On Nоvember 20, 1978, a Laclede County jury returned a verdict finding defendant guilty of second degree murder in the killing of his wife. § 565.004 RSMo 1978 (formerly § 559.020) and § 565.008 RSMo 1978. He was sentenced to imprisonment for a term of 18 years. On the same date the court, intеr alia, made the following docket entry: “Defendant allowed 30 additional days to file Motion for New Trial
for a total of 45 days to file Motion For New Trial.”
(Emphasis supplied). This was error, as then Rule 27.20(a), V.A.M.R., in part, stated: “. . . Such motion [for a new trial] shall be filed . . . within ten days after the return of the verdict: Provided, on application of defendant, the court may extend the time for filing such motion for an additional period of thirty (30) days: Provided further, the court shall have no power to mаke another or further extension of the time for filing said motion.” In computing the maximum allowable time under Rule 27.20(a), i. e., 40 days, for filing a motion for a new trial in accordance with former Rule 31.01, in force at the time herein concerned, we ascertain the last day to be reckoned was December 30,1978. An appellate court takes judicial notice of the calendar and the date on which a particular dаy of the week falls.
Hagen
v.
Perryville Bd. of Aldermen,
The evidence disclosed that after a day of revelry, which inсluded the copious consumption of beer by defendant and his wife, defendant appeared at a neighbor’s house near 9 p. m. October 5, 1977. He was covered with blood, crying hysterically with the announcemеnt that he had just shot his wife. 1 Although defendant at trial disclaimed any recollection of the events, the authorities, who were summoned because of the shooting, testified that upon arrival at defendant’s house defеndant was variously muttering that he had killed his wife, that he merely intended to hit her with the gun “to teach her a lesson”, and that she “grabbed” or “deflected” the gun causing it to discharge. The fatal shot, fired at a close range, hаd blown away the top portion of the wife’s skull.
Numerous photographs of the wife’s body were taken at the situs of the charged crime. Defendant’s “Motion in Limine to Estop the State from Offering Certain Photographs оf the Deceased” was sustained except as to State’s Exhibit No. 1. The prosecutor was directed by the court to show the picture to the jury “as a group [while] standing three feet back from the jury railing.” Exhibit No. 1, displаyed collectively to the jury as instructed by the court, shows the dead wife sitting sidewise in a chair at the kitchen table with her right arm wrapped around the back of the *236 chair and her left arm in a relaxed position bеtween her jean-clad legs. It also depicts an upright beer can, a bowl, a sandwich and a package of cigarettes atop the table.
In his jury-argument, defendant’s counsel alluded to the fact thаt no autopsy had been undertaken to determine the true cause of death and to defendant's contentions to the investigating officers that the gun had discharged as the result of a scuffle between defendаnt and decedent. The state prosecutor thereafter, in his concluding argument, displayed Exhibit No. 1 to the jury, accompanied with the assertion that an autopsy had obviously been unnecessary to prove the cause of death and that the pictorial evidence belied the claim that a scuffle had preceded the shooting. Defendant’s lawyer objected to showing the jury the picture “all this much.” The trial court, out of the jury’s hearing, admonished the prosecuting attorney “not to exhibit [the picture] anymore”, sustained the defense objection but denied defendant a mistrial.
In point relied on I in defendant’s brief on apрeal, he asserts the trial court erred in permitting the state, in the first place, to display Exhibit No. 1 to the jury because it was “gruesome, inflammatory and prejudicial” and was “neither necessary nor material in that it offered no proof of any issue in the case.” Point relied on II claims the court erred in failing to declare a mistrial when the prosecutor, in final argument, again displayed Exhibit No. 1 to the jury because its continued exhibition “served to inflame and prejudice the jury against the Defendant.” As written, these points relied on violate the mandatory requirements of Rule 30.06(d), V.A.M.R. [1975-1979 Supp.], in that they do not undertake to state “wherein and why” Exhibit No. 1 was “gruеsome, inflammatory and prejudicial”, was “neither necessary nor material” or that “it offered no proof of any issue.” Likewise, we are left to guess “wherein and why” defendant is claiming the display of the exhibit to thе jury in final argument “served to inflame and prejudice the jury” if, in fact, it did.
State v. Davis,
Although points I and II were not properly presented and preserved for our review, we note, as to point I, that a trial court has wide discretion to admit vel non the photograph of a dead body as an exhibit.
State v. Jones,
As the second paragraph of this opinion narrates, defendant recounted to the investigating officials that his wife, by physical action, undertook to grab or deflect the gun he intended only as a chastening bludgeon and that, as a result of his wife’s defensive activities, the weapon discharged accidentally. Exhibit No. 1 depicts the wife seated in a chair with her right arm around the back thereof in an apparent relaxed position, her left arm in a reposing position *237 on the seat of the chair between her legs. She was seated near a table whose surface contents seem undisturbed by any evident exertions to seize or turn aside a weapon being employed for nonfatal corporal punishment. The exhibit not only depicts the wife’s apparent lackadaisical indifference to any threats of physical harm but tends to negate any activities on her part which would have caused an accidental discharge of the weapon. The photograph lends corroboration tо material matters in issue and would serve to aid the jury in better understanding the oral testimony regarding the facts and circumstances surrounding the event. We find no error, plain or otherwise, in the admission into evidence of Exhibit No. 1.
In considering the substance of defendant’s point relied on II, we have recast in the third paragraph of this opinion the basis for defendant’s claim of error anent the prosecutor’s display of Exhibit No. 1 to the jury in his concluding argument. Without repeating what has already been said, it is to be recalled that prosecutors are permitted a wide berth in replying to defense arguments designed to discredit the state’s casе in the eyes of the jury.
State v. Stamps,
In toto, defendant’s last point relied on III states: “The Court erred in giving instruction number 10 which stated that voluntary intoxication is not a defense in a commission of any crime and that the giving of said instruction was prejudicial so аs to improperly consider the issue of intoxication.” This point nowhere attempts to demonstrate “wherein and why” it was error to give the instruction or, if it was error, “wherein and why” the giving thereof was prejudicial. The point is too general to present anything for appellate review.
State v. Pauley,
We have examined the information, verdict, judgment and sentence and find them sufficient. Rule 30.20, V.A.M.R. The judgment is affirmed.
Notes
. An analysis of defendant’s blood and that of his deceased wife disclosed defendant had a blood alcohol level of eighteen-hundredths of one percent and that the dead wife’s level was nineteen-hundredths of one percent. Under § 577.030(3), RSMo 1978, this was prima facie evidence that both were intoxicated.