[337] Dеfendant has appealed from a conviction and sentence for murder in the first degree) where the death penalty was imposed.
The offense was alleged to have been committed in the City of St. -Louis on December 20, 1954. An indictment charging appellant and one Sterling Quinn with murder in the first degree of one Abe Levitt was returned and filed on February 4, 1955. Thereafter, áp pellant was arraigned and entered a plea of not- guilty. Appellant was granted a severance and a trial was had before a jury. On April 13, 1955, -the jury returned a verdict of guilty of murder in the first degree- as- charged in: the indictment-, and fixed the punishment at death;- A motion for a new trial was filed and overruled, and appellant was; thereafter, on June 6, 1955, duly sentenced to suffer death by the administration of lethal gas.
On this appeal the appellant has not favored us with a brief and it is necessary for us- to examine the assignments of error in his motion for'anew trial. Supreme Court Bule 28.02; State v. Pierce (Mo. Sup.)
The'evidence shows that Abe Levitt was shot and killed by appellant while • aрpellant was attempting to perpetrate a robbery. The cause of'death was shown to be a “bullet wound in left chest.” Levitt owned and-operated a grocery store on the southwest-corner of the intersfection' Of Maffitt and Newstead avenues in the city of St. Louis. Appellant and Sterling Quinn entered the store about 7:30 p.m. on the eVening; ■ of -December 20, 1954. At that time Abe Levitt, Bobér-t Farmer and- his grandson Michael and a customer, Miss Fredia Tumpkins, were in the store. Appellant carried a 7.65 millimeter semi-automatic рistol of German make, which used .32 caliber Kemingtoil shells." Appellant-subsequently described the gun as a .32-auto-matic. Appellant advised Levitt that it was a holdup and demanded’ Levitt’s' money and ordered him to open the cash register. Levitt refused and an extended argument followed. Appellant finally backed Levitt against the basement door and shot him in the chest. Appellant’ and: Quinn then ran from the store and left in an automobile which had been parked in an álley near the store. Bobert Farmer recognized appellant by his voice and testified thÁt both' Quinn and appellant had been in the store on previous occasions. Quinn was not masked, blit appellant had a dirty pocket" handkerchief over the lower part of Jiis face:
'Appellant and- Quinn were subsequently arrested at the Sylvan Bea'eh ‘Airport and,’’on-'-D'ecember 26, 1954 appellant gave the police officéts- a written statement, in question "and answer form, concerning-the-"attempted robbery and murder. The statement was identified, offered and received in еvidence. Appellant said he had been residing with Qúinn at 5175 Kensington avenue and that they owned a gray' 1939 Buick automobile in partnership. About 3:00 p.m., on the afternoon of December 20, 1954, they planned a holdup, but had not located a place They - got lost while driving around looking for a suitable place, but finally drove by the Levitt store and appellant stated-that the other stores were closed. Quinn said “Let’s go in and get -’em.” The automobile was parked in an [338] alley and the
In a further written statement appellant said he told the--police that he had left the city after the shooting and had taken the gun -to his. father’s home at Wyatt, Missouri. He-gave certain officers permission to get the gun. The officers flew down and- recovered the gun and others and returned that afternoon. The guns.were then exhibited'to-appellant and he identified the gun he had used to -shoot-Mr>. Levitt.He said he knew “ it by the handles. ”
Other evidence on behalf of" the state tended to show that police, officers arrived at the Levitt store shortly after the attempted -robbery and shooting. Mr. Levitt was taken to a hospital, but -he- was dead on arrival and a few minutes thereafter his body was removed, to the city morgue, where an autopsy was performed and the bullet -removed from the body. In the store where the shooting occurred a .discharged .32 caliber Remington shell was found and the shell and the mentioned bullet were both delivered to a ballistic expert, together with the semi-automatic pistol recovered by the police and: identified by appellant as the gun he had used to shoot Mr. Levitt.- The expert fired a test shot from the gun and- recovered both the shell аnd the bullet and then compared, under a microscope the marking on the. two shells and the marking on the two bullets. He testified that both shells had been fired in and ejected from the same gun and that the two bullets had been fired from the same gun. He also testified that it was impossible for the rifling in two guns to be exactly the same.
