*1 Vоl. pulsion of ber from his control husband or freedom with compulsion in presumption of essential element of the offense. The upon a the the burden places such case is rule of evidence. proof freely and of her volition. to show that the wife acted own prove Absent her to presumption, burden would be being it is collateral to the Therefore, coercion. a rule constituting issue, main the crime. essential facts When the offered the State the defendant ob- instructions were jected ground number, to each them that such instruc- case, properly tions not law of did were and declare the confusing, law of case. are “involved, That instructions mis- ambiguous leading, and true assume as controverted faсts.” The perfectly good objections. They instructions were those They did declare the law the case. were correct as far right presume had a went. The that the de- objections fendant mentioned all urge he desired to the instruction. accordingly Walker, affirmed. J., concurs; P.
Blcrir, J., except all concurs result and what is said as to wife’s non-liability presenсe for crimes committed of husband. v. Herbert McCullough, Appellant.
The State Two, Division December Robbery. did 1. one R. charging INDICTMENT: An indictment that defendant Claxton, “unlawfully feloniously assault, and make an and Paige touring automobile, $450, one value and $16.10 and money States, lawful value of $16.10, United of the value the total $466.10, money against personal property Claxton, of said R. W. person Claxton, from the and there then and there injury the will of the said R. W. and then person force and Claxton, violence to the of said R. W. by putting the said R. W. Claxton in fear of an immediate person, unlawfully feloniously steal, rob, take and carry away,” etc., charge in form and substance a sufficient first- degree robbery. Testimony ROBBERY: Substantial Evidence: Demurrer. of Claxton 2: night jumped upon running that men two board his auto- mobile; placed gun that one of them at his neck and ordered him car, threatening continue to drive the to blow his brains out if refused proceed; to two and the ride of witness; that after the distance, witness had driven ear a short got car, seating into the the defendant himself beside the seat, holding neck; other in the during rear twenty pockets blocks defendant took from the $16.10 then two ordered him out of car took it them; and the of the officer who arrested defendant guilty robbery; admitted he was positive and the identification of money defendant as the man who entered Claxton’s car and took MoCullougi-i. 1986] him, sufficient to sustain a verdict of of the crime of first-degree' robbery, arid the demurrer to the evidеnce be overruled. *2 3. Exceptions. INSTRUCTIONS: Given given without Instructions objection
the State exception made or saved are not for review on appeal. But, nevertheless, the given assigned instructions so in the motion for necessary guides trial declared all the law jury arriving proper at a verdict in the case. 4. -: trial defense unless guidance On all Law of Case: Mattersi of Defense: Admission. The give court is not relating an instruction to matters of requested so to do or such is instruction jury returning their verdict. Where a officer testified for the State charged, defendant admitted the request defendant made of the preliminary no hearing admissibility for a on the alleged admission, testimony, and made no to the and made request no that the jury they court instruct that if found the admission voluntary was failure not free and consideration, should not take it into give, motion, court to instruction, of its own such an error. Corpus Juris-Cyc. Law, J., References: p. Criminal 16 C. Section 8; 20; p. 1056, 14; n. Section 2498, p. n. Section n. Section 2500, p. 1058, 37; J., 3586, p. 247, Robbery, n. Cyc., 17 C. n. 82. 34 38; p. 1802, p. 1808, 73; p. 1810, n. n. n. 90.
Appeal from Jackson Johnson, Circuit Court.—Hon. Nelson E. Judge.
Affirmed.
North Gentry, T. As- Attorney-General, Potter, and James A. Attorney-General, sistant respondent.
