126 Mo. 554 | Mo. | 1895
— Various errors are assigned as grounds for reversing the judgment rendered.
I. The refusal of the trial court to issue a commission to take depositions in the state of Illinois, and to continue the cause for a few days for that purpose, can not be noticed because not set forth in the motion for a new trial. 7
II. Relative to the alleged improper conduct of the prosecuting attorney in pointing with his pencil to defendant Haight, there are three answers:
First. That other witnesses had identified Haight, before and after the witness Stonum’s attention was said to be thus directed to Haight by the pencil-pointing. Second. The supposed fact above mentioned is not shown by the bill of exceptions to have occurred. The mere statement in the bill of exceptions that “defendant objects to the question and answer for the reason that witness was not able to point out the defendant Haight, until Mr. Cross indicated where he sat with his pencil,” is no more evidence of the existence of such a fact than if it had been inserted in the motion for a new
III. In regard to the remark made by the prosecuting attorney that the defendant Isaac Levy, alias “Jewey Mike,” was a “Jew,” to which said defendant excepted, it is sufficient to observe that the point is not preserved in the motion for a new trial; because, although that motion charges the prosecuting attorney with misconduct during the trial, yet the point mentioned is not specified, but, on the contrary, when the motion mentions misconduct, it refers to the affidavits; but they only refer to the conduct of the attorney in pointing with his pencil, and to nothing else; so that the point in question was-not saved.
IY. There is no complaint made of the instructions, and if there were, it would be without foundation, since they state the law fairly and in a manner very favorable to the defendant.
Y. The testimony shows a very clear case of robbery, aud, though there was some testimony countervailing that on the part of the state, yet this was a question solely for the consideration and determination of the triers of the facts.
It is insisted, however, that, in the case of State v. Jackson, 112 Mo. 585, this court decided that the crime of which Trice was the victim, was one under section 3826, Revised Statutes, 1889, and not robbery. But on turning to that case it will at once be seen that the facts therein were not so fully developed as in the case at bar. Here, no doubt, false pretenses were used as matter of inducement to get Trice to draw his money
VI. Finally, the claim is made that the punishment is excessive, and indicates prejudice, passion, etc., but we do not see any such indications in the record. There is much reason to believe that the defendants are habitual criminals, whose prey is mankind; if so, the jury very properly granted them what is tantamount to a life estate in the penitentiary. Therefore, judgment affirmed.
