State v. Washington
State v. Washington
Opinion of the Court
A Jackson County jury convicted Edward Eugene Washington of first degree robbery. He has appealed from a judgment and sentence of 5 years in the penitentiary. Appellant not having filed a brief we examine the assignments of error in his motion for new trial.
The first four assignments (that the verdict is contrary to the law, contrary to the evidence, against the weight of the evidence, not supported by any substantial evidence and was arrived at by speculation, guesswork and prejudice) will not be reviewed. It is no longer necessary to cite authority for the proposition that such generalities, in violation of Sup.Ct. Rule 27.20, V.A.M.R., preserve nothing for appellate review.
Appellant’s fifth assignment (that the court erred in overruling appellant’s motion for judgment of acquittal at the close of the state’s case, for failure of proof) was waived by appellant thereafter offering evidence. State v. Hutchin, Mo.Sup., 353 S.W.2d 701, 702 [2].
In assignment No. 7 appellant attacks verdict-directing Instruction No. 2 on numerous grounds. We pass over objections that No. 2 was not a proper declaration and was a misdirection of law, and improperly hypothesized facts, and was confusing and misleading, because such objections are too general to merit consideration on review. The objection that No. 2 assumed that the money or property referred to therein was the property of Viola Flanagan is without merit. The submission was preceded by the words “if you believe and find from the evidence, in this case, beyond
Appellant’s eighth assignment attacks Instruction No. 6 on the ground that it is an abstract statement of law; fails to require a finding that defendant acted together with another with a common intent to commit first degree robbery, and conflicts with No. 2 for the reasons given in Assignment No. 7. What we have said with respect to generality and lack of conflict decides Assignment No. 8 adversely to appellant.
That part of Assignment No. 9 which does not clearly fail for generality alleges that Instruction No. 4 “should not have been given for the reason that the evidence in the case was not wholly circumstantial and the giving of said Instruction under these circumstances prejudiced the defendant.” In form Instruction No. 4 properly declared the law pertaining to circumstantial evidence, but erroneously stated that “there is no direct evidence of the guilt of the defendant in this case.” As indicated, there was eyewitness testimony that defendant and another strong-armed Viola Flanagan and made off with her property. The error, however, does not call for a reversal of the judgment. It did fiot harm the defendant. On the contrary it favored the defense, for it tended to disparage the direct testimony of the prosecuting witness and.to depreciate the state’s case. There was some justification for giving a circumstantial evidence instruction. The case was based in part upon inferences to be drawn from circumstances. For instance, there was no direct evidence of a felonious intent to rob. Where a case partially depends upon circumstantial evidence it is proper, although not mandatory, to instruct thereon. State v. Arnett, 338 Mo. 907, 92 S.W.2d 897, 901 [8]; State v. Mansker, 339 Mo. 913, 98 S.W.2d 666, 672 [5]; State v. Smith, 354 Mo. 1088, 193 S.W.2d 499, 503 [12].
In Assignment No. 10 appellant raises the point that the court erred “in failing to fully instruct the Jury of all the law covering the issues raised by the information and the evidence.” This is too general to merit consideration. Further, that the court failed to instruct that the burden of proof was upon the state to establish defendant’s guilt beyond a reasonable doubt. Of course, it is fundamental that the instructions must include the subject of reasonable doubt. Section 546.070(4), RSMo 1949, V.A.M.S. “No case is ever submitted, none could lawfully be submitted, without a charge that the defendant in law is presumed to be innocent and the state must
Appellant’s eleventh assignment assails the giving of alibi Instruction No. 8, which follows: “The Court instructs the jury that the defendant has interposed for a defense what is known as an alibi; that is, that even if the crime was committed, he at the time of the commission thereof, was at another and different place than that in which such offense was committed, and therefore was not and could not have been the person who committed the same. Now, if the evidence leaves in your mind a reasonable doubt as to his presence at the place where the offense was committed at the time of the commission thereof, you will find him not guilty.” Appellant says this instruction failed to tell the jury that defendant was not required to establish the defense of alibi beyond a reasonable doubt, and misdirected the jury by telling them “in effect that the burden of proof was upon the Defendant to establish his innocence beyond a reasonable doubt.” An identical instruction given in State v. Williams, 309 Mo. 155, 274 S.W. 427, 435 [12], was attacked on the same ground. What this court said in the Williams case is fully applicable here, 274 S.W. 1. c. 435: “The objection made to this instruction is that it does not advise the jury as to the quantum of proof necessary to establish the defense of alibi. This instruction was given in connection with one on reasonable doubt and a presumption of innocence. Where this is the case, an instruction on alibi which tells the jury, as this did, that if the evidence of this defense, in connection with all of the other relevant facts, raises a reasonable doubt of the presence of the accused at the time and place of the crime, he should be given the benefit of such doubt and be acquitted. The instruction given conforms to these requirements and limits the jury’s consideration to the same rule as in the weighing of other testimony; but does not direct the jury as to a particular manner in which the evidence in support of this defense should be considered. Thus framed, the state’s instruction accords with the rule announced in many cases.” The same point was raised and rejected in State v. Prunty, 276 Mo. 359, 208 S.W. 91, 95 [5], in this language: “The point is not well taken. The jury was instructed as to the defense of alibi, and told that if they had a reasonable doubt of the presence of the defendants, or either of them, at the time and place where the crime was committed, they should acquit them, or either of them. This was entirely sufficient for the purpose, and gave defendants the full benefit of that defense, and did not place the burden upon them.”
Appellant’s twelfth assignment is error in refusing appellant’s proffered Instruction No. A on the defense of alibi, but in view of the fact that the defense was properly submitted by Instruction No. 8, there could have been no error in refusing another instruction thereon.
Finally, assignment No. 13 is error in refusing appellant’s proffered Instruction No. B,' on the ground that it was a proper converse of Instruction No. 2. Instruction No. B, however, was not kept from the jury, for the exact language of No. B (hereinafter italicized) was incorporated in given Instruction No. 5, a proper converse instruction, which follows: “The Court instructs the jury that if you find and
We have examined the information, verdict, judgment and sentence, as required by Sup.Ct. Rule 28.02, and find them sufficient in form and substance.
The judgment is affirmed.
PER CURIAM.
The foregoing opinion by HOUSER, C, is adopted as the opinion of the court.
Reference
- Full Case Name
- STATE of Missouri v. Edward Eugene WASHINGTON alias Robert Eugene Mason
- Cited By
- 2 cases
- Status
- Published