Opinion
July 3, 1940.
1. MANSLAUGHTER. On the trial of defendant for manslaughter where the evidence showed that defendant and three other members of a union had attempted to induce the deceased to join the union, and the defendant agreed to pay one of the other three engaged in the assault which resulted in the death of the man assaulted, the evidence was sufficient to sustain a conviction.
2. CRIMINAL LAW: Right to Have a Case Dismissed. Where defendant charged with manslaughter was not tried after four terms of court had passed without a trial, he was not entitled to have the case dismissed where the record does not show that he was ever ready for trial, but that he had asked for further time to prepare his defense, and the case was never continued at the request of the State. [Secs. 3697-3699, R.S. 1929.]
The purpose of the statute is to insure a defendant a speedy trial and to prevent laches on the part of the State.
3. CRIMINAL LAW: Right to Inspect Documents. On the trial of defendant for manslaughter alleged to have been committed by defendant and three others, where the State's chief witness was one of the others and had pleaded guilty, the court did not err in refusing defendant's counsel permission to inspect an alleged written statement of that witness for the State, where it was shown that a police officer had read the statement and it was published in a St. Louis paper and the defendant at no time during the trial requested to inspect the statement.
4. CRIMINAL LAW: Co-indictee. On the trial of defendant for manslaughter a co-indictee who had pleaded guilty was a competent witness, although he had confessed and had been promised a lighter sentence if he would testify for the State, where the defendant was permitted to disclose to the jury all the facts and circumstances with reference to that plea of guilty of the co-indictee.
Since the co-indictee had entered a plea of guilty prior to the trial, he was a competent witness for the State; his case had been disposed of and the disqualification mentioned in Section 3691, Revised Statutes 1929, did not apply.
5. CRIMINAL LAW: Cross-examination of Defendant. On the trial of defendant for manslaughter the court did not err in permitting a cross-examination of defendant where he had testified in detail as to his whereabouts on the day of the homicide and that he was not at the scene of the crime.
It was proper for the cross-examiner to question him concerning statements made to police officers inconsistent with his evidence.
Where defendant denied having made statements to the police officers the State was entitled to introduce evidence tending to show that he did make the alleged statements.
6. CRIMINAL LAW: State's Attorney. On the trial of defendant for manslaughter, commited by him and three others, there was no error in permitting the State's attorney to comment on the fact that one co-indictee was not called to testify for defendant, since another co-indictee had testified for the State, and the first co-indictee could have been used as a witness by the defendant to refute the evidence of that one.
7. CRIMINAL LAW: Statement of Prosecutor. A prosecutor has a right to comment on the evidence and credibility of witnesses from the State's point of view, and on the trial of defendant for manslaughter the court did not err in permitting the prosecuting attorney in his argument to the jury to say that a witness for the defendant had stated a deliberate falsehood.
Matters with reference to arguments to juries must to a great degree rest within the sound discretion of the trial court.
8. CRIMINAL LAW: Trials: Converse Instructions. Converse of positive instructions given for the State should be given when requested by the defendant, but where the record does not show that appellant offered any converse instruction, no error occurred in the court's failure to give such instruction.
Where at the close of the case, before instructions were read, defendant's counsel objected to an instruction for the State which purported to cover the whole case and did not cover all the issues in the case, but counsel for defendant refused to state in what respect the instruction did not cover all the law of the case, no error occurred in overruling the objection.
Appeal from Circuit Court of City of St. Louis. — Hon. Robert L. Aronson, Judge.
AFFIRMED.
William J. Becker for appellant.
(1) A defendant held to bail must be tried within the fourth term after the return of the indictment. Secs. 3697, 3698, 3699, R.S. 1929; State ex rel. v. Wurdemann, 246 S.W. 189, 295 Mo. 566. (2) Where a written statement has been given to the circuit attorney, which is material to the defense, for the purpose of impeaching the State's witness, it is error to overrule the defendant's motion to inspect such written statement. State v. Trippett, 296 S.W. 135. (3) Where two persons are jointly indicted for the same offense one may not testify for the State against the other while his case is undisposed of. State v. Chye Chiagk, 4 S.W. 704, 92 Mo. 395; State v. Reppley, 213 S.W. 477, 278 Mo. 333; State v. Hayes, 247 S.W. 165. (4) The testimony of the alleged accomplice Lane was inadmissible because it was given in consideration of a promise of the circuit attorney to recommend a punishment of one year in the city jail. State