State v. Whitaker

• Citation: 312 S.W.2d 34
• Decision Date: 10 March 1958
• Docket Number: No. 2,No. 45917,45917,2
• Parties: STATE of Missouri, Respondent, v. Jesse DeWaine WHITAKER, Appellant
• Court: United States State Supreme Court of Missouri

Page 34

312 S.W.2d 34

STATE of Missouri, Respondent, v. Jesse DeWaine WHITAKER, Appellant

No. 45917.

Supreme Court of Missouri, Division No. 2.

March 10, 1958.

Motion for Rehearing or to Transfer to Court en Banc Denied

April 14, 1958.

J. K. Owens, Kansas City, for appellant.

John M. Dalton, Atty. Gen., W. H. Bates, Sp. Asst. Atty. Gen., for respondent.

ELMO B. HUNTER, Special Judge.

This is an appeal by defendant-appellant, Jesse DeWaine Whitaker, from his conviction and sentence for robbery, first degree. The sentence imposed was for forty-five years confinement in the state penitentiary.

The amended information charged defendant under the habitual criminal act and for robbery, first degree. It alleged in the customary manner, among other things, that on January 22, 1956, defendant in Jackson County, Missouri, unlawfully and feloniously did make an assault upon one Walter Diessl with a dangerous and deadly weapon; namely a loaded revolver, and robbed him of certain of his jewelry and money of a total value of $12,500. Defendant was arraigned and entered his plea of not guilty. At the request of the defendant, whose counsel of record with permission of court had withdrawn from the case, the trial court on May 7, 1956, appointed Mr. Gene Martin of the Kansas City Bar to serve as his attorney.

Commencing on June 11, 1956, the case was tried before the court and jury. Evidence on behalf of the state was adduced to the following effect: On Sunday, January 22, 1956, at approximately 7:00 a. m., three men came to the front door of the home of Walter C. Diessl and his wife, Maudie Diessl, located in Independence, Missouri. When Walter Diessl went to the door these three men, all of whom were exhibiting guns, forced their way into the house. Two of the men wore masks, and the third who was later identified as being defendant did not wear a mask but did have a false mustache. Defendant acted as leader of the group. He forced Mrs. Diessl who was still in bed to arise and come to the living room where she was required at gun point to remain until the completion of the robbery. Mr. Diessl, also at gun point, was required to go to the basement to his car. Then he was forced to drive defendant and one of the other men to his place of business, a jewelry store located at 226 East Maple in Independence, Missouri. The other masked man remained with Mrs. Diessl and her sick mother and guarded them. At his jewelry store, still at gun point, Water Diessl was required to open the door to his place of business and also to his safe in it. Defendant and the other man took considerable jewelry and money of a total value of $12,400. They tied Walter Diessl with a length of wire. They telephoned the third man at the Diessl home and instructed him to leave. Then they left the jewelry store, and shortly thereafter Mr. Diessl attracted the attention of some people on the street who freed him. The police were called.

Several days later Lt. Walter F. Ziegenbein, of the City of St. Louis Police, on his day off took his car to a garage to obtain an estimate for some needed repair work on it. While there he noticed these three men, who with a companion, also had a car in the garage for repair work. Lt. Ziegenbein noticed that this car had what appeared to be a bullet hole in it. He caused the arrest of these men. Their pictures, together with some others, were sent to Independence where Mr. and Mrs. Diessl immediately selected out of the group of pictures defendant's picture as one of the three who had committed the robbery. They then went to St. Louis and in a police line-up again identified defendant as one of the three robbers. At the trial they both positively and in considerable detail identified defendant as one of the three who had committed the robbery. The state introduced into evidence the usual records to establish defendant's conviction of three prior felonies and subsequent discharge, all in support of its habitual criminal charge.

On behalf of defendant only one witness, Lillian Bugg, was presented. According to her testimony, she saw defendant in the City of St. Louis about the time of the morning that the crime took place. Defendant did not testify. The cause was submitted to the jury under the habitual criminal charge and for robbery, first degree.

On June 13, 1956, the jury returned its unanimous verdict finding defendant guilty of robbery, first degree only, and assessed the punishment at 45 years in the state penitentiary. Defendant's motion for a new trial was filed, and overruled. Thereafter, allocution was given, and defendant was sentenced in accordance with the verdict.

On this appeal defendant has not favored us with a brief, and it is necessary for us to examine the assignments of error contained in his motion for a new trial. Supreme Court Rule 28.02, 42 V.A.M.S.; State v. Burnett, (Banc), 365 Mo. 1060, 293 S.W.2d 335.