(1) The court did failing jury not err in instruct question voluntary and involuntary and admissions. statements Sec. require, E. S. 1919. and never The statute does not require, intended the court to instruct collateral 107; McNamara, 100 Mo. State v. Lac- incidental matters. State v. 718; 222 can- key, Nicholas, 230 Mo. v. 425. Defendant State Mo. complain jury upon a collateral not of error to instruct the Barnett, requested. v. matter when such instruction was not State 658; 555; McCarver, 194 Mo. Bond, v. 191 State v. 203 Mo. State Mo. 642; 144 Mo. 128; Albright, v. 717; "West, 202 Mo. State State v. (a) Ill; 171 591. Cantlin, Yinso, v. Mo. 118 Mo. State State v. the defendant was offered Officer Thurman When request be ex- that the object testimony, nor did relating alleged to the the evidence the court hear cluded and that always of a defendant An admission of the defendant. admissions admitted the testi- the court voluntary, and to be presumed 165; Arm- State v. Hayes, v. mony State of Thurman. 44 316. SUPREME Yol.
strong, 559; 203 Mo. State v. Thomas, Mo. 210.
did not directly testify alleged that the admission extracted him any through reason any threats or per- or force fear of injury. sonal v. (2) State Hayes, S. 165. W. Where there any jury. the case is one Jackson, State 24; Hascall, (3) v. State 284 Mo. v. 616. The indictment proper case was due and form. v. Strada, 34; Reich, (4) State' v. The defend- object except given by ant failed to propriety open hence such instructions is not now to review. However, given by the instructions court were in the usual approved Cardwell, Tipton, form. S. W. State v. Brown, Ritter, 270 W. S. Williams, Boes, Jackson, *3 County
RAILEY, May 29, grand of C. On the Jackson whiсh, county indictment, returned into circuit court said an the of omitting parts, formal reads as follows: jurors grand Missouri, duly from
“The the State of summoned for body County Jackson, being duly impaneled, of sworn the said of inquire county, oaths charged and within and said their McCullough, name present charge whose Christian and that Herbert day unknown, May, of grand jurors in full on the 16th is to the said County in and 1925, at of and Stаte the Jackson of grand full is the said Claxton, R. name in one W. whose Christian feloniously jurors unlawfully make and unknown, did then and there of four Paige touring automobile, of the value assault, an and one money good of dollars, and lawful hundred and and fifty $16.10 of $16.10, aggregate value States, of value the United Claxton, R. W. $466.10, money property of the personal and Claxton, and will the said R. person against and R. W. person the said and and violence to there force then putting said R. Claxton Claxton, there and then feloniously unlawfully and person, injury to his fear of an immediate dignity peace carry away, rob, steal, take ’’ the State. was tried guilty, plea a arraigned, entered Defendant following returned: verdict July 22, jury, and on before guilty McCullough, Herbert find the defеndant “We, jury, and assess charged indictment degree robbery in the first ’’ penitentiary. years in the five at punishment his motion for his filed time, in due Thereafter, rendered, sen- granted, overruled, allocution McCullough. 1926} pronounced conformity
tence appeal the verdict and an al- lowed defendant court.
He here brief, respondent counsel have made a full and fair statement of the facts as record, disclosed adopt and we the same as follows:
“The very evidence in the case short and be summarized as follows: prosecuting witness, Claxton,
“The R. "W. lived in City, Kansas Kansas, but City, worked Frisco Railroad in Kansas Mis- evening Máy Paige souri. On the 16, 1925, Mr. Claxton drove his City, intending car into Kansas visit a near friend the intersection Lydia Tenth Street and Avenuе. had "Whenhe reached his desti- parking nation and curb, was in the act car at his two men jumped running right car, board side one of gun them placed a at the neck of witness and, either he the other man, car, to continue to ordered witness drive the at the same time threatening applying epithet him and blow his brains out if The witness car forward and proceed. refusеd to started distance, got driving car, the two robbers short one of them getting occupying the front seat with the and the other holding neck the rear seat and of the witness. The positively the defendant as the one who rode in the identified During twenty for a distance of some blocks. front seat with him the sum of sixteen dollars ten cents this ride defendant took arriving Upon at or neаr Eleventh pockets from the the witness. out of Agnes the two robbers ordered the witness Avenue, Street point, taking the with them. him at that automobile the ear and left got several looks at During the ride the witness point him. At where the robbers or- who was in the seat beside *4 ear, stopped get of the car the witness to out dered the witness ‘choker’ flood the carburetor doing pulled the so before so of the car. This act to start the robbers it difficult for