Opinion
No. 41056.
December 13, 1948.
1. CRIMINAL LAW: Credibility of Witnesses: Erroneous Instruction. An instruction that "if you believe that any witness has knowingly and willfully sworn falsely to any material fact, you should reject any or all portion of such witness' testimony" invades the province of the jury.
2. CRIMINAL LAW: Homicide: Accidental Homicide: Instruction Required. Defendant was entitled to an instruction on accidental homicide while acting in self-defense as against third parties.
3. CRIMINAL LAW: Homicide: Evidence of Threat Admissible. Evidence of a threat made in another state was admissible.
4. CRIMINAL LAW: Prior Conviction: Variance Immaterial. Where the indictment alleged a conviction of robbery in the first degree, evidence of a conviction of robbery in the first degree by means of a dangerous and deadly weapon was an immaterial variation.
5. CRIMINAL LAW: Prior Conviction: Allegations in Indictment Sufficient. The allegations in the indictment concerning the prior conviction were sufficient without alleging the date of defendant's discharge from the penitentiary.
6. CRIMINAL LAW: Constitutional Law: Silence of Accused. Silence of the accused before arrest may be shown.
7. CRIMINAL LAW: Witnesses: Improper Impeachment. The trial court properly restricted cross-examination which would tend to impeach the witness as to her chastity.
Appeal from Circuit Court of City of St. Louis. — Hon. Waldo C. Mayfield, Judge.
REVERSED AND REMANDED.
Morris A. Shenker for appellant.
(1) The court erred in giving to the jury that part of Instruction 6 which stated that if they (the jury) believed that "any witness has knowingly and wilfully sworn falsely to any material fact", they "should reject all or any portion of such witness' testimony." This instruction was erroneous in that it told the jury that it was their duty to disregard such testimony, and thus was prejudicial to this defendant. State v. Cushing, 29 Mo. 215; State v. Miller, 234 S.W. 813; State v. Mounts, 106 Mo. 226, 17 S.W. 226; State v. Vansant, 80 Mo. 67; State v. Waller, 259 S.W. 445. (2) The court erred in refusing to declare a mistrial, when, although the court had previously instructed both attorneys that no reference was to be made to any alleged aliases attributed to this defendant, State's witness Otto Peters read into the record one such alleged alias, this being highly improper and prejudicial to the defendant. D'Allesandro v. United States, 90 F.2d 641; Petrilli v. United States, 129 F.2d 101; State v. Richards, 334 Mo. 485, 67 S.W.2d 58. (3) The court erred in admitting into evidence testimony by the State's witness Reva Crowe, of an alleged prior threat made by the defendant to the deceased, in that such threat, if it existed at all, was too remote to be material to the points at issue in this case, and that no basis was offered for its introduction, and that such testimony prejudiced the minds of the jurors against the defendant. State v. Bass, 157 S.W. 782; State v. Bowenkamp, 39 S.W.2d 753; State v. Dieckman, 11 Mo. App. 538; State v. Houston, 292 S.W. 728. (4) The court erred in refusing to strike from the indictment, in overruling defendant's objection and in admitting into evidence alleged evidence of prior convictions of the defendant, in that these prior convictions were not properly charged in the indictment in order to bring this case within the Habitual Criminal Act. The indictment was faulty in that it failed to allege any date of discharge of the defendant from the penitentiary. R.S. 1939, sec. 4854; State v. Austin, 113 Mo. 538, 21 S.W. 31; State v. Brinkley, 193 S.W.2d 49; State v. Brown, 115 Mo. 409, 22 S.W. 367; State v. Hamilton, 340 Mo. 768, 102 S.W.2d 642; State v. Krebs, 336 Mo. 516, 80 S.W.2d 196; State v. Sumpter, 335 Mo. 620, 73 S.W.2d 760. (5) The court erred in overruling defendant's motion to strike evidence introduced purportedly to show prior convictions of this defendant, in that the evidence thus introduced was in no way consistent, or tending to prove the pleading set forth in the indictment. Thus there was no proof to show