State v. Gordon

55 S.W. 76, 153 Mo. 576, 1900 Mo. LEXIS 138

• Court: Supreme Court of Missouri
• Decided: January 23, 1900
• Status: Published

Opinion

SHERWOOD, J.

Robbery in tbe first degree was tbe crime charged and established against defendant and Frank Sntter. Defendant alone appealed from the judgment rendered.

The instructions were such as have frequently received the sanction of this court and covered every point necessary for the information of the jury, and therefore there is no ground for complaint that the court did not fully instruct the jury. But in addition to that, defendant saved no exceptions to the áction of the court because it failed to instruct, etc. [State v. Cantlin, 118 Mo. 100.]

Relative to the motion for a new trial and the affidavits in support thereof, it is sufficient to say that defendant’s affidavit is not found among them, nor any excuse given for its absence. [State v. McLaughlin, 27 Mo. 111; State v. Campbell, 115 Mo. 393.]

A defect not noticed by counsel, appears in the record proper; it is this, the record in relation to the verdict recites 3 “We, the jury in the above entitled cause; find each of the defendants guilty of robbery in the first degree, as charged in the indictment, and assess the punishment at imprisonment the penitentiary for five years.”

Section 4228, Revised Statutes, 1889, requires that when there are several defendants jointly tried, the punishment of each in case of conviction must be assessed separately. This was not done in the case at bar. The court, therefore, should either have refused to' receive the verdict and suggested its being put in proper form or failing in this should itself have assessed and declared the punishment (R. S. 1889, sec. 4230) which the jury in this case by their defective verdict failed to do. s

For this cause alone the judgment must be reversed and the cause remanded with directions to the trial court to bring the defendant before it and having done so to proceed to assess and declare his punishment and otherwise proceed in the cause as required by law.

And it is ordered that defendant recover only the cost of this appeal.

All concur.