Opinion
No. 43269.
February 9, 1953.
APPEAL FROM THE CIRCUIT COURT OF WARREN COUNTY, GLOVER DOWELL, J.
Samuel Richeson, Potosi, for appellant.
J. E. Taylor, Atty. Gen., Grover C. Huston, Asst. Atty. Gen., for respondent.
An information was filed in the circuit court of Franklin County, Missouri, charging the appellant with the crime of assault his wife, Marie Duncan, with a deadly weapon. Upon application of the appellant, the case was transferred to the circuit court of Warren County where the appellant was convicted as charged, and his punishment was assessed at ten years' imprisonment in the state penitentiary.
Appellant's first assignment of error is that the court erred in permitting witness Lee Reed and others to testify concerning separate, disconnected, specific criminal offenses when it was not shown that appellant had been convicted of these prior criminal offenses.
The first witness called by appellant was R. E. Butler, a state highway patrolman. His direct testimony on behalf of appellant was as follows:
"Q. How long have you been at Union? A. The 5th of February of this year it will be 9 years.
"Q. Has this man ever caused you any trouble or — A. (Interrupting) Yes.
"Q. What was it? A. J arrested him on April 21 for disturbing the peace, on a warrant.
"Q. For fighting? A. For beating his wife.
"Q. Well, you didn't see him? A. No, sir; on a warrant.
"Q. You know that case was dismissed or thrown out, don't you? A. The case is still pending.
"Q. Do you know that? A. Yes, sir, the disposition is still pending. It was continued until May 12. The question of this other came up before the other case was heard again.
"Q. Is that how long you have known him, the last nine years? A. No, I have known him a long time.
"Q. Is there anything else against him? A. I have never had any occasion to arrest him before that.
"Mr. Roberts: That's all."
Then on cross-examination of appellant's witnesses they were asked if they had ever heard of appellant's committing other specific crimes, for instance, if they had ever heard of appellant's being charged with the crime of assault with intent to kill Sheriff John Strattmann, if they had ever heard that appellant had been charged with an assault upon John Rickey, and if the witnesses had heard that in 1948 the appellant had been charged with an assault upon Thomas Howard with a dangerous weapon or pistol.
We agree with appellant that the inquiry of witnesses as to separate, disconnected criminal acts of a defendant on trial is improper. State v. Vandiver, 149 Mo. 502, 50 S.W. 892; State v. Seay, 282 Mo. 672, 222 S.W. 427; State v. Hulbert, Mo. Sup., 228 S.W. 499. However, the appellant is in no position to complain about this evidence. He brought the matter out on direct examination of these witnesses and he cannot complain of their cross-examination with reference to the same or related subjects. State v. Palmer, 161 Mo. 152, 61 S.W. 651; State v. Hamey, 168 Mo. 167, 67 S.W. 620, 57 L.R.A. 846; State v. Dougherty, 287 Mo. 82, 228 S.W. 786; State v. Carroll, Mo.Sup., 188 S.W.2d 22.
The only other assignment of error asserted by appellant is that the trial court erred in not instructing the jury to acquit the appellant if the wounding of appellant's wife was accidental. His motion for a new trial contains no such assignment and, therefore, the error, if any, cannot be considered. State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920; State v. Ray, Mo.Sup., 225 S.W. 969; State v. Davis, Mo.Sup., 196 S.W.2d 629.
It follows the judgment of the trial court should be affirmed. It is so ordered.
All concur.