such prior convictions, or that defendant was subject to the Habitual Criminal Act, and the allowance of such evidence in the record unduly biased and prejudiced the minds of the jurors against the defendant and deprived him of a fair and impartial trial. R.S. 1939, secs. 4450, 4453; State v. Bresse, 326 Mo. 885, 33 S.W.2d 919; State v. Donnell, 353 Mo. 878, 184 S.W.2d 1008; State v. Kimbrough, 350 Mo. 609, 166 S.W.2d 1077; State v. Murphy, 345 Mo. 358, 133 S.W.2d 398; State v. Taylor, 323 Mo. 15, 18 S.W.2d 474; State v. York, 142 S.W.2d 49. (6) The court erred in failing to instruct the jury on all the law applicable to the case and particularly on the right of self-defense and on killings due to accident, this in view of the testimony of the defendant in regard to an alleged altercation and in regard to his having been attacked. This testimony brought this question to issue, and therefore, since it is the duty of the trial judge to instruct the jury on all the law applicable to the case as brought forth by the evidence presented, it was incumbent on the trial court to instruct on these two vital matters. R.S. 1939, secs. 4070, 4379, 4380; State v. Aitkens, 352 Mo. 746, 179 S.W.2d 84; State v. Brinkley, 193 S.W.2d 49; State v. Crowley, 345 Mo. 1177, 139 S.W.2d 473; State v. Shiles, 188 S.W.2d 7. (7) The court erred in giving a substituted instruction to the jurors, after they had deliberated for a considerable time, and in failing to read this instruction to the jurors personally, thus depriving the counsel for the defendant of the right to argue this instruction to the jury, all to the prejudice of this defendant. 23 C.J.S., sec. 1376; R.S. 1939, sec. 4070; State v. Meagher, 49 Mo. App. 571. (8) The court erred in admitting into the record and in failing to strike, over the objection and exception of the defendant's counsel, much evidence which was hearsay testimony, which evidence unduly and unjustifiably biased and prejudiced the minds of the jurors against this defendant. State v. Huff, 161 Mo. 459, 61 S.W. 900; State v. Loeb, 190 S.W. 299; State v. Patton, 255 Mo. 245, 164 S.W. 223; State v. Powell, 217 S.W. 35; State v. Wright, 4 S.W.2d 456. (9) The court erred in admitting and refusing to strike testimony, over the objection and exception of defendant's counsel, which testimony was given by certain police officers testifying for the State, to the effect that the defendant had made no statement upon being questioned, this being an invasion and an unjustified comment on the defendant's constitutional right of "no comment." Constitution of 1945, Art. I, Sec. 19; State v. Bowdry, 346 Mo. 1090, 145 S.W.2d 127; State v. Conway, 154 Mo. 128; State v. Fitzgerald, 201 S.W. 86; State v. Hale, 156 Mo. 102, 568 S.W. 881; State v. Hogan, 252 S.W. 387; State v. Howard, 102 Mo. 142, 14 S.W. 937; State v. Mullins, 101 Mo. 514, 14 S.W. 625; State v. Swisher, 186 Mo. 1, 84 S.W. 911; State v. Young, 99 Mo. 666, 12 S.W. 879. (10) The court erred in making improper comments and interpretations on the evidence presented in the case, and thus in conveying to the jury the court's opinion as to matters in issue — all to the prejudice of this defendant. 23 C.J.S., sec. 1150; R.S. 1939, sec. 4083; State v. Davis, 217 S.W. 87; State v. Drew, 213 S.W. 106; State v. Eudaly, 188 S.W. 110; State v. Hyde, 234 Mo. 200, 136 S.W. 316; State v. Taylor, 293 Mo. 210, 238 S.W. 489. (11) The court erred in sustaining certain objections to defendant's cross-examination of State witnesses, thereby depriving defendant of his right to cross-examine witnesses for the purpose of testing and impeaching their credibility, and showing their possible interest in the result of the present case. State v. Boyd, 178 Mo. 2, 76 S.W. 979; State v. Breeden, 58 Mo. 507; State v. Davis, 284 Mo. 695, 225 S.W. 707; State v. Decker, 616 Mo. App. 396, 143 S.W. 544; State v. Grant, 76 Mo. 236; State v. Hack, 118 Mo. 92, 23 S.W. 1089; State v. Hamilton, 55 Mo. 520; State v. Miller, 71 Mo. 590; State v. Pollard, 174 Mo. 607, 74 S.W. 969; State v. Scott, 332 Mo. 255, 58 S.W.2d 275; State v. Shields, 13 Mo. 236.