make minutes, dur- starting car some five or delayed the witness six with the rob- engaged in a conversation ing the witness which time get light by was enabled to an arc near aid of bers, and with robbery re- Soon after the defendant. good view of description of the gave a minute police to the рorted same coat, necktie, shirt, description cap, including a defendant, day later the defendant was ar- or two A overcoat. trousers City by returned to Kansas Kansas, was Topeka, rested City three or to Kansas some Upon his return police. City Kansas show-up placed was robbery, days four by prosecuting witness, identified positively room, where him. The robbed who men Claxton, as one Couet Missouri, Vol. 316. T.erm, prosecuting witness was as positive direct and possibly as it could have been. “The State also'offered as a witness Officer B. Thurman, H. who trip Topeka to return defendant, and this officer tes- tified that after defendant’s City return to Kansas he admitted that he was robbing the witness Claxton. “The in his own behalf to the effect that his tеstified home was in City Omaha, Nebraska; that he was a barber trade, and that work in his line was slack in Omaha, Nebraska, and lie came City to Kansas on day the 17th May, (the day after the robbery), purpose working at his trade. He testified nothing knew about the of Mr. Claxton. On cross- examination he admitted that he had served a term in the Nebraska reformatory under Cehler, the name оf under a conviction for the selling mortgaged crime of property; that he had been out of the reformatory about prior three months City to his visit to Kansas day on the 17th May,
“On re-direct examination, the defendant stated that after he was brought City back day to Kansas May, about the 20th he was taken to the office of Toyne, Officer chief bureau, of the motor-theft where questioned he was concerning a number of robberies the witness Thurman and Ely, officers Stewart and and Clerk Moore. He stated these him presented containing officers a book long list of crimes City, committed Kansas and insisted that the defendant had committed a number of these crimes. Defendant further testi- fied that he crimes, whereupon denied the commission of said officer Ely every told him he, Ely, going crime he denied him; turn Officer Stewart loose on that Officer Stewart had in his piece hand at the time a of rubber hose and struck the witness with jack the rubber hose. He also testified there was a black Ely pocket; desk of Officer and that Clerk Moore had a in his questioning threatening, that after an hour or more de- finally all fendant said thаt he committed the crimes mentioned book. gave instructions on its own Defendant “The court motion. sis given by any nor object did not did he re- quest any instruction on behalf of the defendant or the court’s instruction.” point not covered important deemed will considered matters as be
Such other later. trial, appellant con- of motion paragraph three
I. fаcts sufficient constitute does not state “indictment tends that the *5 speaks out full for itself. It is set an offense.” Indictment. requirements of Section Revised with mee^s repeated decisions of is suf- tested and, Statutes MoCullough. 47 v. 1692] Dickens, both form and substance. v. 285 S. W. ficient [State 447; Wallace, 665; l. c. v. W. l. c. S. Strada, Brazel, S. W. State v. Roder v. man, Yates, Affronti, Huffman, 431-435; Eddy, Flynn, State State 214-224, 167 S. W. 516.]
II. In motion for new trial it is insisted that the court should a demurrer the evidence at the conclusion have sustained produced of the case. The State Demurrer. as to defendant’s as heretofore shown. The fore- going contention without merit and overruled. paragraph
III. In motion court is charged with “in giving, exception, over defendant’s instruc- one, three, five, two, four, tions numbered six and Instructiоns. exceptions in- seven.” The bill of discloses that these given part on exception structions were without although attorney. say, passing, appellant or We that given objection, and no error is at- said instructions were tempted pointed out record account of the "the they instructions, find that are same, carefully read the we have rulings court, and declared all the law properly of this sustained pass that was to enable merits of the case. asked, motion, above new
IT. one of the paragraph the effect to instruct the “because the erred statements if believed from the evidence they found and having been in evidence defendant, mentioned voluntary arrest, were free Instruction: All Law оf Case: not take terms), should (and defining said Admission. in decid- into consideration thereof such evidence ’’ defendant. ing guilt or innocence State, of its find that the transcript we Turning to the Thurman, a member Mr. B. H. chief, produced ease had talked with knew defendant force, who testified objection: occurred, without him. following then robbery? A. him about Claxton a' talk you had “Q. Have I did. rоbbery? A. you about any statement “Q. he make Did it.” admitted He *6 Missouri, Vol.