Appellant testified in his own behalf at the trial,
as
follows:
Some of the thirty assignments in the motion for a new trial refer to matters which, if they occurred, are not shown by the record. We are bound by the record presented fоr review and, therefore, assignments which are based upon matters not shown by the record cannot be considered or determined. State v. O’Brien (Mo. Sup.),
.It is contended that the court erred in failing to sustain defendant’s motion for a judgment of acquittal аt the close of the State’s case, and erred in failing to sustain a similar motion at the close of the entire case, because “there was no evidence of wilful, deliberate, premeditated and with malice aforethought homicide.” The record shows that appellant’s counsel requested a judgment of acquittal at the close of the State’s case. The request was denied. Appellant thereafter testified in his own behalf and the request for a judgment of acquittal was not renewed at the close of all the evidence. The
motion tendered at the close of the State’s case was intended to prersent the issue of whether as a matter of law the evidence offered by the State was sufficient to support a conviction under the charge in the indictment. Supreme Court Rule 26.10. On the record presented, the motion was correctly ruled. Although, no motion for judgment of acquittal was offered at' the close of all the evidence, this failure would not foreclose the question as to whether thеre was any substantial evidence to support the verdict, if such question- had been properly raised in the motion for a new trial, but the matter has not been raised. State v. Ellis (Mo. Sup.),
Section 559.010 RSMo 1949, provides: “Every murder which shall
Error is assigned on the verdict as being “against the weight of the evidence.” The assignment fails to comply with Supreme Court Rule 27.20 and presents nothing for review. State v. McHarness (Mo. Sup.),
Error is assigned on the court “not. considering the facts of the case in determining the punishment” and “in not taking the responsibility of attempting to assess the punishment in the event of a plea of guilty, rаther than following the recommendation of the circuit attorney. ’ ’ These assignments are without support in the record and nothing is presented for review. The record does show cértain remarks by the court and counsel from which we infer that an effort may have been made to determine what punishment the court would be disposed to impose if appellant entered a plea of guilty, but the record is wholly inadequate for a determination of the questions presented.
- Error is assigned on the court “not disqualifying himself in. this сase when he expressed the opinion that there should be more death sentences in robbery cases” and “when he said ‘It looks like the Bublife BefendcMii-is trying to help these boys.’ ” No such statement or-expressions of opinión appear in this record and the assignments may not be-considered.
.'- .Error is assigned on the courts “prejudicial attitude to the defendant and defendant’s counsel throughout the case” and “in -harrassing and hurrying defendant’s counsel throughout the trial.” No-such matters appear from the record and nothing appears therein to sustain an inference or conclusion that any such matters transpired at' the trial.
Error is assigned on'the court “not sustaining defendant’s oral motion for a change of venue”, “in not permitting the defendant to file a change of venue”, and “in not granting to the defendant time in which to file a motion for a change of venue. ’ ’ On the record presented no offer to file an application for change of venue was made or refused. The record does show that on Thursday, April 7, 1955 the сause was assigned to Bivision No. 12 for trial. On Monday, April 11/ 1955, defendant appeared with the “Bublic Defender ”■ and was ¡granted a severance and, before the impaneling of the jury began, counsel orally moved the court “to disqualify himself from serving as trial judge of this case for reason of bias and prejudice of the court.” The oral motion was overruled and counsel stated it was 11:25. a.m: and asked time until 2:00- p.m. “to prepare a change of Venue.” Counsel said the court had stated that “what we have to do in this type оf cáse is to give death penalties. ’ ’ In reply the court indicated- that in chambers that morning (apparently while considering