J.E. Taylor, Attorney General, and Samuel M. Watson, Assistant Attorney General, for respondent.
(1) It was not error for the court to give to the jury that part of Instruction 6 which reads as follows: "In this connection you are further instructed that if you believe that any witness has knowingly or wilfully sworn falsely to any material fact in evidence, you should reject all or any portion of such witness' testimony," for the reason that the use of the words "or any portion of such witness' testimony" modifies the meaning of the word "should" and is sufficient to convey to the minds of the jury that there might be portions of such witness' testimony proper for consideration by the jury. State v. Mounce, 106 Mo. 226, 17 S.W. 226. (2) It was not error for the court to deny defendant's motion for a declaration of a mistrial shown in the quotation from the bill of exceptions set forth on page 23 of appellant's brief, because defendant's counsel, before moving for declaration of a mistrial, had elected another remedy for the protection of defendant from any alleged prejudice engendered by the reading of the alleged alias, said remedy being inconsistent with a mistrial remedy, and had moved the court for said remedy and had been accorded the remedy by the court by the court's sustaining of defendant's motion that the reference to the alias be stricken and that the jury be instructed to disregard it, said instruction to disregard so given at defendant's request being inconsistent with the declaration of mistrial. Petrilli v. United States, 129 F.2d 101. (3) The court did not err in admitting in evidence the testimony of Reva Crowe to the effect that in California in 1945 Roy Whipkey said to Bobby Jean Kerr "If you ever leave me or I ever catch you with another man I'll kill you" and the court was right in overruling both the motion to strike and the motion for mistrial. State v. Vass, 157 S.W. 782; State v. Houston, 292 S.W. 728. (4) It was not error for the court to overrule defendant's motion to strike evidence showing prior convictions of appellant, such evidence tending to sustain the allegations of the indictment. Sec. 3702, R.S. 1939; State v. Taylor, 323 Mo. 15, 18 S.W.2d 474. (5) The court did not fail to instruct the jury on all of the law applicable to the case, and in view of the fact that there is no evidence in the record to the effect that the deceased menaced the life or security of the appellant Whipkey who is alleged in the indictment to have murdered deceased, the issue of self-defense is not in this case and no instruction on the law of self-defense was necessary. Sec. 4070, R.S. 1939; State v. Crowley, 345 Mo. 1177, 139 S.W.2d 473. (6) It was not error for the court to withdraw Instruction 5 from the consideration of the jury and send to the jury a substitute Instruction 5, nor was it error for the court to fail to read said substitute instruction to the jury. Sec. 4070, R.S. 1939; State v. Meagher, 49 Mo. App. 571; Dowzelot v. Rawlings, 58 Mo. 75. (7) It was not error for the court to admit, over the objection of counsel for the defendant, testimony of police officers to the effect that defendant made no statement when questioned by them relative to the alleged crime. State v. Murphy, 345 Mo. 353, 133 S.W.2d 398; State v. Hardin, 324 Mo. 28, 21 S.W.2d 758. (8) It was not error for the court with reference to proffered evidence of defendant to the effect that Robert Povilat was getting married on August 26, 1945, to comment to the effect that such proffered evidence, whether verbal or documentary, was inadmissible, it being the prerogative of the court to state in open court, when excluding evidence, that same is inadmissible and such comment by the court did not amount to an improper comment on the evidence in the case by the court. State v. Curtis, 23 S.W.2d 122. (9) The following statement by the court: "I suggest to you, it would be impossible for this witness to know where he went unless she accompanied him, and the fact that he was in or out of service does not have any bearing on this case at all" does not constitute an improper comment by the court upon evidence in the case, but is merely a reason given by the court for excluding the proffered evidence. State v. Curtis, 23 S.W.2d 122. (10) The following statement by the court: "Mr. Burns, you are limited to what the defendant was examined on in his direct examination in chief by his own attorney. Unless they waive it, I am bound to hold to that ruling. I will sustain the objection." Appellant's brief does not constitute an improper comment by the court on the evidence. State v. Curtis, 23 S.W.2d 122. (11) It was not error for the court to sustain objections to questions addressed to Reva Crowe pertaining to her former marital status and to the fact of the existence of her illegitimate child.
