271 Mo. 88 | Mo. | 1917
The defendants were tried jointly in the circuit court of the city of St. Louis for the crime of robbery in the first degree, and being by the jury found guilty had assessed against each of them as punishment impris
The facts shown on the part of the State are brief, as are likewise those offered by defendant. Howard Graham, the man averred in the information to have been robbed, was a bartender in charge of the saloon of one John Miller, which saloon was situate on the northeast corner of Twentieth and Olive streets in the city of St. Louis. • Miller, the owner of the saloon, was absent at the time the robbery occurred. At about eight o’clock on the evening of April 1, 1915, the two defendants and said Warrance went to Miller’s' saloon and endeavored to borrow the sum of five dollars from Ploward Graham. The latter refused to lend them this money, but at their solicitation gave them a drink of liquor of some sort, and thereupon the three left the saloon. Some fifteen or twenty minutes later the defendants and said Warrance returned to the saloon and defendant Rowe drew’his revolver, presented it at Graham and ordered him to throw up his hands. At this time there were besides Graham, three other men in the saloon, who also at the command of Rowe threw up their hands. Defendant Rowe then at the point of his revolver compelled Graham and one Sherman Holman, who was one of the customers in the saloon at the time of the robbery, to go down a stairway into the basement of the building. Steven Sandothe, another.of the customers in the saloon at the time of the robbery, ran out at the side door, apparently while defendants and Warrance were disposing of the others, and saw no more of the robbery. Gus Bloomer, the third and last of the three customers, was compelled to enter the ice box, from which box through the glass window thereof, he saw some one of the party taking money out of the cash register.
The proof shows that all of the money in the cash register, amounting to some $24.60, was taken by some one of the persons engaged in the robbery. As soon as
The only witnesses produced in behalf of defendants were Officer Gunn and defendant Rowe himself. Defendant Sanders did not testify. No evidence of importance was elicited from Officer Gunn except that he stated he found no pistol on defendants when he arrested them, but he did not remember how much money they had. He corroborated the conversation between defendant Rowe and Graham, which we set out above, and the fact of the identification of the defendants by Graham. Defendant Rowe denied substantially every fact stated by the witnesses for the State. He admits that he came into the saloon on the night of the robbery, but he says that he did so for the purpose of buying a drink and that while doing so an argument arose between Graham and some .unknown person; that Graham reached for a pistol and he (defendant) ran out the front door. There is no contehtion made, however, as to the sufficiency of the evidence, nor could there be upon the facts shown in proof.
Such furthet facts as transpired upon the trial and which form the basis of the several contentions urged by defendants for reversal, will be set out when we come, to express our views.
II. Upon the trial the court gave touching the testimony of defendant Rowe (defendant Sanders did not take the stand), the identical instruction condemned by this court In Banc in the late case of State v. Finkelstein, 269 Mo. 612. -^le State concedes and we perforce agree that this was error for which the case must he reversed, if the point has herein been properly saved tor review. Let us look alone to the latter point.
The proper exceptions were saved when the instruction was given; but the only reference in the motion for a new trial, which can by any construction he held to refer to the instruction now criticised or to any other, is this, to-wit: “Because the court gave the jury illegal, improper and erroneous instructions over the defendants’ objections.” This is not a sufficient pointing out of error. The trial court is fairly entitled to have his attention directed to the errors which he-has committed with such specificness at least as will enable him to find the situs of alleged error, without putting an unnecessary 'burden upon his time and care. [State v. McBrien, 265 Mo. l. c. 604.] Likewise, for reasons to he seen below and in the dissenting views of the writer' in the Finkelstein case, supra, we are entitled to know wherein the instructions given or omitted are erroneous or insufficient. Whether there exist differences in the rules which respectively govern appellate practice in civil and criminal cases we are not required to here determine. The assignment of error herein would not he sufficient in a civil case. The statute which provides with what definiteness a motion for a new trial in a civil case shall set out the reason therefor (Sec. 1841, R. S. 1909) has, by reason of its now position in the statute, due- to codification and revision, seemingly, though not actually, lost some of its appositeness. Going afield a moment to recall a hit of its history, we note that said Section 1841 first came into our practice acts in 1835, and then read thus:
“All motions for new trials and in arrest of judgment, shall be made within four days after the trial, if the term shall so long continue, and if not, then before the*95 end of the term; and every such motion shall be accompanied by a written specification of the reasons upon which it is founded.” [See. 1, p. 469, R. S. 1835.]
