State v. LondeState v. Londe
I. Error is predicated on the refusal of a change of venue.
a. Appellant‘s petition, sworn to, for a change of venue from the Circuit Court of the City of St. Louis alleges that “he cannot have a fair and impartial trial” in the City of St. Louis or in the Eighth Judicial Circuit “because the inhabitants of the entire City of St. Louis” and said circuit “are so prejudiced against him, the defendant, that a fair and impartial trial cannot be had by him in said City” or said judicial circuit. The two supporting affidavits add nothing to the allegations in the petition. The State contends said petition and supporting affidavits state conclusions, not facts, and are insufficient. Consult:
b. On the merits: A short time prior to the trial a negro by the name of Lee L. Baker, a witness for the State, was assaulted in St. Louis County and shot twice. The newspapers of the City of St. Louis published articles covering the occurrence and articles referring to appellant well calculated to arouse public sentiment against appellant. Appellant‘s brief relies upon Meyers v. Cadwalader, 49 Fed. 32, 36; United States v. Ogden, 105 Fed. 371, 373, and United States v. Montgomery, 42 Fed. (2d) 254, 256, cases wherein publications, accessible to the jurors, during the progress of a trial were considered of such a nature as to have an influence upon the jury. They are not this case. Our holdings, mentioned infra, disclose the wide discretion vested in certain trial courts over this factual issue. We shall not detail the testimony. Appellant offered approximately nine witnesses on the issue. Practically all of the discussions referred to by the witnesses occurred subsequent to the assault upon witness Baker. Of the nine witnesses called by appellant, one had never heard the case discussed; another, a reporter for one of the papers, although he had heard it discussed, had formed no opinion; another, a reporter assigned to investigate the Baker assault, had heard the case discussed around Sikeston, Missouri,
II. Appellant devotes space to the qualification of individual veniremen.
a. A number had read some or the headlines or a portion of some of the newspaper articles concerning the assault upon witness Baker or articles referring to appellant, and stated they had formed an opinion from their reading. Appellant‘s broad contention that the court erred in not disqualifying for cause said veniremen merely on account of their impression or opinion finds no support in the existing Missouri law and is ruled against appellant. We have said that a venireman who has formed an impression or opinion, which will require testimony to remove, as to the guilt or innocence of an accused from rumors or newspaper reports, or both, is not disqualified for cause if his voir dire examination satisfactorily discloses he can and will render a verdict on the law and the evidence free from prejudice and bias. [
b. Upon objections interposed, the court refused to permit appellant to inquire of several veniremen who had thus formed an impression or opinion whether or not evidence would be required to remove that impression or opinion, and appellant‘s brief alleges error therefor on the ground appellant was entitled to make such inquiry preparatory to exercising his peremptory challenges. Appellant cites State v. McKeever, 339 Mo. 1066, 1077[5], 101 S. W. (2d) 22, 27[6]; State v. Goffstein, 342 Mo. 499, 509, 116 S. W. (2d) 65, 70[9], and the Wampler and Stanton cases, supra. The holding in the Wampler and Stanton cases is indicated above. The McKeever and Goffstein cases so far as here involved, contain general observations that, within reasonable limits, a liberal latitude is allowed on the voir dire examination for the purpose of challenge for favor. They do not rule the instant issue. We are mindful of State v. Mann (Banc), 83 Mo. 589, 595-599; State v. King, 174 Mo. 647, 655-659, 74 S. W. 627, 629, 630; and State v. Miller (Mo.), 207 S. W. 797, 798[1, 2]; but, on the instant record, rule the issue against the appellant; because:
1. The voir dire examination of said veniremen answered appellant‘s inquiry. Giving appellant‘s point its widest scope, it embraces the examination of veniremen Parrish, Orthwein, Adams and Schmidt. Parrish had formed “no opinion” and, of course, the point has no factual foundation with respect to said venireman. Orthwein stated that one reading an article naturally formed some opinion from reading it, but that such opinion as he had would not color his verdict. Orthwein and Schmidt each stated that he presumed appellant to be innocent until proved guilty. Adams and Schmidt severally stated that such opinion as each had was not necessarily a fixed opinion, and each, under questioning of the court, stated he could hear the evidence and the instructions of the court and base his verdict solely upon that evidence and solely upon that law. If so, such opinion as each of said veniremen had was not of a character that required testimony to remove it.
2. The ground assigned for the alleged error in appellant‘s motion for new trial was that each of said veniremen “should have legally been challenged and disqualified for cause by the court because of his opinion.” (This, so far as indicated, appears to have been appellant‘s theory pending the voir dire examination. Consult State v. McCord, 237 Mo. 242, 245(I), 140 S. W. 885, 886[2]; State v. Collins, 292 Mo. 102, 107 (I), 237 S. W. 516, 518[1].) The issue thus presented is not the issue presented in appellant‘s brief. As pointed out above, the assignment in appellant‘s motion for new trial is not sustainable. For the reason that the trial court was not called upon to review its action on the issue presented in appellant‘s brief,
3. Other reasons may exist. For instance. If the State peremptorily challenged the questioned veniremen and appellant was not required to exhaust any of his peremptory challenges in striking said veniremen from the jury list; was appellant prejudiced by the court‘s ruling, if error? There is no legal proof in the instant record showing that the State did not peremptorily challenge said veniremen or that appellant was required to exhaust any of his peremptory challenges in removing said veniremen from the trial jury. See remarks in State v. Davis, 237 Mo. 237, 240 (II), 140 S. W. 902, 904[3]; State v. Nevils, 330 Mo. 831, 839 (III), 51 S. W. (2d) 47, 50[3]; Parlon v. Wells, 322 Mo. 1001, 1012, 17 S. W. (2d) 528, 533[3].