Appellant, Whipkey, appealed from a judgment of conviction of murder in the second degree. The punishment assessed was life imprisonment.
The state's evidence justifies the following statement. On the evening of July 29, 1946, at about 8:30, there were eight or more persons in a tavern located at 2023 North Broadway, St. Louis, Missouri. Among those present were Lewis Berg and deceased, Bobbie Jean Kerr. Berg purchased drinks for those sitting at the bar and while in the act of paying for them defendant entered and immediately went up to Berg and Bobbie Jean. One witness stated that he saw defendant stab Berg in the back, whereupon Bobbie Jean screamed; that the defendant then immediately stabbed Bobbie Jean three times. One of the men present picked up a chair and struck the defendant and a fight followed. Bobbie Jean ran from the tavern and collapsed on the sidewalk. Berg fell upon the floor of the tavern. Defendant ran from the tavern, pursued by a number of men, and while in the street attempted to cut his own throat. He then ran back to where Bobbie Jean was lying on the sidewalk, face down, and stabbed her three times in the back. She was taken to a hospital where she was pronounced dead and from there her body was taken to a morgue. A number of witnesses testified appellant had a butcher-knife in his hands. The above statement of what happened is supported by the evidence of practically all of the eye-witnesses. The state's evidence disclosed that the defendant and Bobbie Jean had been keeping company [494] and had lived together in the State of California. The state also produced evidence that while in California the defendant had threatened that if Bobbie Jean ever left him, or if he ever found her with another man, he would kill her. There was evidence that on the evening of the tragedy the defendant was looking for deceased and called at her home three times.
Defendant testified in his own behalf. His version was about as follows: That he walked into the tavern, saw a number of people but knew none of them; that he did not see the deceased or Berg, but that they came in later and were standing close by when the man next to him turned over a glass of beer and immediately grabbed his shoulder and struck him, whereupon a free-for-all ensued; that he saw Bobbie Jean and that she attempted to stop the fight, in particular she tried to prevent the others from striking him, the defendant. He testified he loved Bobbie Jean and would not have hurt her under any circumstances. He denied making any threats against her when in California and stated that he had no knife, stabbed no one and only defended himself against the assaults made upon him. Defendant was taken to a hospital and his most serious wound was found to be a cut across the throat which had severed the windpipe. He also had other bruises and cuts.
Appellant briefed many points seeking a reversal of the conviction. We will discuss two of these which in our opinion require the granting of a new trial. Other points will be considered very briefly. The first question briefed is, that the court erred in giving instruction number six on the credibility of witnesses. The portion of the instruction alleged to be erroneous is the "falsus in uno, falsus in omnibus" clause. It reads as follows:
"In this connection you are further instructed that if you believe that any witness has knowingly and wilfully sworn falsely to any material fact, you should reject all or any portion of such witness' testimony."
