Opinion
No. 38534.
December 6, 1943.
1. CRIMINAL LAW: Statements of Defendant: Erroneous Instruction. The state's instruction on the subject of extra-judicial statements made by defendant was erroneous as singling out a portion of the evidence and giving it undue prominence to the prejudice of the accused.
2. CRIMINAL LAW: State Permitted To Show That Insanity Was Feigned. The state was entitled to offer evidence to show that certain actions of the defendant in the presence of the jury were feigned insanity, though defendant had not pleaded insanity.
Appeal from Circuit Court of St. Louis County. — Hon. John J. Wolfe, Judge.
REVERSED AND REMANDED.
I. Joel Wilson for appellant.
(1) The court erred prejudicially to defendant in reopening the case and permitting the State over objection of defendant to introduce evidence tending to show the sanity of the defendant, inasmuch as such evidence was wholly irrelevant, incompetent, immaterial and improper because the defendant entered no plea of insanity as a defense in said cause, nor did he offer, introduce or present any testimony of any witness upon such plea, and such evidence was not in rebuttal of any testimony of any witness who testified in the case. State v. Corrington, 116 S.W.2d l.c. 88; State v. Barker, 115 S.W. l.c. 1105; State v. Mary, 5 Mo. l.c. 80; State v. Forsha, 190 Mo. l.c. 327. (2) The court erred in permitting witnesses Joseph McGuire, William Grupp, Jr., James Andrews, Alois G. Ruesch, Walter Naschmidt, Rufus Hopkins, Dr. Walker Turner, Dr. Waldo Forsiman, Dr. Francis M. Barnes and Dr. James F. McFadden, to testify, after the court had erroneously opened the case over the objection of the defendant, to facts, incidents and occurrences, and to the perpetration of separate, distinct and independent offenses characterized by violence on the part of the defendant having no connection with the offense charged, all occurring several months after the commission of the alleged offense charged, and while defendant was confined in jail awaiting trial, and not for the purpose of supplying, clarifying and modifying testimony inadvertently omitted from neglect or mistake on the part of the State in the preparation and presentation of its case in chief, but for the stated purpose by the state of introducing testimony of the sanity of the defendant, an issue not introduced in evidence as a defense in the case by the defendant, the effect being an attack upon the character of defendant, whose character and reputation were not in issue. See authorities under point (1); State v. Carter, 131 S.W.2d l.c. 547; State v. Tunnell, 296 S.W. l.c. 427; State v. White, 223 S.W. l.c. 684; State v. Lebo, 98 S.W.2d l.c. 698; State v. Meyers, 82 Mo. 558, 52 Am. Rep. 389; State v. Buxton, 22 S.W.2d 635; State v. Krebs, 106 S.W.2d l.c. 429; State v. Ross, 267 S.W. l.c. 854; State v. Hepperman, 162 S.W.2d l.c. 884. (3) It was error to reopen the case and over the objection of defendant admit evidence on part of the State of acts of violence, viciousness, quarrelsomeness, felonious assaults upon other persons and the offense of breaking jail, all of which conduct and act tended to show that defendant's reputation and character was bad in the particular respect which would affect his guilt or innocence of the crime charged. See authorities under point (2); State v. Edmundson, 218 S.W. l.c. 865; State v. Baird, 288 Mo. l.c. 67, 15 A.L.R. 1035; State v. Riggs, 259 S.W. l.c. 458; State v. Barker, 249 S.W. l.c. 77. (4) The court having admitted evidence as to the sanity of the defendant over the objection of the defendant, it was error to neglect, refuse and fail to instruct the jury on that subject, inasmuch as the state had introduced testimony upon the sanity of the defendant. State v. Bidstrup, 140 S.W. 904, 237 Mo. l.c. 284; State v. Turnbo, 267 S.W. l.c. 849. (5) The court erred in giving State's Instruction 6, and in particular to the giving of the statement therein contained: "The defendant is entitled to the benefit of what he said for himself, if true," in that such statement by the court in said instruction is inapplicable to the facts in the case, and not based or justified by the evidence since there was no statement made by the defendant which was of benefit to him, and the statement was an assumption of the existence of facts, invaded the province of the jury, and was a comment on the evidence. State v. Luna, 162 S.W.2d l.c. 859; State v. Garrison, 116 S.W.2d l.c. 26; State v. Busch, 119 S.W.2d l.c. 268; State v. Hancock, 104 S.W.2d l.c. 245; State v. Duncan, 80 S.W.2d l.c. 153. (6) The court erred in giving State's Instruction 6, and in particular to the giving of the statement therein contained: "as the state is to the benefit of what he said against himself, if anything," in that such statement in said instruction invades the province of the jury to pass upon the evidence and to determine the credibility of the