The above provision was again printed in the Revision of 1845 among the requisite details of a motion for a new trial, and as yet having reference to no other kind, of motions whatever, but was put into a separate section. [Sec. 2, p. 830, R. S. 1845.] Pour years later the present practice code was passed (Laws 1849, p. 73), but it contained no express provision as to what any motion should contain. In 1855 the whole practice act was revised, and the living parts, that is, the parts of the old practice act which had not been abrogated or repealed by the new Code of 1849, were put into one revised bill with the said code, and in this revised act the section (now Sec. 1841, R. S. 1909) designating the requisite contents of a motion for a new trial, was put among miscellaneous details of civil practice, and thus for the first time made to apply to all formal motions of what ever kind, made under the civil code. [Sec. 27, p. 1235, R. S. 1855; Sec. 48, p. 662, G. S. 1865; Sec. 3557, R. S. 1879; Sec. 2085, R. S. 1889; Sec. 640, R. S. 1899; Sec. 1841, R. S. 1909.]
But we have left no room for doubt as to what statute governs us as to the contents of a motion for a new trial in a criminal case, and what that statute requires. [Cf. sec. 5285, R. S. 1909.] The controlling language is, that “the motion for a new trial shall be in writing and must set forth the grounds or causes therefor.” [Sec. 5285, supra.] It will be noted that the language of this section does not say that it may set forth the-grounds and causes therefor, but that it must do so; neither does it say that part of such a motion may be oral and the remainder in writing, or that a part of it must be in writing and the rest of it held in ambush, or' in reserve solely for the ear of the appellate tribunal, or in the secret crannies of learned counsel’s mental processes, but it says the motion shall be in writing. Upon the only dark or doubtful point left us, that is, the question: "What is a sufficient setting forth of the grounds and causes? we have been fairly liberal. We have never required to be
III. The further contention, that the instruction upon the weight of defendant’s evidence is bad, because of the fact that defendant Roe Sanders, though jointly tried with defendant Rowe, did not himself testify in the case, Rowe being the only one of defendants called as a witness, is affected ^y £he same infirmity. Both contentions go to the correctness of an instruction, or to the propriety of giving it. Both points are alone preservable by a proper and sufficient motion for a new trial. But if it be contended wholly aside from the instruction phase that as to Sanders the instruction is a forbidden comment upon the failure of the latter to testify upon the trial, then the answers are: (a) that he was of his own volition jointly tried with Rowe, and the forbidden comment — if it was such and viewed solely as such — was not error aa
IY. It is urged that one Frederick Klug, who qualified upon his voir dire examination upen the panel from which the trial jury was selected, was in fact peremptorily challenged by defendant, but was through an error called into the jury-box by the deputy sheriff and actually served as one of the trial jurors. In proof of the fact of such peremptory challenge of Klug there are appended the affidavits of the two defendants and of their counsel, which latter affidavit is accompanied by a copy of 'the jury list (authenticated as a true copy merely by the affidavit of counsel for defendant). Against this showing the State offered the counter affidavit of the deputy sheriff who held the jury list and called the trial panel into the jury box, and who swears that the name of Klug was on the list unchallenged, and for this reason ho called him as a juror and he served as such. ,
It will be seen that the affidavit of the officer contradicts diametrically the affidavits of defendants and their counsel. The copy of the jury list shown us here contains but eleven names unmarked upon the panel, so that if it be a fact that the juror Klug was challenged by defendant, then but eleven unchallenged men were left thereon to try the case. So, if Klug was challenged, then either the defendant or the State challenged peremptorily more jurors than the law gives them the right to challenge. Whether this error, if it was such, was committed by the defendant, or by the State, we are unable to determine from the copy of the list before us. Questions both of fact and law arise upon an appeal, concretely presented by the twin queries: (a) Did the thing complained of actually happen upon the trial of the case? And (b) if it did actually happen, is it reversible error?
Let the case be affirmed.