The State v. Gordon

• Decision Date: 23 January 1900
• Citation: 55 S.W. 76,153 Mo. 576
• Parties: THE STATE v. GORDON, Appellant
• Court: Missouri Supreme Court

55 S.W. 76

153 Mo. 576

THE STATE v. GORDON, Appellant

Supreme Court of Missouri, Second Division

January 23, 1900

Appeal from St. Louis City Circuit Court. -- Hon. J. A. Talty Judge.

Reversed and remanded (with directions.)

Bishop & Rollins for appellant.

Edward C. Crow, Attorney-General, for the State.

(1) There was no exception at the time to the failure of the court to instruct on all the law of the case and therefore no advantage can be taken of that now. State v Cantlin, 118 Mo. 100. (2) The affidavits are by a girl and a man who simply swore they were present and saw the robbery but did not recognize either of the defendants as being one of those taking part in it. This was simply culminative evidence and is no ground for a new trial. State v. Ray, 53 Mo. 345.

OPINION

SHERWOOD, J.

Robbery in the first degree was the crime charged and established against defendant and Frank Sutter. Defendant alone appealed from the judgment rendered.

The instructions were such as have frequently received the sanction of this court and covered every point necessary for the information of the jury, and therefore there is no ground for complaint that the court did not fully instruct the jury. But in addition to that, defendant saved no exceptions to the action of the court because it failed to instruct, etc [State v. Cantlin, 118 Mo. 100, 23 S.W. 1091.]

Relative to the motion for a new trial and the affidavits in support thereof, it is sufficient to say that defendant's affidavit is not found among them, nor any excuse given for its absence. [State v. McLaughlin, 27 Mo. 111; State v. Campbell, 115 Mo. 391, 22 S.W. 367.]

A defect not noticed by counsel, appears in the record proper; it is this, the record in relation to the verdict recites: "We, the jury in the above entitled cause, find each of the defendants guilty of robbery in the first degree, as charged in the indictment, and assess the punishment at imprisonment in the penitentiary for five years."

Section 4228, Revised Statutes, 1889, requires that when there are several defendants jointly tried, the punishment of each in case of conviction must be assessed separately. This was not done in the case at bar. The court, therefore, should either have refused to receive the verdict and suggested its being put in proper form or failing in this should itself have assessed and declared the punishment (R. S. 1889, sec. 4230) which the jury in this...