State v. White

• Decision Date: 13 May 1957
• Docket Number: No. 45882,No. 2,45882,2
• Citation: 301 S.W.2d 827
• Parties: STATE of Missouri, Respondent, v. Ulysses WHITE, Appellant
• Court: Missouri Supreme Court

Page 827

301 S.W.2d 827

STATE of Missouri, Respondent, v. Ulysses WHITE, Appellant.

No. 45882.

Supreme Court of Missouri, Division No. 2.

May 13, 1957.

Richard B. Kirwan, Kansas City, for appellant.

John M. Dalton, Atty. Gen., Hugh P. Williamson, Asst. Atty. Gen., for respondent.

STOCKARD, Commissioner.

Defendant, Ulysses White, was convicted of the offense of robbery in the first degree by means of a dangerous and deadly weapon. Sections 560.120 and 560.135 RSMo 1949, V.A.M.S. Punishment was assessed by the jury at seven years imprisonment in the penitentiary. Defendant has appealed, and although he was represented by counsel in the trial court, he has filed no brief here. We shall look to defendant's motion for a new trial for his assignments of error. State v. Ryan, Mo.Sup., 275 S.W.2d 350.

The first assignment of error is that 'the verdict of the jury was a result of bias and prejudice against the defendant and not of their cool and considered judgment.' Supreme Court Rule 27.20, 42 V.A.M.S., requires that a motion for new trial 'must set forth in detail and with particularity * * * the specific grounds or causes therefor.' This requirement is mandatory. State v. Gaddy, Mo.Sup., 261 S.W.2d 65. The above assignment fails to meet the minimum requirements of this rule and preserves nothing for review. State v. Schramm, Mo.Sup., 275 S.W.2d 343.

In the second assignment of error, defendant states that 'the testimony of the complaining witness, which was not supported by any additional testimony, was conflicting, confusing, and in many ways inarticulate,' and he also complains that in the trial of the case the prosecuting witness testified concerning an assault with intent to rape made by defendant against her. He contends that he was surprised by this evidence and that it was highly inflammatory.

By reason of an extremely liberal application of Supreme Court Rule 27.20, the first part of this assignment, pertaining to the quality of the testimony, will be treated as a challenge to the sufficiency of the evidence and will be discussed in connection with the next following assignment of error.

As will subsequently be shown, the assault with intent to rape occurred immediately following the robbery, and testimony concerning the assault was admissible because the act constituted a part of the res gestae and was inseparable from the robbery. See State v. Gentry, Mo.Sup., 212 S.W.2d 63[2-3]; State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877; State v. Ward, 337 Mo. 425, 85 S.W.2d 1. In addition, defendant made no objection to the testimony when it was offered and subsequently made no motion to strike the testimony. In State v. Gaddy, Mo.Sup., 261 S.W.2d 65, 68, it was stated that 'an assignment of error should be founded upon objections and grounds therefor as stated at the time the testimony is introduced.' See also State v. Slaten, Mo.Sup., 252 S.W.2d 330. 'There is nothing before us for review in the absence of a timely objection or, in some instances, a motion to strike.' State v. Pittman, Mo.Sup., 221 S.W.2d 163[2, 3], 164. Issues pertaining to the admission of testimony are not timely presented when first raised in a motion for new trial. State v. Rector, 328 Mo. 669, 40 S.W.2d 639; State v. Beaghler, Mo.Sup., 18 S.W.2d 423; State v. Pittman, supra .

The third assignment of error challenges the sufficiency of the evidence pertaining to the identification of the defendant as the person who committed the robbery. The state introduced competent evidence from which the jury could reasonably find that on March 6, 1956, while Mrs. Geraldine Miller was operating a delicatessen at 3012 East 25th Street in Kansas City, the defendant came into the store and asked for cigarettes. He then purchased some matches, and when Mrs. Miller made change he produced a gun which he pointed at her and then ordered her to open the cash register. He took some of the money from the register, locked the front door of the store, and ordered Mrs. Miller to go to the back part of the building where there were living quarters. He there made an assault upon her, apparently with the intent to rape, and struck her with the gun, but she fought him off and he fled. A little over a month later, while sitting in a car at 23rd Street and Prospect waiting for a traffic light to change, Mrs. Miller saw the defendant enter a pool hall. She immediately called the police, pointed him out to the officer who responded to her call, and had him arrested. She later identified the defendant in a police lineup, picking him from a group of four. At the trial she positively identified the defendant as the man who committed the robbery. The evidence was sufficient and substantial to show that a robbery occurred at the time and place charged in the information, and that defendant was the one who committed the robbery.

In the fourth assignment of error, defendant asserts that in the argument to the jury the prosecuting attorney 'commented upon the assault to rape and mentioned the fact that the defendant could have been prosecuted for this offense.' This allegation in the motion does not prove itself, State v. Anderson, Mo.Sup., 254 S.W.2d 638, and the argument of counsel is not set forth in the record. It is therefore impossible to consider the alleged prejudicial effect, if any, of counsel's argument or the court's rulings concerning the argument. State v. Price, 348 Mo. 361, 153 S.W.2d 353; State v. Gerberding, Mo.Sup., 272 S.W.2d 230.

The fifth assignment...