State v. KanerState v. Kaner
The prosecuting witness, Albert Weiss, had conducted a jewelry business for a number of years, and on April 25, 1933, was engaged in such business at 4417 South Kingshighway, St. Louis City, Missouri. Weiss testified that appellant, whom he identified at the trial, first entered his jewelry store between nine-thirty and nine forty-five a. m. on April 25, 1933, and bargained with him concerning the purchase of a ring to be set with a small diamond. After agreeing upon a price, appellant stated he would make a down payment of $5 that evening and pay so much per week until the рurchase
Appеllant denied any connection with the crime and offered witnesses to establish an alibi. This evidence, if believed by the jury, justified an acquittal.
Appellant contends the indictment fails to charge an offense. The indictment, in so far as matеrial, alleged that the defendants “. . . in and upon one Albert Weiss feloniously did make an assault; and the said Albert Weiss in fear of immediate injury to his person, then and there feloniously did put,” etc. Appellant (relying on the rule that nothing may be left tо intendment or implication in indictments and informations, citing State v. Anderson, 298 Mo. 382, 390, 250 S. W. 68, 70(1) and other cases) contends the effect of “; and” was to make Albert Weiss the subject of all further action alleged in the indictment; that is, that Albert Weiss feloniously did put himself in fear of immеdiate injury to his person, etc. The assignment is hypercritical, technical and without substantial merit. Under the old common law many offenses subjected the prisoner to the death penalty, and courts, out of considerations of humanity, required a definiteness, precision and completeness of statement that would defy the ingenuity of astute counsel that defendants be not punished beyond their just deserts. The reason for
Appellant assigns as error the court‘s rеfusal to sustain his demurrer at the close of the case because, he contends, the overwhelming weight of the evidence established his alibi. Weiss’ identification of appellant was positive and was based upon his personal observation of appellant‘s looks, his walk, complexion, size, height, voice, etc. Had it been less positive, it still would have been sufficiently substantial to submit the issue to the jury (whose duty it was to determine its weight and value), and sustain the verdict of guilty [State v. Blackmore, 327 Mo. 708, 715(1), 38 S. W. (2d) 32, 34(1), and cases cited], which settled the conflict between the State‘s and appellant‘s evidence on the issue [State v. Johnson (Mo.), 55 S. W. (2d) 967, 968(2); State v. Willis (Mo.), 37 S. W. (2d) 407, 408(3); State v. Simmons, 332 Mo. 247, 252(1), 58 S. W. (2d) 302(2)]. State v. Copeland, 335 Mo. 140, 148(2), 71 S. W. (2d) 746, 751(7) states: “The trial court alone is empowered to set аside a verdict on the ground that it is against the weight of the evidence.” [See, also, State v. Evans, 334 Mo. 914, 918(1), 68 S. W. (2d) 705, 707(1); State v. Miller (Mo.), 12 S. W. (2d) 40, 42(7); State v. Simmons, supra.]
Appellant‘s motion for new trial attacks each of the several given instructions in separate paragraphs with like allegations; towit: “Because the court erred in giving to the jury instruction No. [setting forth the number], said instruction being misleading and a misstatement of the law, and a misapplication of the law as applied to the facts and evidence, and assumes the guilt of the defendant, and further, is based upon facts not in evidence, is argumentative and inconsistent with all instructions given by the court.” The assignment does not point out wherein said instruction (as alleged in the assignment) is misleading, or misstates or misapрlies the law as applied to the evidence, or assumes appellant‘s guilt, or is based upon facts not in evidence, or is argumentative or in conflict with any other given instruction, and, if so, which instruction and wherein the conflict exists. Viеwing such assignments in a favorable light to appellant, the assembling of a number of general assignments against an instruction within a single paragraph or sentence is not a compliance with the statutory requirement that motions for new trial in criminal cases “must set forth in detail and with particularity in separate numbered paragraphs, the specific grounds or causes therefor” [
Counsel representing appellant in this court did not represent him in the trial court; and contend, in their brief, that instructions 2 and 3 ignore appellant‘s alibi defense, and conflict with Instruction 4. The assignment is further developed: The indictment charged the offense was committed on April 25, 1933. The evidence established its commission on the morning of said date. Appellant‘s evidence establishing an alibi was directed to proving his presence
Other assignments in the motion for new trial are not mentioned in appellant‘s brief. We have examined them, and find them without merit. One complains of a statement attributed to the prosecutor in his argument: “If the defendant‘s alibi was honest, why has he сontinued to hide it up until the trial?” However, no reason is assigned for its impropriety. From the record the prosecutor was answering the argument of counsel for appellant that “this
Finding no error in the record proper, the judgment is affirmed. Cooley and Westhues, CC., concur.
Per Curiam:—The foregoing opinion by Bohling, C., is adopted as the opinion of the court. All the judges concur.