Opinion
No. 38731.
June 5, 1944.
1. CRIMINAL LAW: Trial: Prosecutor's Statement of Change of Venue. The opening statement of the prosecuting attorney that the case came to the county on change of venue was not reversible error.
2. CRIMINAL LAW: Appeal and Error: Separation of Jury Not Established. The record on appeal does not establish the alleged separation of the jury.
3. CRIMINAL LAW: Trial: Improper Questions of Prosecutor Not Established. The record does not establish that the prosecuting attorney asked improper questions designed to prejudice the jury against defendant and his witnesses.
4. CRIMINAL LAW: Trial: Improper Argument: Issue Not Preserved. Defendant's objection was sustained and the jury was admonished to disregard a statement of the prosecuting attorney, and defendant preserved no issue on appeal for any further action.
5. CRIMINAL LAW: Appeal and Error: Juries: Objection to Venireman Not Sufficient. Counsel's objection to a venireman was not evidence of the facts stated therein and presented no issue for review on appeal.
Appeal from Newton Circuit Court. — Hon. Emory Smith, Judge.
AFFIRMED.
James E. Sater and A.R. Dunn for appellant.
(1) The court committed error in permitting the counsel for the State to repeatedly ask questions of witnesses for the State, questions about certain alleged crimes different from the charge against the defendant, leaving the inference that defendant had committed other crimes, well knowing at the time such questions were asked that he had no evidence to substantiate, and asked solely for the purpose of biasing and prejudicing the jury against the defendant detailing in language calculated to incite the passion of the jury against defendant, the kind of place of defendant's arrest; charging witnesses for defendant with making up their story or testimony. State v. Prendible, 165 Mo. 329; State v. Webb, 254 Mo. l.c. 435; State v. Spivey, 191 Mo. l.c. 112; State v. O'Connor, 65 Mo. 374; State v. Douglas, 15 Mo. App. 1; State v. Phillips, 233 Mo. 299; State v. Wellman, 253 Mo. 302. (2) Attorney for the State well knew that testimony of other crimes such as he repeatedly persisted in getting before the jury was improper and inadmissible, his sole purpose being to get such matters before the jury by suggestion with the evident purpose of convincing the jury that defendant was guilty of such other alleged crimes. State v. Jones, 256 Mo. 787; State v. Wagner, 252 S.W. 695; State v. Dixon, 253 S.W. 746; State v. Salter, 256 S.W. 1068; State v. Smith, 261 S.W. 696; State v. Aurentz, 263 S.W. 178; State v. Shobe, 268 S.W. 403; State v. Ross, 267 S.W. 853; State v. Austin, 234 S.W. 802; State v. Kolafa, 236 S.W. 302, 291 Mo. 340; State v. Barker, 249 S.W. 75; State v. Conway, 171 S.W.2d 677; State v. Jones, 154 S.W.2d 85; State v. Patterson, 149 S.W.2d 332; State v. Flores, 55 S.W.2d 953. (3) Counsel who assisted in the prosecution of defendant committed reversible error in his argument when at the height of his argument he turned to the defendant and pointing his finger at him exclaimed "that fiend sitting there"; that, together with the other inflammatory remarks, coupled with the constant effort to impress the minds of the jury, by insinuations, that defendant had committed other crimes, no effort being made to prove any such crimes against the defendant, certainly had the effect of poisoning the minds of the jury against the defendant. State v. King, 174 Mo. 647; State v. Bobst, 131 Mo. 328; State v. Fischer, 124 Mo. 460; State v. Young, 99 Mo. 666; State v. Clancy, 225 Mo. 654; State v. Clapper, 203 Mo. 549; State v. Ethridge, 188 Mo. 352; State v. Dixon, 253 S.W. 746; State v. Hance, 256 S.W. 534; State v. Flores, 55 S.W.2d l.c. 955. (4) This being a charge of rape by a man over forty years of age upon a small girl alleged to be 12 years of age, tended to inflame the mind of the public against the defendant, and required a more strict adherence to the rule governing the conduct of counsel for the prosecution. State v. Griffin, 6 S.W.2d 866; State v. Nicholson, 7 S.W.2d 375. (5) The court committed error in overruling defendant's objection to the remark of the prosecuting attorney, in his opening statement that "this is a case that comes to Newton County on a change of venue," this being a case where the death penalty can be inflicted it was error to permit the prosecuting attorney to make such a statement. State v. Banton, 342 Mo. 45, 111 S.W.2d 519; State v. Crow, 337 Mo. 397; Neff v. City of Cameron, 213 Mo. 350; State v. Wright, 161 Mo. App. 597. (6) The court erred in overruling defendant's motion for a new trial on the question of the separation of the jury during the progress of the trial. State v. Steifel, 106 Mo. 129; State v. Orrick, 106 Mo. 111; State v. Shaeffer, 172 Mo. 335; State v. Jeffries, 210 Mo. 302. (7) And this is true even though such separation is by consent of the parties. It will be remembered that this is a capital case. State v. Collins, 81 Mo. 652; State v. Jeffries, 210 Mo. l.c. 332; State v. Steifel, 106 Mo. l.c. 134; State v. Witten, 100 Mo. l.c. 530. (8) The court erred in overruling defendant's objection to Louie Bond as a juror on his voir dire examination. His answers to questions were in all matters the same as that of Henry McNight who was excused. There were two or three others, but no exceptions appear to have been taken by defendant, except as to Louie Bond. State v. Brock, 92 Mo. 542; State v. Punshon, 133 Mo. 44; State v. Foley, 144 Mo. 600.
