Opinion
No. 43508.
June 8, 1953.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, IVAN LEE HOLT, JR., J.
Joseph Noskay, St. Louis, for appellant.
John M. Dalton, Atty. Gen. and Winston Cook, Asst. Atty. Gen., for respondent.
Edward Ben Rousslang appeals from a judgment imposing a sentence of three years imprisonment for grand larceny in accord with the verdict of the jury. He has filed no brief. His motion for new trial questions the sufficiency of the State's case and the propriety of a statement in the State's argument.
The State's evidence established the following facts. John Clatto operates a tavern at the corner of Eighth and Delmar, St. Louis, Missouri. He saw defendant for the first time on Saturday night, July 7, 1951, in his tavern. Defendant left about 11 p. m. When Mr. Clatto went to close his tavern that night he noticed the latch on the back screen door was off and the screen broken, and the basement door open six or seven inches. It was his custom to leave $100 in bills and coins in the cash register. The cash register can be opened by turning a key on the side or just by ringing it. Mr. Clatto usually did not hide the keys because he thought some one might break into the register. Called to the tavern by the officers after the larceny, Mr. Clatto found $3.40 of the $100 still in the cash register.
Officer Fred Johanningmeyer, while on duty near Eighth and Delmar, heard an iron door slam, which was unusual for Sunday morning. He took a position and soon noticed a door at the Clatto tavern open, saw defendant peer out and look up and down the street, and then go back into the basement and close the door. He, with Officers Lampert and O'Neil, who were in the vicinity in a police car, entered the basement to investigate and found defendant standing therein. Defendant first claimed to be "the new porter." However, soon thereafter defendant stated to the officers that he was in the basement of the tavern and went to sleep; that he awakened about 4 a. m. and found he was locked in, and that he went upstairs, helped himself to some whiskey and, opening the cash register by pressing the key, took coins and bills out of the cash register. Defendant also told the officers that he left the tavern and paid a bill he owed at the Bon-Del hotel and then registered in at the Lincoln hotel; that he placed the coins under a pillow and the bills in his billfold; that he decided he wanted some more "drinks" and returned to the tavern. It was when defendant was attempting to leave that the officer's attention was directed to the tavern.
The officers and defendant went to the Lincoln hotel and defendant took them to his room. They found fifty-nine $1 bills in his billfold on the dresser, and some coins under the pillow, a total of $83.57.
The foregoing was substantial evidence of defendant's guilt of the larceny and the assignments in the motion for new trial directed against the sufficiency of the State's evidence are without merit.
Another assignment is that defendant was denied a fair trial because the State's attorney referred to him as a "spook" and a "burglar" in the argument. The record discloses that the court overruled defendant's request for a mistrial but sustained defendant's objection to the argument and admonished the jury that there was no justification for the statement, and that it was stricken from the argument and the jury were to disregard it entirely in their deliberations. Upon overruling defendant's motion for new trial the court filed a memorandum to the effect that defendant had not been prejudiced by the occurrence. The record does not establish reversible error. State v. Whipkey, 361 Mo. 1008, 238 S.W.2d 374, 378 [12, 13, 24]; State v. Neal, 350 Mo. 1002, 169 S.W.2d 686, 696[16]; State v. Cohen, Mo.Sup., 100 S.W.2d 544, 550[16, 17]; State v. Stroud, 362 Mo. 124, 240 S.W.2d 111, 113[10]; State v. Miller, 359 Mo. 327, 221 S.W.2d 724, 727.
The following assignments in the motion for new trial have frequently been held insufficient to preserve anything for appellate review; to wit: that the verdict "was a result of bias and prejudice on the part of the jury"; and that the court erred "in admitting into evidence, over the objections and exceptions of the defendant, irrelevant and immaterial evidence offered by the State." Section 547.030 RSMo 1949, V.A.M.S.; State v. Hagerman, 361 Mo. 994, 238 S.W.2d 327, 329[4]; State v. Courtney, 356 Mo. 531, 202 S.W.2d 72, 74[5]; State v. Biven, Mo.Sup., 151 S.W.2d 1114, 1119 [14].
We find no error in the record proper. The transcript discloses that defendant had a fair trial. The judgment should be and is affirmed.
WESTHUES and BARRETT, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court.
All concur.