Opinion
No. 42163.
February 12, 1951.
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, JOE W. McQUEEN, J.
J. E. Taylor, Atty. Gen., Robert L. Hyder, Asst. Atty. Gen., for respondent.
This appeal is from a conviction of statutory rape, Sec. 4393, R.S. 1939, Mo.R.S.A. § 4393. The jury assessed appellant's punishment at fifteen years' imprisonment in the penitentiary.
The appellant has filed no brief but it is our duty to examine the record proper for error and to examine also the bill of exceptions for those errors assigned in appellant's motion for a new trial. Sec. 4150, R.S. 1939, Mo.R.S.A. § 4150; State v. Jones, Mo.Sup., 227 S.W.2d 713, 716; State v. Montgomery, Mo.Sup., 223 S.W.2d 463, 465. Our examination of errors assigned in the motion for a new trial is limited to those assignments which meet the requirements of particularity specified in Sec. 4125, R.S. 1939, Mo.R.S.A. § 4125. State v. Pippin, 357 Mo. 456, 209 S.W.2d 132; State v. Jones, supra.
Appellant does not challenge the sufficiency of the evidence. The complaining witness was twelve years of age when the offense was committed. Her testimony is clear and definite. It is corroborated by medical evidence, by some of the testimony of appellant's wife and by appellant's confession of guilt which was offered in evidence both in the form of a signed written statement and a wire recording. Two officers of the Kansas City Police Department testified that appellant's confessions were made by him voluntarily after he had been advised of his rights and that appellant was not coerced, threatened or offered any inducement to make his statements. Appellant testified, on the other hand, that he was subjected to prolonged questioning by the police and signed a statement admitting guilt and made a wire recording (in which such admissions were repeated) solely to escape physical violence which had been threatened. The trial court admitted both confessions in evidence and, in so doing, acted in the proper exercise of discretion. State v. Gibilterra, 342 Mo. 577, 116 S.W.2d 88, 94.
There are four assignments of error in the motion for a new trial. Assignment 1 charges error in the admission of "illegal, immaterial, irrelevant and incompetent evidence offered by the State." Assignment 2 charges error in refusing to admit "competent, material, proper and relevant testimony offered by the defendant." These assignments are too broad and general to comply with Sec. 4125, R.S. 1939, Mo.R.S.A. § 4125, and present nothing for our review. State v. Courtney, 356 Mo. 531, 202 S.W.2d 72; State v. McGee, 336 Mo. 1082, 83 S.W.2d 98; State v. Harris, 337 Mo. 1052, 87 S.W.2d 1026. Assignment 3 charges error in the refusal to give Instructions A, B and C at the request of appellant. No reason is assigned why it was error to refuse these instructions. This assignment also is too general to preserve any question for appellate review. State v. Grubbs, 358 Mo. 323, 214 S.W.2d 435, 437; State v. Goodwin, 333 Mo. 168, 61 S.W.2d 960. Nevertheless, we have examined these instructions and find no error in their refusal. Instruction A defined "reasonable doubt" but Instruction 10 given by the court correctly defined this expression. Instruction C is on the burden of proof but this subject was adequately covered by Instruction 10. Instruction B dealt with appellant's admissions or confessions and instructed the jury to disregard any of appellant's statements which were procured by "coercion, threats or fear." Instruction 8 given by the court instructed the jury fully on their duty to disregard any of appellant's statements which they believed were not made voluntarily but which were induced by fear or by a hope of "reward of leniency." It is proper to refuse to give instructions the subject matter of which has been adequately covered by other instructions given to the jury. State v. Aitkens, 352 Mo. 746, 179 S.W.2d 84, 90; State v. Meidle, Mo.Sup., 202 S.W.2d 79, 82.
The fourth and final assignment of error is as follows: "4. Because the counsel for the state was guilty in improper conduct in the presence of the jury in the trial of the cause and in the argument thereof, which said improper conduct was called to the attention of the court at the time of the trial, and consisted of erroneous accusation and denunciation [of the denunciation] of the defendant, accusing him of crimes other than which he is charged in this case, and of licentiousness and with being a `stool Pigeon' and other matters of similar nature and character, all of which were objected to and exceptions saved to the ruling of the court by the defendant and caused to be entered by the defendant in the record of the proceedings of the trial at the time. All of which tended to and did prejudice the substantial rights of the defendant herein and deny to him a fair and impartial trial of the controversy between the state and himself."
We have reviewed carefully the entire transcript and bill of exceptions. We have found nothing in the record which substantiates this assignment of error. We have not found a single instance, either during the presentation of evidence or upon argument to the jury, where counsel for the State accused the appellant "of crimes other than which he is charged in this case, and of licentiousness and with being a `stool Pigeon'." Appellant readily admitted, in cross-examination, that he had been convicted of robbery in 1933, upon his plea of guilty, and had served a term in the Missouri Penitentiary. No objection was made to this testimony and, of course, it was admissible in impeachment of the appellant. In response to questions of his own counsel, appellant stated that he had served as an informer for the Kansas City Police Department over a period of years. The only time appellant was characterized as a "stool Pigeon" was when his own counsel made such a reference to him in his argument to the jury. There is no merit in this assignment.
The information is in the language of the statute, Sec. 4393, R.S. 1939, Mo.R. S.A. § 4939, and follows a form which has been approved by this Court. State v. Birkner, Mo.Sup., 229 S.W.2d 674. The verdict is clear, definite and responsive to the issues presented. The punishment assessed is within the limits prescribed by the statute. The appellant was granted allocation. We find no error in the record proper.
The appellant was fairly tried. The judgment is affirmed.
VAN OSDOL and LOZIER, CC., concur.
The foregoing opinion by ASCHEMEYER, C., is adopted as the opinion of the court. All concur.