Opinion
No. 42950.
February 9, 1953.
APPEAL FROM THE CIRCUIT COURT OF HOWELL COUNTY, GORDON DORRIS, J.
Esco V. Kell, West Plains, for appellant.
J. E. Taylor, Atty. Gen., and Will F. Berry, Jr., Asst. Atty. Gen., for respondent.
Appellant, John D. Anderson, was convicted in the Circuit Court of Howell County, Missouri, of the crime of larceny of a motor vehicle and sentenced to imprisonment in the penitentiary for a term of five years. He appealed to this court and submitted his case on an abbreviated transcript of the record made in the trial of the case.
Since appellant did not file a transcript of the evidence, we are not able to make a statement of the facts proven at the trial.
Appellant briefed the following points: First, alleged error on the part of the trial court in permitting the State to endorse on the information the name of G. H. Parker. Defendant says he was not given sufficient time to produce witnesses to contradict the evidence of this witness. Second, alleged the trial court erred in excluding evidence tending to prove that defendant had been declared insane. Third, error in permitting the State to show other crimes independent of the crime charged in this case. Fourth, error in permitting the prosecuting attorney to make the statement in his argument, "why didn't defendant bring on the other two doctors to testify for him." Fifth, that he should have been committed to a state hospital for the insane because on a trial of another offense he had been found "not guilty by reason of insanity."
As to the first point, the record shows that before trial on October 9, 1951, the prosecuting attorney asked permission to endorse the name of G. H. Parker on the information. Defendant objected on the ground that Parker lived in Memphis, Tennessee, and as we learn from the discussion between the attorneys and the trial judge, Parker was a witness to a written statement made by the appellant after his arrest in Memphis. The attorney for the defendant stated he wished to take the deposition of the other witnesses who were present at the time the statement was made. The record further shows that the court announced that Memphis was about 195 miles from West Plains, the place of the trial, and that the Frisco railroad and Highway 63 connected West Plains with Memphis. The court offered to postpone the case until October 26. The prosecuting attorney offered to waive notice of the taking of depositions. The court then asked the attorney for the defendant the following question: "Do you care to take time Mr. Kell to get the depositions?" The attorney answered, "I think for the reasons claimed in the record I won't have time to take the depositions and I will go to trial as it is." No showing was made, and we can conceive of no reason, that seventeen days would not have been sufficient time for the defendant's attorney to take depositions of the witnesses. It is apparent that the point must be ruled against the defendant.
The record fails to support appellant's contention that the trial court excluded any competent evidence to show that he was insane at the time the alleged offense was committed. In the argument, appellant referred to Exhibits D, H, I, and J which he says were not admitted in evidence. These exhibits are in the record. The ruling of the court as to their admission or rejection is not shown. Neither does the record show what, if any, objection was made by the state. Exhibit D purports to be a verdict of a jury finding John D. Anderson not guilty by reason of insanity. The record fails to show when the alleged offense was committed, where the case was tried, or that the defendant in that case was the same person as the defendant in this case. Neither is there any certification as to its correctness. Exhibit H is a letter purporting to have been written by H. C. Miles, M.D., Acting Superintendent of a state hospital in Little Rock, Arkansas. Nothing further appears in the record. Exhibit I is a statement as to the mental condition of John D. Anderson. The statement is not signed and there is nothing in the record as to who made the statement. Exhibit J purports to be an order signed by John L. Bledsoe, Judge of the Sixteenth Judicial Circuit, Sharp County, Arkansas. There is nothing to show its authenticity. Allegations of error in a motion for new trial do not prove themselves. Right action on the part of the trial court is presumed in the absence of a showing that its rulings were incorrect. Appellant has failed to show wherein the trial court erred in ruling the above exhibits not to be admissible as evidence. State ex rel. Stewart v. Blair, 357 Mo. 287, 208 S.W.2d 268, loc. cit. 275(5-10); State v. McPhearson, Mo.Sup., 92 S.W.2d 129, loc. cit. 131(5).
In the third assignment briefed, appellant says, "It was error to permit the Prosecuting Attorney to ask questions and obtain answers thereto about other crimes independent of the crime for which defendant was being tried." In the fourth assignment, he complains of a statement made during the closing argument of the prosecuting attorney. No bill of exceptions was filed so we do not know what occurred with reference to these matters and, therefore, are in no position to review these questions. State v. Parrish, Mo.Sup., 214 S.W.2d 558, loc. cit. 560(6).
In the fifth and last point briefed, appellant cites Section 546.510 RS Mo. 1949, V.A.M.S., claiming that he was found not guilty by reason of insanity when tried upon another charge and that he should have been confined in a state hospital. The record in this case is so incomplete that we cannot pass on the merits of this contention. Evidently appellant interposed insanity as a defense in this case. A jury found him guilty and thereby found that he was sane. If he is correct in his contention that he should be confined in a state hospital, the authorities at the State Penitentiary at the direction of the Governor have authority to transfer him to such an institution. Section 549.040 RSMo 1949, V.A.M.S. This court cannot on this appeal order appellant to be confined in a state hospital for the insane.
Finding no reversible error in the record, we hereby affirm the judgment.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court.
All concur.
BOHLING and BARRETT, CC., concur.