*1 245 Smercina, supra; 316 Pappas, Burke v. ease. See Schulz v. Wells, Shumate 320 9 S. W. 536, 293 Mo. 1235, S. W. Mo. Wittig, (2d) 358, 11 W. 632; Causey v. (2d) cited. eases giving instructions, trial court errors of the
Because of the All cause remanded. judgment and the concur. is reversed Virgil Appellant. (2d) 94. Shuls, The State Two,
Division December 1931. *2 Shartel, Attorney-General, Poiuell, A.C. Stratton Assistant respondent. Attorney-General,
COOLEY, robbery C. Defendant was convicted of first degree, twenty-five years imprisonment sentenced to peniten- tiary, appealed. has prove The 7:30 State’s evidence or 7:40 tended that at about
p. m., Saturday, January prosecuting on witness Yelma girl Drury companion, Flannery, Fraser and a Elizabeth students at College, Springfield, Missouri, stopped way were on their while dormitory they their a man whom not know. robbed did When they hedge college standing saw the man first he was near a on the campus. they running To meeting avoid him across the cam- started pus dormitory. toward The man them and commanded followed stop. presented pistol young them to He and ordered ladies pocketbooks, threatening they their them hand over to shoot unless obeyed. They obey. pocket- did robber both took from their The books. $5 that of Miss Fraser there was a bill and some small change. rings, they they He also their when demanded rings gloves. compelled had no he Fraser them to remove their Miss ring give compelled young wore a which him. the man her to The valuables, fearing they unless ladies surrendered their did so the robber would shoot as he There no them threatened to do. robbery girls. except witnesses the two night light dark, was rather but not far there was a street place they robbery. girls Both
from the testified could distinguish sufficiently see the robber well his features to see gave robbery They reported was dressed. at once how he at his description of the robber. Defendant was arrested home police to him Springfield about a week later. were directed girls. description given by When defendant was arrested girls dress of the man substantially as had dressed described police station, girls them. Both saw defendant at the who robbed *5 at speak positively him the trial as him and both identified heard They they recognized that who had them. testified the man robbed voice, by his his face police station identified him him the and at empty, by pocketbooks, his clothes. The “appearance” robbery. ring The place several blocks from the were found money property was stolen not recovered. None of the upon found defendant. witnesses, eight
Defendant testify. did not or He called seven strongly to impeached, testimony none of whom were tended whose in prove by counsel an alibi represented for him. is not Defendant upon grounds this court. for the We look to his motion for new trial which he judgment. seeks reversal of the assigns Defendant
I.
error in
to
overruling
motion
of his
ground
quash the information.
alleged
One
for new
in
motion
upon
trial
is
the affidavit
which
preliminary
examination
by
was based
having
knowledge
was made
of
one
no
testify
facts such
as
as would
competent
make him
witness,
proceedings
wherefore the
thereon were
based
and that “the
proper
void
defendant has not been
him
accorded
preliminary hearing.” Those matters are not
us for review.
before
quash
The motion to
is not
nor
exceptions,
contained
the bill of
any
overruling
does
bill
show
exceptions to the
court’s action
such motion.
any
Neither does it show that
was offered
evidence
in support of
allegations
those
of
if
the motion
contained therein.
allegations
Those
of
prove
the motion
would not
themselves.
quash
motion to
is not
proper
record
and is
before us for review
not
preserved
unless
part
by
of ex-
made
the record
the bill
ceptions.
evidence,
thereof,
any,
support
Likewise the
if
offered in
rulings
with the
exceptions thereto,
pre-
court’s
and the
must be so
Hembree,
(2d)
served.
v.
