State v. Lucas , 316 Mo. 904 ( 1927 )

UPON MOTION FOR REHEARING. In the original opinion we held that appellant had not properly brought to this court remarks of counsel complained of in assignment twelve in the motion for new trial. The copy of the motion for new trial did not contain the matter complained of, but referred to pages 249 to 251 of the bill of exceptions. As the bill of exceptions was not and could not have been prepared until some time after the motion for new trial was prepared and filed below, we very naturally concluded that appellant had not brought the complete motion for new trial here. By leave and in connection with his motion for rehearing, appellant has filed a certified copy of the motion for new trial, and it appears therefrom that the matter contained in pages 249 to 251 of the bill of exceptions was actually attached to the motion for new trial as pages B and C thereof. This was not clearly shown by the copy of the motion for new trial set forth in the bill of exceptions.

There is not enough set out in the first argument of the State's counsel complained of to show the connection in which the argument was made. We are therefore not in a position to rule intelligently concerning the right of counsel to argue that "these defendants fell out." The court ruled that there was no direct statement that they fell out, but that there was evidence that they changed attorneys. We are unable to perceive how the argument could have prejudiced the defense, even if not based upon the evidence.

The objection to argument that a man who makes "this damnable concoction they call moonshine whiskey now and sell it to his neighbor is no better than a common murderer in my humble opinion," was a general objection. It was: "We are objecting to such remarks in this case." An attempted objection in that form constitutes no legal objection at all, because it does not advise the court of the particular ground of the objection.

Not only that, but the excerpt from the argument does not show whether counsel was referring to activities of appellant or of Burgess (who was not on trial) or of some mere witness in the case.

The third complaint cannot be considered at all because it affirmatively appears from the record brought here that the objection made by counsel for appellant was made in an undertone and not in the hearing of the court. The court made no ruling for the evident reason it did not know any objection was being made. We find no merit in the complaints against the argument which have been brought here by the certified transcript of the motion for new trial.

We have carefully gone over the other matters complained of in the motion for rehearing and find that they were fully and sufficiently considered in the original opinion. We are satisfied that those points were properly disposed of in the original opinion. The motion for rehearing is overruled. All concur.