The State v. Lewkowitz
| Decision Date | 06 July 1915 |
| Citation | 178 S.W. 58,265 Mo. 613 |
| Parties | THE STATE v. MAURICE LEWKOWITZ, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. Ralph S. Latshaw, Judge.
Affirmed.
Ben E Todd for appellant.
(1) The court erred in overruling defendant's application for a continuance. State v. Lewis, 74 Mo. 222. (2) The court erred in permitting the prosecuting attorney in his opening statement to make remarks which were prejudicial to the accused, not founded upon any admissible evidence, and in permitting the prosecuting attorney to make a statement which was argumentative in its nature. State v. Jackson, 95 Mo. 653; State v. Stubblefield, 157 Mo. 365; Glover v. Railroad, 129 Mo.App. 575. (3) The appellate court will carefully examine and scrutinze the record and refuse to permit a conviction to stand when it depends solely upon the testimony of the prosecutrix without very strong corroboration, and in such case the character of the prosecutrix and her antecedent history should be prime consideration. State v. Brown, 209 Mo. 413; State v. Goodale, 210 Mo. 290; State v Tevis, 234 Mo. 284; State v. Donnington, 246 Mo. 355. (4) The court erred in admitting evidence during the trial which was prejudicial to the defendant, upon the promise of the State to connect it up, which was not in fact connected up, nor withdrawn from the jury by instruction. State v. Thomas, 99 Mo. 257; State v Bateman, 198 Mo. 222. (5) The court erred in permitting juror Walton to act as an assistant prosecuting attorney in persistently interfering with and cross examining witnesses, after the examination direct, re-direct, cross and re-cross had been completed both by the State and the defense, which occurred ten times during the trial. A juror is not an advocate and has no right to usurp the functions of a prosecuting attorney. State v. Crawford, 96 Minn. 95. (6) The verdict was against the evidence and the weight thereof and a new trial should be granted for that reason. (7) The court erred in giving instruction number five for the State, there being no evidence on which to base an instruction on flight. State v. Evans, 138 Mo. 116. (8) The court erred in instruction five in that it did not require the jury to take into consideration "the other facts and circumstances in evidence in connection with the evidence of the alleged flight." The instruction was misleading and prejudicial in the form in which it was given, even if there had been evidence in the record upon which to base an instruction on flight. State v. Fairlamb, 121 Mo. 147; State v. Knowles, 185 Mo. 160; State v. Harris, 232 Mo. 319; State v. Kyles, 247 Mo. 650; State v. King, 78 Mo. 555. (9) The court erred in refusing instruction number six asked by the defendant. If it did not correctly declare the law, it was sufficient to call the attention of the court to the subject-matter. It was the duty of the court to modify the offered instruction and give a correct instruction as modified. This point does not have to be saved during the trial or mentioned in a motion for a new trial, although proper exception was saved in this case. This has always been the law of this State. State v. Matthews, 20 Mo. 55; State v. Jones, 61 Mo. 232; State v. Stonus, 62 Mo. 596; State v. Lowe, 93 Mo. 547; State v. Davis, 141 Mo. 522; State v. Adler, 146 Mo. 18; State v. Brinkley, 146 Mo. 37; State v. Clark, 147 Mo. 20; State v. Reed, 154 Mo. 122; State v. Fennon, 158 Mo. 149; State v. Moore, 160 Mo. 443; State v. Barton, 214 Mo. 316. All of which citations are found and followed in State v. Conway, 241 Mo. 286. And for the same reasons the court erred in refusing instruction seven asked by defendant. (10) The court erred in not instructing the jury on the whole case. The evidence as to the acts of Guerringer, Harrison and others in the absence of the defendant, may have been admissible under the res gestae rule, but should have been limited in an instruction such as was correctly given in State v. Anderson, 252 Mo. 88. Sec. 5231, R. S. 1909; State v. Nicholas, 222 Mo. 434; State v. Lackey, 230 Mo. 707; State v. Hoag, 232 Mo. 317; State v. Harris, 232 Mo. 323; State v. Fairlamb, 121 Mo. 147; State v. Conway, 241 Mo. 271. (11) The court should have defined and instructed on corroboration, and this is especially true in a rape case, where the conviction and sentence depend upon the evident of the prosecutrix, solely and alone, and the failure to so instruct was prejudicial error, for which a new trial should be granted. Sec. 5231, R. S. 1909; State v. Reeves, 97 Mo. 668; State v. McCaskey, 104 Mo. 644; State v. Brown, 209 Mo. 413; State v. Goodale, 210 Mo. 290; State v. Tevis, 230 Mo. 284; State v. Donnington, 246 Mo. 355; State v. Nicholas, 222 Mo. 434; State v. Lackey, 230 Mo. 707; State v. Hoag, 232 Mo. 308; State v. Harris, 232 Mo. 323; State v. Conway, 241 Mo. 271. (12) Where the record shows that there has been a failure to instruct upon a question which goes to the fundamental rights of the defendant and by such failure injustice may have been done, the question of non-direction may be raised for the first time in the Supreme Court. The jury should not be left to grope in the dark. Sec. 5231, R. S. 1909; State v. Conway, 241 Mo. 271; State v. Banks, 73 Mo. 592; State v. Palmer, 88 Mo. 568; State v. Henson, 106 Mo. 66; State v. Hutchinson, 111 Mo. 257; State v. Maguire, 113 Mo. 670; State v. Nelson, 118 Mo. 124; State v. Taylor, 118 Mo. 153; State v. Rufus, 149 Mo. 406.