Roy McKittrick, Attorney General, and B. Richards Creech, Assistant Attorney General, for respondent.
(1) The trial court did not err in refusing to instruct the jury not to consider the statement by the prosecuting attorney in his opening statement that the case came to Newton County on change of venue. Vawter v. Hultz, 112 Mo. 633, 20 S.W. 689; State v. Crow, 337 Mo. 397, 84 S.W.2d 926; State v. Banton, 342 Mo. 45, 111 S.W.2d 516; Neff v. City of Cameron, 111 S.W. 1139, 213 Mo. 350; State v. Wright, 161 Mo. App. 597, 144 S.W. 175; State v. Lindsey, 62 S.W.2d 420; State v. Chenault, 110 S.W. 696, 212 Mo. 132; State v. Feeler, 226 S.W. 15, 284 Mo. 673; State v. Dengel, 248 S.W. 603; Sec. 4393, R.S. 1939. (2) Appellant's assignment Number Two in his motion for new trial is too general to present anything for review by this court. State v. McGee, 83 S.W.2d 98; Secs. 4124, 4125, R.S. 1939; State v. Barrington, 198 Mo. 23; State v. McVey, 66 S.W.2d 857; State v. Flinn, 96 S.W. 506; Authorities under Point (4). (3) Appellant's contention in Assignment Number Three in his motion for new trial that the court erred in permitting the prosecuting attorney to repeatedly question witnesses concerning facts that never existed without enumerating in detail the portion of the testimony that he had reference to, such assignment is so general and indefinite that it cannot be reviewed by this court. State v. Arnett, 92 S.W.2d 897; State v. Huddleston, 123 S.W.2d 183; State v. Buckner, 80 S.W.2d 167; Sec. 4125, R.S. 1939. (4) Assignments Numbers Four, Six and Eight in appellant's motion for new trial are so indefinite and uncertain that they cannot be reviewed by this court. Further appellant has abandoned these three assignments in his brief. State v. Meadows, 51 S.W.2d 1033; State v. Kenyon, 126 S.W.2d 245; State v. West, 142 S.W.2d 468. (5) Assignment Number Five in appellant's motion for new trial is not well taken. State v. Griffin, 6 S.W.2d 866; State v. Allen, 174 Mo. 689; State v. Wilkins, 100 S.W.2d 889; State v. Murphy, 111 S.W.2d 132; State v. Dalton, 23 S.W.2d 1. (6) Assignment Number Seven in appellant's motion for new trial which alleges in substance the court's failure to challenge for cause where juror did not sit on trial, not well taken. State v. Tippett, 296 S.W. 132; State v. Hoffman, 125 S.W.2d 55; State v. Meadows, 51 S.W.2d 1033.
Appellant was convicted of statutory rape. The jury were unable to agree on the punishment and the court imposed a sentence of ten years' imprisonment. No point is made with respect to the sufficiency of the evidence and our reading of the record discloses that such an issue would have been without merit.