Cobb,
State
37 W.
State
[See
III. We prosecuting attorney by the assistant reference in the trial at the jury defendant’s to the failure to tes- closing argument his objection ruling upon defendant’s thereto. The court’s tify and the attorney gentlemen hold-up, said: “Who at was there jury? parties girls There were three there and these two were the only testified, By they say?” ones that defendant’s and what did object in- that, please, counsel: “We if reference the court *7 objection nuendo.” defendant The court overruled the saved exceptions. Later, attorney his closing argument in his the same jury read to the an given instruction which court had at defend- the request, ant ’s as follows: State, jury “The court instructs of this the that under the laws right testify if the accused shall on the not avail himself of his to trial in the case it shall not be to innocence or construed affect the guilt any presumption of the accused nor shall the same raise guilt nor be con- by any attorney referred to case nor in the be by place.” jury sidered the court or before whom the trial tabes Following reading attorney said: “Now this instruction the gentlemen jury estopped by of the I He am that instruction —” objection interrupted by an which was sustained and at defend- ’s request jury ant reprimanded that counsel be the court directed the disregard attorney; to by they “those remarks shouldn’t have by disregarded by you.” By him been made and should be defend- except reprimanded.” ant’s counsel: “We want is to that he not complain If the latter occurrence were all that defendant had to of we should be not in view inclined to hold that it ivas reversible ruling of the court’s fact himself had and the that defendant called jury’s by requesting attention to fact that he had not testified requested the instruction. Since he had the instruction can not he charge having given having the court with error in it. And been True, given, might jury. instruction course be read to the instruction well as itself as the statute forbade comment on the fact that defendant had not testified. But the court on occasion objection promptly sustained defendant’s when counsel for the State jury disregard attorney’s comment, started to told re- reprimanded in episode marks and effect him. Thus so far as that is concerned we think there Was no reversible error. said, however,
That cannot be first reference defendant’s testify. pointed failure That it was effect a reference to the controversy plain fact that defendant had not testified is too necessarily by and that it ivas so so understood intended jury clearly does not admit of doubt. The evidence showed dispute present persons ivithout three or there Avere but who girls hold-up, witnessed the the two who testified and the defendant attorney present who not. said that there three did “and girls only tAvo were the ones that testified.” The these reference testify defendant’s failure to could not have been more obvious had baldly he and the fact stated that he had been called name not girls.. testimony of taken stand and denied the the witness 253 but rather 462, 82 S. W. a similar Snyder, v. State defendant’s argument to the pointed less reference counsel Wat- v. also State testify error. See was held reversible failure to 274 Drummins, 840; (Mo. Sup.), (2d) 1 State son S. W. 13, 65 S. 1,Mo. Weaver, 632, 644, Mo. State W. 308. forbidding argument statute reference to the fact that the testify mandatory.
defendant did is See cases above, cited this paragraph. question The reference here violated the statute the court’s instruction as well. It is true the instruction had called jury’s testified, attention to the fact that the defendant had not guilt it but also stated that such fact presumption raised no question guilt should not be construed affect the of defendant’s words, innocence, creating or in other should not be treated as an inference unfavorable to defendant. The inevitable effect of the argument considering suggest we are towas that such unfavorable prejudicial argument should inference be drawn and the effect of the *8 overruling was accentuated the court’s action in the defendant’s objection. jury ruling naturally The would understand from that argument proper notwithstanding that court the considered the likely inference, the instruction would draw unfavorable to the the defendant, argument obviously suggested. say which the We cannot non-prejudieial. that the error was suggested objection
It is the State’s brief that defendant’s was sufficiently many specific. attorney say not His in so words did not that, objected testify, he to the reference to defendant’s failure to enough but that was meant. To have he to show that what he emphasized to which said more would but have the fact the reference trying prevent. objection he was to We think the was sufficient and sufficiently preserved was trial. it in the motion for new objections portions argument of of the There were to other the prosecuting attorney unnecessary assistant which dis- we deem to case, questions may our not disposition cuss view of of the as arise on trial. another Complaint
IV. court’s is made in the motion for new trial of the give requested 3, 4 numbered refusal to defendant’s instructions specification “Because and 5. motion is this form: give which as No. 3 is failed to Instruction
the court motion copied in the follows:” The instruction is then any why was error to specification of reasons it without 5 treated 4 it. instructions refuse Kefused trial for new assignment A in a motion manner. similar same in the present re- action in court’s insufficient for was held to review (2d) 57, Bailey (Mo. Sup.), fusing in State instructions q. v. “refused to instruct that the court
Complaint is also made weight credibility witnesses and the of jury law relative upon the exceptions given testimony.” bill of their be subject was on that instruction does n0^ s^ow ^at an of of the law part a requested. instruction is not Such give whether re required by statute which court is the case inappropriate may it be quested circumstances or not. some subject on that instruct court to give it at all. The failure of the requested so not error. being to do was without to show almanac page of an to introduce Y. Defendant offered robbery, night of 10:30 on the that rise until the moon did not purpose being prove at the time was dark that it x may not witnesses robbery the State’s and that might The evidence distinctly them. have seen the man who robbed showed properly evidence have been admitted. But the State’s was dark risen, it not sun had set and the moon had light, a street and that the aid defendant was observed evidence which offered reasons we think exclusion prejudicial. Defendant’s insufficient contention that the evidence was to make
a, submissible case verdict is untenable. and to sustain the judgment
For III is paragraph the error noted in hereof re circuit court. versed and the is to the Westhues cause remanded Fitzsimmons, CC., concur. foregoing by Cooley, C., adopted PER is opinion CURIAM: The opinion judges as the All concur. the court. *9 (2d) 142. Hannebrink, Appellant. Bill
The State v. W. Two, Division December 1931.