John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
(1) Everything done or said by the parties to a conspiracy relating to its purposes during its existence is admissible in evidence against all or either of the conspirators, whether said or done in the presence of each or not. State v. Bobbitt, 228 Mo. 265; State v. Darling, 199 Mo. 201; State v. Copeman, 186 Mo. 120; State v. Pratt, 121 Mo. 572; State v. Walker, 98 Mo. 103. (2) Where the prosecuting attorney indulges in improper argument and on objection of defendant the court requests the jury to disregard the remarks and withdraws such remarks from the consideration of the jury and admonishes the prosecuting attorney to keep within the record, the defendant if not satisfied with the court's action, should ask the court to take further action and failing so to do acquiesces in the action of the court. State v. Wanna, 245 Mo. 563; State v. Raftery, 252 Mo. 83. (3) When the prosecuting attorney is rebuked by the court for improper remarks that will ordinarily be sufficient. State v. Dudley, 245 Mo. 188; State v. Terrell, 246 Mo. 333; State v. Kullman, 225 Mo. 632; State v. Barrington, 198 Mo. 91. (4) The motion for a new trial failing to specify any question of law upon which the court failed to instruct, the error, if any, on account thereof is not reviewable on appeal. State v. Conway, 241 Mo. 291; State v. Chissell, 245 Mo. 291; State v. Dockery, 243 Mo. 599. (5) A conspiracy may be shown by either direct and positive evidence or by circumstances from which it may be inferred. State v. Walker, 98 Mo. 95; State v. Sykes, 191 Mo. 78. (6) Declarations and conduct of prosecutrix in a prosecution for rape made or done a few moments after the commission of the offense and while she was still under the influence of the excitement produced by it are admissible as a part of the res gestae. McMurrin v. Rigby, 80 Iowa 322; Hoist v. State, 23 Tex.App. 1; Parker v. State, 67 Mo. 329; McMarth v. State, 55 Ga. 303; People v. Gage, 62 Mich. 271; Lambert v. People, 29 Mich. 71; People v. Brown, 53 Mich. 533; State v. Sykes, 191 Mo. 62. (7) Unless the motion for new trial or appellant's brief points out the particular testimony complained of the court will not go through the record and take upon itself the burden of discovering the illegal or incompetent testimony. State v. Holden, 202 Mo. 584; State v. Brown, 168 Mo. 449; State v. Whitsett, 232 Mo. 529. (8) If a defendant desires to have a matter of exception reviewed in the appellate court he must assign it as a ground in his motion for a new trial. State v. Dilts, 191 Mo. 672; State v. Scott, 214 Mo. 257. (9) The court will not go outside of the assignments of error as contained in the motion for a new trial, so far as matters of pure exception, not contained in the record proper, are concerned. State v. Foley, 247 Mo. 627; State v. Gilmore, 110 Mo. 1; State v. Headrick, 149 Mo. 404; State v. Harlan, 130 Mo. 394; State v. Alred, 115 Mo. 471; State v. Mieukin, 24 Mo.App. 462. (10) Where the verdict is manifestly for the right party, errors in the giving or refusing of instructions will not work a reversal. State v. Vickers, 209 Mo. 33; State v. McClure, 25 Mo. 338; State v. More, 61 Mo. 276; State v. Miller, 111 Mo. 542; State v. Privitt, 175 Mo. 230; State v. Taylor, 134 Mo. 152. (11) Corroboration of prosecutrix in a trial for rape is not essential to sustain a conviction. State v. Stackhouse, 242 Mo. 449; State v. Tevis, 234 Mo. 179; State v. Welch, 191 Mo. 179; State v. Dilts, 191 Mo. 665; State v. Day, 188 Mo. 359; State v. Marks, 140 Mo. 656; State v. Lovitt, 243 Mo. 510; State v. Pierce, 243 Mo. 524. (12) When appellant has failed to call the attention of the court to its failure to instruct on any phase of the case, the appellate court will not review the alleged error. State v. Horton, 247 Mo. 663; State v. Connors, 245 Mo. 482; State v. Chissell, 245 Mo. 555; State v. Greaves, 243 Mo. 551; State v. Dockery, 243 Mo. 599; State v. Gaultney, 242 Mo. 391.
Defendant, having been sentenced to ninety-nine years in the penitentiary on a conviction of rape, has appealed.
The offense was committed ...
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