We are of the opinion that the clause, ". . . you should reject all or any portion of such witness' testimony," invades the province of the jury and renders the instruction erroneous. See 23 C.J.S., sec. 1180, page 720; State v. Cushing, 29 Mo. 215; State v. Waller, 259 S.W. 445; State v. Tucker, 62 S.W.2d 453, l.c. 456 (8, 9), 333 Mo. 171, l.c. 179 (8). Such instructions should inform the jury in substance that if any witness has wilfully and knowingly sworn falsely as to any material fact in issue it should disregard such false testimony and may reject any or all such witness' testimony. 23 C.J.S. 720, sec. 1180; State v. Mounce, 17 S.W. 226, 106 Mo. 226. It is within the province of the jury and not the court to determine whether any or all of a witness' evidence is to be believed. That is so elementary that further comment is not necessary.
Appellant also contends that the court should have instructed on self-defense and accident. The state claims that the evidence did not justify the giving of either instruction. To decide this question we must examine the record and if there is evidence to support appellant's theory, then we must hold instructions should have been given covering that theory. Appellant's evidence, as above briefly outlined, is that he was assaulted by an unknown man and a general fight followed; that all he did was to defend himself. The state introduced evidence that when defendant ran from the building he was pursued by two men who had pieces of broken chairs in their hands. The defendant further testified that while he was in the tavern the following occurred:
"Q. Did you see anyone there besides Mr. Berg and Miss Kerr that you knew? A. No. I don't believe I did.
"Q. You say you never saw this State's Exhibit A in your lifetime before you saw it in the courtroom, is that right? A. Repeat that question, will you please?
"Q. You say you never in you lifetime saw State's Exhibit A, this knife, is that right? A. That's right.
[495] "Q. You don't know who cut you nor with what you were cut, is that right? A. That's right.
"Q. Didn't see anybody have a knife? A. No, I couldn't say truthfully that I did.
"Q. Do you know where you were when you lost consciousness? A. Inside the tavern some place; I don't know.
"Q. Were you inside or outside? A. Inside. I don't remember the outside."
. . .
"Q. I will change that: Mr. Whipkey, did you do everything you could to defend yourself? A. Yes, sir.
"Q. Did you swing at people the same as they were swinging at you? A. Yes, sir.
"MR. BURNS: Your honor, I want to object to that.
"THE COURT: Overruled.
"Q. Bobbie Jean was trying to stop them from hitting you, is that right? A. To the best of my knowledge that's what she was doing.
"Q. She was right in the midst of them, is that right? A. That's correct.
"Q. Did you grapple for different things? A. That's right.
"Q. Chairs and any objects that were available at that time, is that correct? A. That's right.
"Q. Do you recall every having this knife in your hand? A. No."
It will be noted that appellant did not claim he struck deceased in self-defense. Indeed, he said she was trying to aid him and prevent others from striking him. If in the general fight defendant struck at the parties assaulting him and accidentally struck the deceased causing her death it was accidental homicide. See 40 C.J.S., page 981, sec. 112 (c). However, to entitle him to an acquittal on that theory the defendant must have been justified in acting in self-defense as against the third parties. In such a situation instructions should be given guiding the jury in deciding the question. See State v. Stallings, 334 Mo. 1, 64 S.W.2d 643, l.c. 644 (2); State v. Stallings, 326 Mo. 1037, 33 S.W.2d 914, l.c. 916 (2); State v. Crowley, 345 Mo. 1177, 139 S.W.2d 473.
As mentioned above, a number of points were briefed which we need not consider. For example, there was a slight change made in one of the instructions after the jury had deliberated on a verdict for some time. Another point was based on reference being made to the defendant by an alias. The record shows that this was entirely unintentional.
We will now consider briefly a number of other minor points preserved for review. Appellant says the trial court erred in admitting evidence of a threat alleged to have been made by defendant against the deceased while in the State of California. Appellant relies upon the remoteness of the threat. We deem the evidence entirely competent. The defendant is alleged to have said he would kill the deceased if he found her with another man. That is what the state contends the defendant did. The threat, if made, was evidence of motive and even if rather remote was admissible. 40 C.J.S., page 1178, sec's. 242, 243.