witnesses and the weight to be given their testimony; and that said statement in said instruction singles out and gives undue prominence to unfavorable statements of defendant to the exclusion of other evidence in the case of material facts, and is an erroneous comment upon such evidence. See authorities under point (5). (7) The court erred in directing the jury in State's Instruction 6, and in particular by the following statement therein contained: "The court instructs the jury that if you believe and find from the evidence that the defendant voluntarily made any statements, either oral or written, after the alleged offense was committed, you should consider such statement or statements altogether," because said declaration by the court was inapplicable to the facts in the case when considered in connection with the statement by the court in said instruction that, "The defendant is entitled to the benefit of what he said for himself, if true, as the state is to the benefit of what he said against himself, if anything." Inasmuch as there was no statement made by the defendant beneficial to him in any statement alleged to have been made by him after the alleged offense was committed, to be considered with statements alleged to have been made against himself which had been proved by the State, and the instruction, therefore, had the effect of telling the jury that they must consider the statements made by defendant against himself, alone; and it was an invasion of the province of the jury whose duty it was to determine for themselves the weight to be given to defendant's statements, and any witness' testimony as to it. See authorities under point (5); State v. Long, 80 S.W.2d l.c. 161.
Roy McKittrick, Attorney General, and W.J. Burke, Assistant Attorney General, for respondent.
(1) It was not error to allow the State to introduce further evidence even after the defendant had filed a demurrer to the State's case and after the State had rested. State v. Kauffman, 73 S.W.2d 217, 335 Mo. 611; State v. McGuire, 39 S.W.2d 523, 327 Mo. 1116; State v. Worton, 41 S.W. 218, 139 Mo. 526; State v. Thornhill, 76 S.W. 948, 177 Mo. 691; State v. Ray, 225 S.W. 969; State v. Eisenhour, 33 S.W. 785, 132 Mo. 140; State v. Farrar, 285 S.W. 1000; State v. Allison, 300 S.W. 1069. (2) Evidence of attempt to break jail is competent. State v. Long, 80 S.W.2d 154, 336 Mo. 630; State v. Wilkins, 100 S.W.2d 889; State v. Craft, 126 S.W.2d 177, 344 Mo. 269. (3) The court did not err in allowing the State, after it had rested and after the defendant had rested, to permit the introduction of evidence as to the sanity of the defendant. State v. Kauffman, 73 S.W.2d 217, 335 Mo. 611; State v. McGuire, 39 S.W.2d 523, 327 Mo. 1116; State v. Worton, 41 S.W. 218, 139 Mo. 526; State v. Thornhill, 76 S.W. 948, 177 Mo. 691; State v. Ray, 225 S.W. 969; State v. Eisenhour, 33 S.W. 785, 132 Mo. 140; State v. Farrar, 285 S.W. 1000; State v. Allison, 300 S.W. 1069. (4) The court did not err in not giving an insanity instruction. State v. Meier, 152 S.W.2d 59; State v. Hailey, 165 S.W.2d 422; State v. Mundy, 76 S.W.2d 1088; State v. Farmer, 111 S.W.2d 76; State v. Busch, 119 S.W.2d 265, 342 Mo. 959; State v. Nienaber, 153 S.W.2d 360. (5) The court did not err in permitting the State to introduce evidence as to jail breaks and assault to kill, which was in an attempt to break jail. State v. Long, 80 S.W.2d 154, 336 Mo. 630; State v. Wilkins, 100 S.W.2d 889; State v. Craft, 126 S.W.2d 177, 344 Mo. 269. (6) The court did not err in allowing the State to reopen its case and introduce further evidence even after demurrers had been filed. State v. Kauffman, 73 S.W.2d 217, 335 Mo. 611; State v. McGuire, 39 S.W.2d 523, 327 Mo. 1116; State v. Worton, 41 S.W. 218, 139 Mo. 526; State v. Thornhill, 76 S.W. 948, 177 Mo. 691; State v. Ray, 225 S.W. 969; State v. Eisenhour, 33 S.W. 785, 132 Mo. 140; State v. Farrar, 285 S.W. 1000; State v. Allison, 300 S.W. 1069. (7) The court did not err in instructing the jury that the defendant is entitled to the benefit of what he said for himself, if true, and that the State is entitled to the benefit of what he said against himself, if anything. State v. Busch, 119 S.W.2d 265, Par. 3, 342 Mo. 959; State v. Hershon, 45 S.W.2d 60, Pars. 5, 6, 329 Mo. 469. (8) The court did not err in allowing the State to show by witnesses in the county jail as to the acts and actions of the defendant in regard to his insanity and as to his attempting to break jail. State v. Kauffman, 73 S.W.2d 217, 335 Mo. 611; State v. McGuire, 39 S.W.2d 523, 327 Mo. 1116; State v. Worton, 41 S.W. 218, 139 Mo. 526; State v. Thornhill, 76 S.W. 948, 177 Mo. 691; State v. Ray, 225 S.W. 969; State v. Eisenhour, 33 S.W. 785, 132 Mo. 140; State v. Farrar, 285 S.W. 1000; State v. Allison, 300 S.W. 1069; State v. Long, 80 S.W.2d 154, 336 Mo. 630; State v. Wilkins, 100 S.W.2d 889; State v. Craft, 126 S.W.2d 177, 344 Mo. 269.