The charge against appellant was that, on June 2, 1938, he did “. . . set and cause to be exploded a certain bomb, charged with explosives, the construction and make and contents of which said bomb is to these grand jurors unknown, in the entrance to a certain building located at No. 2600 Franklin Avenue, and did then and there and thereby cause a person, to-wit, Otis Gordon to be placed in danger of bodily injury . . .”
To establish this charge, which well might have been differently phrased, the State adduced testimony to the following effect:
The Howard Cleaners, garment cleaners, had a place of business at No. 2600 Franklin Avenue, St. Louis City—that is, at the southwest corner of Franklin and Jefferson Avenues. Twenty-six-hundred and 2602 Franklin Avenue are parts of the same building. The Acme Mutual Insurance Company had leased the second floor, or upstairs, of 2602 Franklin Avenue. Otis Gordon, an employee of said insurance company, was permitted to and, on said June 2nd, occupied the west portion of the front room upstairs as sleeping quarters. Appellant was the owner of a 1937 Buick sedan, black or blue-black in color with white side wall tires and license tag No. 625-643. He kept this automobile at the Donaldson Court garage, 6510 Enright Avenue. About 5:30 A. M. on June 2, 1938, appellant took his automobile from said garage. Lee L. Baker testified that he arrived at the northwest corner of the intersection of Franklin and Jefferson Avenues between 5:30 and 5:45 A. M. on June 2, 1938, on his way to work; that a black sedan with white side wall tires and occupied by two men in light colored suits, drove up and came to a sudden
Appellant offered no witness in his behalf.
III. Appellant questions the sufficiency of the evidence stating there was no substantial testimony establishing (a) the explosion of a bomb as distinguished from some other device charged with powder or other explosive and (b) the placing of Otis Gordon in danger of bodily injury as distinguished from the possibility that he might have been placed in danger of bodily injury.
a. Appellant insists that to determine what constitutes a “bomb” under the Missouri law we must refer to
b. At the time of the explosion Otis Gordon was asleep on the second floor of the building about two feet from the west and six feet from the north wall over what is known as 2602 Franklin Avenue. He testified, speaking of the upstairs, that 2600 and 2602 Franklin Avenue were connected; that there was a partition, a regular plastered wall, with connecting doorways; that the noise awakened him and he heard glass falling but did not get up to investigate; that he tried not to let things excite him, and that he thought there had
IV. Appellant‘s motion for new trial complains in separate paragraphs of the refusal of specified instructions offered by appellant alleging, in each instance, as ground therefor: “. . . for the reason that said instruction advises the jury of material matters of law necessary for the jury‘s information, and is an instruction pertinent to the issues and facts in the case to which the defendant is entitled under the law and the evidence in the case.” These assignments merely state the general conclusion that the specified instruction was a proper instruction and that the court erred in refusing it. They do not set forth in detail and with particularity the specified ground for error as required by
Appellant‘s complaint that reference to others than Otis Gordon being in the vicinity of the explosion led the jury to believe they might convict if they found that others had been put in danger of bodily injury irrespective of an affirmative finding on the factual issue of danger to Otis Gordon and prejudiced the jury against appellant, is not supported by the record. The court and the State‘s attorney specifically told the jury that a conviction was to be had only upon a finding that Otis Gordon was put in danger. This, in addition to the explicit directions in the instructions. We quote one instance: “The Court. Gentlemen of the Jury: You will consider, as to the point of endangering the life of someone, the question of the life or injury of one Otis Gordon and not someone else.” The testimony established that two taxi operators were in their cabs at the curb, were awakened by the noise of the explosion, the shaking of their cabs and the shattering of glass on the cabs and running boards; and that a woman was proceeding along the sidewalk at or just immediately prior to the time of the explosion. Reference to others being in the vicinity was within the res gestae; and cases wherein the prosecutor goes outside the evidence are not controlling. Further, the face of the record discloses that the statements objected to were in direct reply to arguments advanced on behalf of appellant, and we have ruled legitimate argument in reply is not improper. [State v. Reagan (Mo.), 108 S. W. (2d) 391, 397[18, 19]; State v. Smith (Mo.), 300 S. W. 1081, 1083[4]; State v. Lynn (Mo.), 23 S. W. (2d) 139, 141 [1-4].] We take the most specific instance of record. “Mr. Hough asks you to consider Mr. Londe as a human being. Did he consider anybody when he threw that bomb, gentlemen? Did he consider the cleaning company? Leave that aside. Did he consider human beings? Did he consider those colored people in that neighborhood? Did he consider Otis Gordon and the taxicab drivers? Did he consider that woman there?” This was to rebut the argument on behalf of appellant; and a jury of reasonable men would so construe it, especially is this true with the court and the attorneys informing them a finding that Otis Gordon was put in danger was essential to a conviction.
Appellant‘s remaining complaint attacks a statement made in conclusion: “St. Louis is a good community in which to live and I say to you the eyes of this community, not only of this community, but of the State of Missouri and farther away than that, maybe the whole country, are on you tonight.” The Court sustained appellant‘s objection and directed the jury to disregard the statement but refused to declare a mistrial or reprimand counsel. Speaking to a
Appellant‘s brief does not question the record proper and our review thereof has not disclosed reversible error. This opinion was written and passed out to the Judges and Commissioners several days ago. Appellant has this day filed a motion to affirm the judgment. For the reasons stated in the opinion, and also on said motion, the judgment is affirmed. Cooley and Wesihues, CC., concur.
PER CURIAM: The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.