proper. Further, a trial court has broad discretion in determining the pr......
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State v. Arrington
...the trial court's prompt action shows clearly the justification for the denial of defendant's request for a mistrial. State v. Warren, Mo., 320 S.W.2d 575. Assignment 7 is that the trial court erred in not granting a mistrial for the reason that the state's attorney in his opening statement......