413 S.W.2d 849 | Mo. | 1967
For twelve years Ruby O’Flynn and her father Elmer Flynn, age 85, have lived on
Richland is on the Laclede-Pulaski County line and the appellant’s first assignment of error is that the state “failed to prove venue” and therefore, it is said that “the conviction cannot stand.” State v. Hawkins, Mo., 361 S.W.2d 775; State v. Poelker, Mo., 378 S.W.2d 491. And, of course, “Offenses committed against the laws of this state shall be punished in the county in which the offense is committed * * *.” RSMo 1959, § 541.030, V.A.M.S. There is no need to elaborate on the subject here, however, the difficulty with the appellant’s assignment is that it is circumstantially if not directly disproved by the record. State v. Hartwell, Mo., 293 S.W. 2d 313; State v. Palmer, 281 Mo. 525, 220 S.W. 680. Without detailing other relevant circumstances Ruby testified that she and her father lived in Laclede County. She said that their property was “right on the county line” but she knew “where the line runs” and on redirect examination said that the tavern, store and house, while three separate buildings were “all on the same tract of land. Q. Were all three of these in Laclede County? A. Yes. Q. In fact, is all your land in Laclede County? A. Yes, sir. Q. There is only one area more or less, just a small point and they are all there all in Laclede County? A. Yes.” The holdup and robbery, according to Ruby, occurred inside the tavern. In these circumstances the state sufficiently established and the jury could'reasonably find venue in Laclede County. State v. Heissler, Mo., 324 S.W.2d 714.
The appellant’s second assignment is that the court prejudically erred in overruling his application for a continuance (Cr. Rule 25.08, V.A.M.R.; RSMo 1959, § 545.710, V.A.M.S.) thus requiring him to go to trial “at a time when the community was inflamed, aroused and prejudiced
“Judge Curtis also today set trial of Billie Joe Taylor, on an armed Robbery charge, for Wednesday. Taylor, after being jailed here, escaped and then was recaptured.
“He reportedly tried to escape from the Greene County jail in Springfield during the past weekend.”
There was no transcript of the radio broadcast.
In the first place, there was no request for a hearing upon this request for a continuance and there was no proof whatever of the allegations of the motion. All that appears is that “said motion * * coming on for hearing and determination, was by the court on October 5, 1965, overruled, over the objections of the defendant.” It may not be said on the mere face of the presented material that it was so manifestly inflammatory as to certainly prevent the appellant from having a fair trial. Since it was not that type of material, the mere formal application is not in and of itself self-proving and from the minute entry the court evidently considered the material on file before it and, of course, what the court itself must have known and it may not be said that there was an abuse of discretion in the denial of the motion upon the showing or presentation made. State v. Le Beau, Mo., 306 S.W.2d 482, 486; State v. Sanders, Mo., 313 S.W.2d 658, 660.
Without further requests or objections, the defendant announcing ready for trial, the cause proceeded. Prior convictions were admitted, the jury was returned to the courtroom, the panel of thirty jurors was sworn and the court said (only parts of the voir dire examination are set out); “No doubt you have read something in the newspapers about this case, and you may have seen something on the television about it, may have heard something on the radio about it. Let’s see how many have read or heard it on the radio or seen it on the TV. Well, a great many of you, most of you. Of those who have read something about the case, heard it on the radio or seen it on TV, has any one of you formed or expressed an opinion about the guilt or innocence of the accused? Don’t tell us what your opinion is if you have one.” One juror after being examined and indicating that it would take evidence to remove his feeling of guilt was excused. Then a lady juror was excused because of her opinion, a third juror was excused because he had talked to Sheriff Murphy about the case. The court then requested the sheriff to secure four more jurors, other jurors were temporarily excluded, the four were
There was no mention in qualifying the jury of Billy Joe’s escape or attempt to escape, the qualifying procedure was the apparently conventional attempt to select a fair and impartial jury. Of course the circumstances in which the appellant committed the offense were not likely to arouse a great deal of sympathy but there is no way to erase the prejudice engendered by the defendant’s commission of the offense and upon this record there was no manifest abuse of discretion comparable to that in Delaney v. United States and upon this particular record the court did not preju-dicially err. State v. Golden, 353 Mo. 585, 183 S.W.2d 109, 112-113; State v. Spica, Mo., 389 S.W.2d 35.
The three other assignments of error have to do with the handling and admission in evidence of certain exhibits. These assignments are argued in some detail but need only brief notice here. There was Ruby’s sash, Billy Joe’s belt and sunglasses, a photograph of the wrecked Valiant, Ruby’s green billfold and among other claims it was said that some of the articles were handled .by witnesses and seen by the jurors before being properly admitted in evidence. As to some of the items, as the colored sash, it is said that “the chain of custody” was not properly established and that the photograph of the wrecked automobile and the vehicle with which it collided was not relevant or material to the charge of armed robbery and tended to unfairly inflame the jury. Without unnecessarily detailing all the circumstances in which these articles were handled and finally offered in evidence, it is sufficient to say that as to several of the matters there were no objections, or the objections were lacking in specificity and present no reviewable questions here. State v. Brooks, Mo., 360 S.W.2d 622. It is not claimed that by reason of their gruesomeness the photographs were inflammatory, they fairly represented the termination of Billy Joe’s course after the robbery and while the oral testimony fully and completely described all the events of the robbery the photographs were at most cumulative and there was no abuse of discretion in their admission in evidence. State v. Sims, Mo., 395 S.W.2d 445, 449. The belt, sash, sunglasses and other items were carefully identified either by Ruby, sheriff’s officers or patrolmen, they were all initialed or marked, their care and custody accounted for and they were all employed in the robbery or worn by Billy Joe and aided in the positive identification of him as the robber and, needless to say, in any event were admissible in evidence, certainly as against the assignments made here. State v. Bland, Mo., 353 S.W. 2d 584, 586; State v. Knox, Mo., 320 S.W. 2d 592; State v. Easley, Mo., 338 S.W.2d 884; State v. Gerberding, Mo., 272 S.W. 2d 230.
In these circumstances, the grounds set forth in the assignments of error not entitling the appellant to a new trial, the judgment is affirmed.
PER CURIAM.
The foregoing opinion by BARRETT, G, is adopted as the opinion of the court.
All of the Judges concur.