Appellant urges that evidence of a prior conviction was erroneously admitted because the indictment alleged the defendant had been convicted of robbery in the first degree but that the state offered evidence the defendant had been convicted of robbery in the first degree by means of a dangerous and deadly weapon. There is no merit in this point. The variance, if there was any, was immaterial. Robbery by means of a deadly and dangerous weapon is in fact robbery in the first degree. The statute so designates the offense. See sec's. 4450 and 4453 Mo. R.S.A., R.S. Mo., 1939. Sec. 4453 merely fixes a greater punishment in case a robbery is perpetrated by means of a dangerous and deadly weapon. In State v. Shuls, 44 S.W.2d 94, 329 Mo. 245, we held that robbery in the first degree included an act committed with or without a dangerous weapon. See also State v. Curtis, 23 S.W.2d 122, 324 Mo. 58.
Again, appellant says the trial court should have stricken from the indictment all reference to a prior conviction because the indictment failed to allege the date of defendant's discharge from the [496] penitentiary. We hold this was not necessary. The indictment charged that ". . . the said Roy Howard Whipkey, aliases, was duly discharged from said penitentiary of the State of Missouri after and upon lawful compliance with said sentence." This was sufficient.
After the police arrived on the scene they asked defendant about the occurrence in question and he refused to answer. The state was permitted to prove this by the police officers. Defendant objected but the objection was overruled. We discussed this question in the case of State v. Battles, 357 Mo. 1223, 212 S.W.2d 753, l.c. 756, 757 (6) (7, 8) (9) (10). On a retrial the opinion in the Battles case will serve as a guide. We need not lengthen this opinion by repeating what was there said.
The last point briefed is that the trial court unduly restricted defendant's attorney in his cross-examination of state's witnesses, particularly as to a witness who was asked if she had been guilty of certain conduct, an affirmative answer to which would have tended to discredit her as to her chastity. The extent of such examinations rests largely within the discretion of the trial court and unless clearly abused an appellate court will not interfere. 70 C.J. 894, sec. 1098. We must also note that since the case of State v. Williams, 100 A.L.R. 1503, 337 Mo. 884, 87 S.W.2d 175, the reputation of a witness for truth and veracity cannot be impeached, unless put in issue by the other party, by showing he bears a bad reputation for morality. It would seem only logical then that the same should be true as applied to cross-examination on specific acts of conduct, affirmative answers to which would tend to impeach the witness as to chastity. 70 C.J. 874, sec. 1093; 28 R.C.L. 610, sec. 200; Butler v. State, 113 So. 699, l.c. 700 (2); Kolb v. Union R. Co., 23 R.I. 72, 49 A. 392. What was said in the Williams case on this subject is also applicable to the question now presented for review. No useful purpose will be served by again considering the matter at length. In the case of State v. Bagby, 338 Mo. 951, 93 S.W.2d 241, l.c. 248, a witness was asked if he did not make his place a hideout for notorious criminals. This court held that the state had a right to ask such a question for the purpose of discrediting the witness by impeaching his character. The question now before us was not discussed or presented for review. The witness in that case was a bondsman for a defendant charged with robbery. If the witness maintained a hideout for notorious criminals it tended to discredit him as a witness because of his friendliness and interest in the defendant. That is a different situation than what we have before us now. Evidence of moral character and chastity is often made an issue in a case and when this is done evidence on the subject is admissible. See the case of State v. Ferguson, 182 S.W.2d 38, l.c. 41, 42 (7-9) (10.11), 353 Mo. 46, l.c. 53 (3). We hold the trial court did not err in its ruling in sustaining the objection to the cross-examination.
For the error indicated the judgment is reversed and the cause remanded for retrial. Bohling and Barrett, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur except Leedy, J., absent.