As shown, heretofore Mr. R. W. Claxton clearly identified de- fendant as one of the men who robbed him. The State thus made plain out a case explanation by defendant which needed no instruction or otherwise. When Thurman if asked, defendant to him robbery, statement about the Claxton counsel for appellant request made no preliminary for a hearing on the admis- sibility admission; alleged of he made no to the above testimony of policeman, request made no for instruction relating to complained the matters of in above motion. Section requires Revised 1919, only Statutes court to instruct whether asked not on part those matters which are considered State’s rеspect case. In matter, to a collateral like the one under here, consideration defense, cpürt which relates to defendant’s requested to instruct with reference thereto unless so appellant do such an instruction is in- returning formation of in contemplated by verdict, their supra. opinion respect We are of in that, matter, to abоve the settled rulings of contention, this are to appellant’s court adverse based on may the facts of In it connection, appropriate this case. this be held, say, that we have where entitled to converse request instruction, offer or such an he must failing error in give before he can convict the court same. We have question the de- that, likewise held of alibi relates to case, fendant’s court defense is no of the State’s cannot charged subject be in instruct on this unless re- quested sustaining pronouncement, so to As we do. the above call following Cardwell, attention to the cases: State v. White, Brazel, State v. Daugherty, Carr, Mo. Lackey, Parker, 718-721; Bond, closing argument of Appellant complains
V. his motion case, attorney jury. this before the the State’s cross-examination admitted that and on testified selling mortgaged Nebraska convicted had been Argument to belonged aunt. He also admitted property Jury. Reformatory for to the State four sentenced Thur- Having Policeman admitted to and served out his term. years, case, in this we hold that prosecuting man that hе robbed making the state- the evidence attorney was within prosecuting saw the witnesses The court motion. complained above ments respective argu- heard the trial; testify, heard them at the produced position than the is in much better and, hence, of counsel ments 1926} v. StaNdifer.
appellate court to injustice determine whether had been done the de- fendant complained the remarks argument.
true, brought that cases here, are overstepped where counsel have .propriety say to such an extent that can rules we as a matter law, record, committed, the face of the reversible error has been granting necessitates the a new trial. On the facts of case, however, in ovеrruling committed no error the above *7 assignment.
VI. The trial rejec- court committed no error in the admission or tion of during progress gave of the trial. instructions,
correct and all that were in upon have passing the merits the case. The defendant only guilty upon evidence, found substantial clear guilt and convincing proof degree. as to the first impartial unprejudiced He was accorded a fair and trial before an punishment mild for his crime and must jury and received suffer consequences therefor. accordingly Higbee, G., affirmed. The below is concurs. foregoing adopted opinion Railey, C., PER CURIAM:—The opinion judges the court. concur. All Appellant. The Frank Standifer, Two, Division December Although evi- 1. APPELLATE PRACTICE: Insufficient Evidence. con- dencе for the State and the evidence for in direct
flict, ground the verdict of cannot of insufficient be disturbed on evidence, questionably positive, points un- if the evidence for the State is charged. defendant’s Assignment: ofAct 2. INSTRUCTIONS: Motion for New Trial: General July 9, Section committed since when 1925. In the trial for an offense effective, page Laws became 4079 of declаres Act of and with set forth in detail that the motion for a new “must paragraphs, specific grounds or separate particularity causes numbered shown, court, ex- empowered therefor,” cause “to and filing days period the date motion for a of ten such tend the time for only paragraph verdict,” a new trial whose a motion for return the in the of the аssigning giving “the court erred was that of the instructions State,’’ 1, 2, 3, 4, giving 5 and Instructions Nos. assign- requirements amended meet the 2” Instruction appellant’s “the court erred brief ment cannot be legislative purpose of the amendment manifest considered. particular relied errors to be trial court to call the attention of was to language appellate is too and its the case reaches when permit construction. specific other clear to Mo.—4.