The motion for a new trial contains seventy-two assignments of error, and they are numbered accordingly. Many of them, which we will later mention by specific number, refer to matters which if they occurred, are not shown by the record. We are, of course, bound by the record presented for review and, therefore, assignments which are based upon matters not shown by the record cannot be considered or determined. State v. Quilling, 363 Mo. 1016, 256 S.W.2d 751, 754; State v. Burnett, supra. Certain other assignments which we will also mention by their designated number, wholly fail to comply with Supreme Court Rule No. 27.20 which, in part, requires that 'A motion for a new trial shall be in writing and must set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds or causes therefor.'

After a careful examination of the record before us we find that there is nothing in that record to support the following assignments of claimed error in the motion for a new trial: Nos. 1, 9, 10, 11, and 13. The latter four mentioned assignments are, that the court erred in admitting incompetent, irrelevant and prejudicial testimony of certain named people, none of whom even appeared or testified at the trial. Other assignments also totally unsupported in the record are Nos. 63, 69 and 71.

Those assignments of error which are so general and vague as to completely fail to comply with Supreme Court Rule No. 27.20 are: Nos. 2, 4, 6, 7, 8, 12, 64, 65, 66, and 72. The first six mentioned charge that 'the court erred in admitting incompetent, irrelevant and prejudicial testimony of (a named) witness.' It has been held many times by this court that this type of general allegation is not a sufficient compliance with Rule 27.20 and preserves nothing for review. See State v. Burks, Mo.Sup., 257 S.W.2d 919, 920; State v. Jonas, Mo.Sup., 260 S.W.2d 3; State v. Schramm, Mo.Sup., 275 S.W.2d 343, and cases cited therein. The latter four assignments mentioned are equally general and vague. It would unduly prolong this opinion and serve no useful purpose to set them out for separate examination in view of their complete violation of the rule.

The following numbered assignments are so related and similar that they can be discussed as a group; namely, Nos. 14, 15, 16, 17, and 18. These charge that the trial court 'erred in giving instruction Number (naming by number, five different instructions).' Again, we can only conclude that these allegations are so general and vague as to fail completely to comply with either the statutory requirements for a motion for a new trial (Sec. 547.030, V.A.M.S.) or with the requirements of Supreme Court Rule 27.20. As stated by this court in State v. Burnett, supra, 293 S.W.2d loc. cit. 343, 'An assignment which merely states that the court erred in giving a particular instruction, or in refusing to give a particular instruction or in refusing to instruct on a particular matter such as murder in the second degree have been held insufficient in not stating 'in detail and with particularity' the specific grounds or causes of complaint in the motion for a new trial.' On the same subject, see also State v. Gaddy, Mo.Sup., 261 S.W.2d 65; State v. Murray, Mo.Sup., 280 S.W.2d 809. Assignment No. 19 is 'that the court erred in not fully instructing the jury on all the law in the case.' What we have just said applies to this charge of error, and it preserves nothing for our review. See State v. Lamb, Mo.Sup., 239 S.W.2d 496.

Assignments No. 20 and No. 21 complain that the trial court erred in not giving a proper alibi instruction. These two assignments also are insufficient to preserve anything for appellate review. State v. Burnett, supra. In passing we can only comment that in reviewing the record concerning other charges, we note that the trial court did give a proper instruction on the defense of alibi. Cf., State v. Quilling, supra, 256 S.W.2d loc. cit. 754.

Assignments Nos. 22 to 56, both inclusive, charge only that the trial court 'erred in admitting, and allowing to be exhibited to the jury, Exhibit (naming by number 36 different exhibits).' A search of the transcript fails to reveal that there were any exhibits marked, numbered or referred to as exhibits Nos. 34, 35 or 36. Therefore, assignments No. 54, No. 55 and No. 56, based thereon are without merit. Exhibits numbered 12, 16, 26, 27, and 30, were marked at the state's request but were never offered or received in evidence. Thus, assignments No. 32(b), 36, 46, 47, 50 and 51, based thereon are also unmeritorious. Counsel for defendant specifically indicated to the trial court that he had no objection to the introduction in evidence of the following exhibits: Nos. 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, and 17. Not having objected to the admission of these exhibits in evidence defendant has no valid basis for the corresponding assignments of error numbered 23, 24, 25, 26, 27, 28, 29, 30, 31, 32(a), 33, 34, 35 and 37. Defendant did object to the admission in evidence of exhibits Nos. 1,...