■ Error-is-assigned on the court- “allowing evidence during the course of the trial of firearms taken from defendant’s-home, other than the one allegedly used-in the perpetration of the'crime.”- The matter complained -of appeared in one of appellant’s statements to the police, however, the statement was admitted without objection. The-statement contained the following questions- and answers: “Q. We are showing yоu three guns, one 12 gauge shotgun, one .25 caliber ¡automatic, and one .32 automatic, that the officers mentioned ¡above recovered from the homé of your father in Wyatt, Missouri, will ■you point to the one that you used in this shooting? - A. "Yes, sir.' It was this one.. Q. Are -you sure this is the gun? A. ¡Yes, -I know it by the handles and'that it is just the gun. ” There was other evidence concerning the 'two automatics ¿which were brought back' from 'appellant’s home in order to determine which had been used by appellant in the commission of the crime. This' evidence also came -into the record without objection. The alleged error in the admission, of the ■evidence has not been preserved for review. State v. Campbell (Mo. Sup.),
Error is assigned on the giving of‘Instructions -1 and 2 on-the ground that the word-“feloniously” is omitted in paragraph three (3) of Instruction-No. 1, in the definition of murder -in the first1 'dé.gree, also, in the second to the last paragraph of Instruction No¡ 11 dealing with murder in the first -degree and, also; in paragraph one (1) of Instruction No. 2 in submitting murder in the first ■-degree while attempting to perpetrate a robbery. It was unnecessary- to-.use the word “feloniously” in the instructions since the instructions stibmitted a finding of all facts necessary' to constitute murder: in the first degree and all facts necessary to constitute a felony and establish that in law the acts submitted were-feloniously done. State v. Hillebrand,
Error is further assigned on the giving of Instruction No..l, because in the last paragraph it used the words, you will assess his punishment at death, instead .of you may assess his punishment! as ■death. The instruction closed with these words: “If you return-!a 'Verdict of murder in the first degree, you will assеss his punishment 'at death, or by imprisonment in the penitentiary for and during, the remainder of his natural life.” The words used-closely follow- the ‘words of the statute, Sec. 559.030 RSMo 1949 which-fixes the punishment for miirder in the first degree aiid which provides ‘ ‘‡ •* p; and -persons convicted of murder in the first degree shall [342']- suffer •death, or be punished by'imprisonment in the penitentiary. during ■their natural lives * * The words used in the ¡instruction-con form to the statute and the instruction is not erroneous but is in proper form. , .
, Error is assigned on the giving,of Instruction'No. 1 because, .in fixing the time of the offense, it used the words ‘ ‘ at any time prior to the finding of the Indictment herein” and because it did not inform the jury as to the date of the finding or filing of the indictment. The assignment is without merit because the instruction recited: “The State of Missouri, by the indictment in this case, which was filed in this court on the 4th day of February 1955, charges * * *.” Further the date of the offense is submitted by Instruction No. 2 as “on or about the 20th day of December, 1954,” which was prior to the stated date of the filing of the indictment. Instructions must of course be read together and are sufficient if they properly present the law. .of the case when so considered. State v. Sapp,
Error is assigned on the giving of Instruction No. 3, in that in-paragraph two (2) the court “did not correctly define attempted rdbbery.” The assignment is'insufficient because it fails to point out ■in what respect the definition of attempted .robbery is erroneous. ■Supreme Court Bule 27.20; State v. Weston (Mo. Sup.),
Error is assigned on the giving of Instruction No. 2 on the theory that it “is outside the scope of the pleadings and allegations,” the indictment having charged murder in the first degree using the terms “feloniously, wilfully, deliberately, premeditatedly and with mal-ice. aforethought,” while Instruction No. 2 “instructs on the killing of a human being while attempting to perpetrаte a robbery.” There is no merit in the assignment. Section 559.010 RSMo- 1949i, ■provides that “every murder which shall * * * be committed in the perpetration or attempt to perpetrate any * * * robbery * * * shall be deemed murder in the first degree” and clearly.it is the approved practice in this state to charge murder in the first degree in the usual language and then be permitted to prove that the homicide occurred during a robbery or attempted robbery, although that fact was not charged, and for such proof, in view of Sectiоn 559.010, to support the giving of an instruction such as Instruction No. 2 wherein the court'instructed the jury, as follows: “Murder in the first degree is the' killing of a human being wilfully, feloniously, deliberately,