Defendant was one of four persons jointly charged in the Circuit Court of St. Louis County with murder in the first degree in having shot and killed Martin Twillman in said county on September 30, 1941. On his separate trial, he was convicted and sentenced to the extreme penalty, and he appeals.
A like judgment and sentence was appealed by one of his co-defendants, and it was reversed and the case remanded, at this term, for error in the giving of an instruction on the subject of extra-judicial statements made by defendant. [State v. Talbert, 351 Mo. 791, 174 S.W.2d 144.] Said instruction was held to be erroneous as singling out a portion of the evidence and giving it undue prominence to the prejudice of the accused. The identical instruction was given in this, the companion case, under substantially the same facts, for which error, and upon the authority of that case, and those cited therein, a new trial must be ordered. For this reason, the facts will not be noticed other than by referring the reader to the statement thereof in the Talbert case, supra.
Defendant is vehement in his attack, raised in a variety of ways in eight separate assignments, upon the alleged error of the court in permitting the state to reopen its case for the purpose of hearing numerous witnesses, lay and medical, who testified in substance and effect, that defendant was feigning insanity. Defendant did not take the stand, nor did he call any witnesses in his own behalf, but stood on his demurrer offered at the close of the whole case. It is recited in the record, and not disputed here, that throughout the three-day trial, he constantly mumbled, muttered, twitched, twisted and squirmed about; he tore his clothing; he attempted to pull the rungs out of his own chair, and others near at hand; he undertook to pry open the drawers of the counsel table, and otherwise demeaned himself as an insane person. Just before the state rested, the prosecutor undertook to ascertain, by direct inquiry of defendant's counsel (as had been done previously), if the accused would testify, and failing to receive a definite answer, rested the state's case. Defendant offered a demurrer. It was overruled. The defendant then rested, and again offered a demurrer. At that stage of the proceedings, the prosecutor requested, and was granted leave, to introduce the further evidence above-mentioned.
It is true defendant did not formally interpose the defense of insanity (nor any other, for that matter), but the jury was bound to observe, and in the very nature of things, be influenced by, his demonstrations which could only be interpreted as manifestations of a disordered mind. We think the state was not required to remain silent, and permit such exhibitions to go unchallenged and unexplained when it had an abundance of proof to show their real nature, for this court has said, "Like flight, the feigning of a state of mind which in itself, if genuine, would constitute a defense to the charge or, at least a bar to the trial, is indicative of a disposition to evade justice, and tends to prove guilt." [State v. Stevens, 242 Mo. 439, 147 S.W. 97.] [588] Feigning of insanity by a defendant may be shown on the theory that it amounts to a species of fabrication of evidence, and as indicating the defendant was himself conscious of his own guilt, and that his defense could not be made out by a production of the truth. [Waller v. United States, 179 F. 810, 31 L.R.A. (N.S.) 113.] "It is competent for the commonwealth to prove that the accused, after committing the act, or having been accused of it, fled or concealed himself, or was guilty of any conduct inconsistent with his innocence. If the appellant did feign insanity, the jury had a right to infer from that fact that he, having no meritorious defense, proposed to fix up a spurious defense, as the only available one against the truth of the charge; and, such conduct being inconsistent with innocence, it was proper for the jury to consider it for what it was worth." [Basham v. Commonwealth, 87 Ky. 440, 10 Ky. L. 434, 9 S.W. 284.] We think the court was fully justified, and exercised a sound discretion, in permitting the state to reopen the case for the purpose of receiving the evidence about which complaint is made.
The other errors assigned are not likely to recur on another trial, and so will not be treated. For the error noted, the judgment is reversed, and the case remanded. All concur.