The first words of the prosecuting attorney's opening statement were: "If the court please, gentlemen of the jury, this is a case that comes to Newton county on change of venue —." Appellant's objection was overruled and he claims reversible [669] error, relying upon State v. Banton, 342 Mo. 45, 111 S.W.2d 516, 519 [4], and cases there reviewed. There is a fundamental distinction between appellant's cases and the instant case. Each of appellant's cases presented an aggravated situation wherein the jury were informed that the case had been brought to the county of trial upon the application of the defendant. The deductible purpose was to imply that for reasons best known to defendant he was unwilling to place his fate with a jury of the county of the crime's commission. Consequently, such statements have been considered made to prejudice the jury against defendant, to deprive him of a fair and impartial trial and to be reversible error in the event of that effect. State v. Wright, 161 Mo. App. 597, 603, 144 S.W. 175, 177 [4], was directed against a long address in the presence of the jurors by the judge on the improper use made of the change of venue statute by accused persons, embracing a severe criticism of defendant and the accusation that the charge of prejudice made against the judge was perjury, made for the mere purpose of delay. Neff v. City of Cameron, 213 Mo. 350, 369 (V), 111 S.W. 1139, 1144(5), 18 L.R.A. (N.S.) 320, 127 Am. St. Rep. 606, involved a number of prejudicial remarks in the course of an argument, including an observation that defendant had taken a change of venue and put plaintiff to additional expense to try the case in the change of venue county et cetera. The remarks in Neff v. City of Cameron appear to have been made with studied calculation to prejudice the jury. Such is not the instant situation. The jurors were informed only of the fact of a change of venue. They were not told who took the change of venue. There was no statement or hint of the reason for changing the venue. The changing of the venue was not criticised. There was no accusation against appellant or implication that he or anyone did anything out of the ordinary. There is nothing in the language used to inflame the mind or to cause jurors to depart from sober reflection upon the evidence. Throughout the trial, under the evidence and instructions, all knew the offense, if any, occurred in Lawrence county and intelligent jurors must have known the case reached Newton county by reason of some change of the venue. The remark may have been unnecessary; but it appears to have been innocently made and, unlike appellant's cases, contained nothing of a prejudicial nature. It is difficult to predicate reversible error upon the statement, without more, of a fact any intelligent juror would understand to be true after hearing the evidence and instructions. Appellant's assertion that the jury had doubts of his guilt from the fact they failed to assess a punishment is not a logical deduction. Punishment is contingent on and theoretically follows guilt but guilt is not contingent on punishment. The State made out a substantial case. Under their oaths the jurors should have acquitted if in doubt as to guilt.
Appellant's counsel admit that the claimed error on account of an alleged separation of the jury is not established by the record before us. Of course, appellate courts upon appeal should not and cannot review something that is not in the record. They would cease to be courts of review if they did. Appellant's asserted error does not prove itself. State v. McGee, 336 Mo. 1082, 1094(d), 83 S.W.2d 98, 105[12].
Appellant's assignment that the prosecuting attorney repeatedly asked questions of the witnesses inferring that appellant had committed other crimes, and in manner calculated to incite the jury against appellant, and charging appellant's witnesses with fabricating their testimony is couched in terms too general to preserve any issue for appellate review under the new trial section (Sec. 4125, R.S. 1939). Ex gratia, we have read the forty odd pages referred to in appellant's brief and find that when matters of the nature mentioned occurred and objections were properly interposed that the court sustained appellant. The court rightly overruled appellant's objection to questions propounded by the prosecuting attorney for the purpose of impeaching the credibility of one of appellant's witnesses. We find no error of record of the nature mentioned.
Complaint is made of the prosecuting attorney's argument; but the court sustained appellant's objection and admonished the jury not to consider the statement, complying fully with every request made by appellant's counsel. Counsel was apparently satisfied nisi with the action of the court, saved no exception, having no ruling to except to, and preserved no issue on the argument for our review. State v. Varnon (Mo.), 174 S.W.2d 146, 148[4]; State v. King, 342 Mo. 975, 991[14], [670] 119 S.W.2d 277, 285[18]; State v. Sherry (Mo.), 64 S.W.2d 238, 239[8], and cases cited. Courts should not be convicted of error when complying with every request made for a ruling. The record presents no adverse ruling for review,
Another assignment considers the overruling of appellant's objection to a venireman. For some reason counsel's objection is the only matter of record before us. Objections interposed by counsel are not evidence of the facts stated therein. State v. Salisbury (Mo.), 43 S.W.2d 1021, 1024[3]; State v. Levy, 126 Mo. 554, 562, 29 S.W. 703, 704; State v. Duncan, 116 Mo. 288, 308, 22 S.W. 699, 704[4]. There is not sufficient record upon which to predicate error. Any other holding would throw orderly procedure into confusion. So far as disclosed of record, it appears that the court was liberal in excusing prospective jurors. One of the two grounds mentioned in counsel's objection stated no legal reason and there is nothing of record establishing either ground.
The judgment is affirmed. Westhues and Barrett, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.