premeditatedly and with malice aforethought, or the killing of a human being while attempting to perpetrate a robbery.” The court further instructed the jury, in part, as follows: “ * * * that if you find and believe from the evidence in this case beyond a reasonable doubt that the defendant, Robert Burnett, either acting alone or jointly with another or others, in the, city of St. Louis, State of Missouri, on or about the 20th day of December, 1954, wilfully, deliberately, premeditatedly, and with malice aforethought, shot and wounded one, Abe Levitt, while attempting to perpetrate a robbery upon him, the said Abe Levitt, and if you further find # * *.” See State v. Bradley,
Error is assigned on the giving of Instruction No. 4, dealing with the presumption of innocence and reasonable doubt, and containing the words: “but a doubt to authorize an aquittal on that ground ought to bе a substantial doubt. ” It is argued that the word “substantial” has been perverted by common usage to mean a large amount or a great deal; and that it carried such meaning to the jury. There is no evidence in the record to support the claimed usage or meaning of the word “substantial.” We cannot take judicial notice that the word has any such meaning or usage, or that the jury so understood the term. The instruction is in approved form and not erroneous on the ground claimed. State v. Hutsel,
Error is assigned on the court’s aсtion in not instructing (1) on murder in the second degree; (2) on manslaughter; (3) on accident; and (4) on self-defense. These assignments present nothing for review since they fail to comply with Supreme Court Rule 27.20. An assignment which merely states that the court erred in giving a particular instruction, or in refusing to give a particular instruc
tion,- or iii refusing to instruct on a particular matter such as murder in -the second degree have been held insufficient in not stating 1 ‘ in detail- and with particularity” the specific grounds or causes of complaint in the motion for a new trial. State v. Harmon (Mo. Sup.),
The record shows that during the jury’s deliberation they sent to the’ court the following question: “Tour Honor: On the verdict of life imprisonment in the State Penitentiary, is- there any possibility of a parole at some future date? Foreman F. P. Leahy.” To' the above question the Court replied': “Members of the Jury: [344] -The Court has instructed-you on all the law in the case; henee I cannot answer your attached question. Wm. S. Connоr, Judge.”
Error is assigned on the court’s action (1) “in considering the question sent up by the jury relating to parole”; (2) “in taking as long as two and one-half (2y2) hours in attempting to answer the question”; and (3) in’attempting to answer the question with the two statements used, which in’ combination ‘ ‘ denote an affirmative answer to the question of parole.” Appellant further argues that “the jury intended to give the defendant life imprisonment but by considering the question of parole they were afraid that he would be later released as exemplified by the questiоn to The Court so that the verdict was not the intention of the jury because of the- error -of the Court.” "
The first of these assignments is insufficient under Supreme Court Rule 27.20- because it is too general. The use of the word “ consider
ing" as used specifies no ground of error and presents nothing for review. The second assignment has no support in the record, since there is nothing in the record to show any appreciable lapse of ■time in sending the' answer to the question. The recital in the unverified motion for a new trial concеrning the lapse of two and one-half hours may not be considered as it did not prove itself. State v. Brewer (Mo. Sup.),
The argument that the jury intended to give .the defendant life imprisonment and that the verdict returned was not the verdict intended “because of the error of the court" in forwarding the reply to the question, is not supported by the record. The allegation does not prove itself. Further, ho protest or objection was interposed to the action taken by the, court and there is no-support for such an assignment of error.
The last assignment- or comment of the motion for a new trial is that, “the verdict was such as to constitute cruel and unusual punishment аnd as such is against the Constitution of the State of Missouri and the Constitution of the United States.". The assignment is insufficient as the error, is not specified or ground stated, however, the punishment assessed by the jury in the verdict returned was within the provisions of Section 559.030 RSMo 1949, which in part provides that “persons convicted of murder in the first degree shall
We have further .examined the information and find it sufficient, the verdict was - in proper form and- responsive. Allocution was afforded, and judgment and sentence were duly pronounced.
Finding no errors in the record, the judgment should be affirmed.
It is so ordered.
.Date of execution.fixed for. Friday, August 24, 1956.