v. Miller, 13 S.W. 1051, 100 Mo. 606. (5) Cross-examination of the defendant on matters not part of his examination in chief are prohibited by law. R.S. 1929, sec. 3692; State v. Edelon, 231 S.W. 585; State v. Bulla, 1 S.W. 764, 89 Mo. 595; State v. Grant, 45 S.W. 1102, 144 Mo. 56; State v. Nicholson, 7 S.W.2d 375. (6) Prejudicial and improper cross-examination of a defendant, particularly when it goes outside of the scope of the direct examination is reversible error. State v. Pierson, 56 S.W.2d 124; State v. Aurentz, 263 S.W. 178; State v. Lasson, 292 Mo. 155, 238 S.W. 101; State v. Wellman, 253 Mo. 314, 161 S.W. 795; State v. Webb, 254 Mo. 435, 162 S.W. 622; State v. Bowman, 272 Mo. 494, 199 S.W. 164; State v. Goodwin, 271 Mo. 73, 195 S.W. 725; State v. Culpepper, 295 Mo. 249, 238 S.W. 801; State v. Sharp, 235 Mo. 287, 135 S.W. 488; State v. Barri, 199 S.W. 138; State v. Nicholson, 7 S.W.2d 375. (7) Neither the defendant, nor any other witness, can be cross-examined as to collateral facts not brought out on the examination of the defendant in chief, with view of impeaching him by contradicting him. McFadden v. Catron, 25 S.W. 516, 120 Mo. 252. (8) A defendant should not be cross-examined on matters not testified to in chief, under the pretense that such cross-examination is for the purposes of impeachment, when in truth its only purpose was to create an excuse to permit the State's witness (police officers) to take the stand in rebuttal and thereupon change the original testimony of the State's witnesses and impeach themselves. R.S. 1929, sec. 3692; State v. Tripett, 296 S.W. 132. (9) Questions asked on cross-examination should be excluded, when they assume as true, a damaging state of facts, where there was no reason to believe that there was a foundation of truth for what was so assumed. Bonslett v. New York Life Ins. Co., 190 S.W. 874; 70 C.J., p. 1156, sec. 1341. (10) Where particular evidence is not admissible in chief, the State cannot cross-examine the defendant in a criminal case as to transactions not alluded to on his direct examination, for the purpose of laying the foundation for impeachment by rebuttal testimony, nor is the State permitted, by such cross-examination to lay the foundation for attempted impeachment, and then on rebuttal prove facts which it was compelled to establish by its evidence in chief. 70 C.J. 799, sec. 1003; State v. Yorham, 221 N.W. 493, 206 Iowa 833. (11) Cross-examination of the defendant for the purpose of laying a foundation for his impeachment cannot extend to former inconsistent statements which he did not in fact make, or to statements which are not proper to be shown for impeachment. 70 C.J. 1078, sec. 1274; State v. Mathis, 18 S.W.2d 8, 323 Mo. 37; Case v. St. L. S.F. Ry. Co., 30 S.W.2d 1069, certiorari denied, 51 S.W. 107, 282 U.S. 893, 75 L.Ed. 787. (12) Prejudicial and improper remarks to the jury knowingly made by the circuit attorney constitute reversible error. State v. Pierson, 56 S.W.2d 124; State v. Webb, 254 Mo. 414, 162 S.W. 622; State v. Spivey, 191 Mo. 87, 90 S.W. 81; State v. Mathis, 323 Mo. 57, 18 S.W.2d 8; State v. Ferguson, 162 Mo. 668, 63 S.W. 101; State v. Goodwin, 217 S.W. 264. (13) It is error to permit the circuit attorney to base his arguments on facts not in evidence and thus make a prejudicial appeal to the jury. State v. Mosier, 102 S.W.2d 620; State v. Woolsey, 33 S.W.2d 955; State v. Hayes, 10 S.W.2d 883, 323 Mo. 578; State v. Crouch, 98 S.W.2d 550, 339 Mo. 847; State v. Taylor, 8 S.W.2d 29; State v. James, 115 S.W. 994, 216 Mo. 394; State v. Guerringer, 178 S.W. 65, 265 Mo. 408; State v. Upton, 109 S.W. 821, 130 Mo. App. 316. (14) The converse of positive instructions given for the State should be given when requested by the defendant. State v. Hill, 44 S.W.2d 103, 329 Mo. 223; State v. Gill, 77 S.W.2d 110, 336 Mo. 69; State v. Markel, 77 S.W.2d 112, 336 Mo. 129; State v. Fraley, 116 S.W.2d 17, 342 Mo. 442; State v. Logan, 126 S.W.2d 256.
Roy McKittrick, Attorney General, and W.J. Burke, Assistant Attorney General, for respondent.
(1) The court did not err in overruling the motion of this defendant, Sylvester Woods, and defendants John W. Hurshman and James Kuhlmeyer for a rule that the State should elect previous to the date of the trial upon which defendant the State should go to trial. Sec. 3661, R.S. 1929. (2) The court did not err in overruling defendants' motion to dismiss and plea in abatement of this defendant, Sylvester Woods, and the other defendant jointly indicted, which plea in abatement alleged that five terms of court had passed without placing either of the defendants on trial. Sec. 3697, R.S. 1929; State v. Nelson, 279 S.W. 401; State v. Short, 87 S.W.2d 1031, 337 Mo. 1061; State v. McPhearson, 92 S.W.2d 131; State v. Duncan, 116 Mo. 308, 22 S.W. 699. (3) The court did not err in overruling the motion for leave to inspect the grand jury minutes concerning the indictment of each of the three defendants. State v. McDonald, 119 S.W.2d 286, 342 Mo. 998; State v. Thomas, 99 Mo. 235; State v. Pierson, 123 S.W.2d 152. (4) The court did not err in overruling the motion for leave to inspect the written statements of defendant, Charles Lane, who had plead guilty to the same crime as a co-defendant, but had not been sentenced. State v. Richetti, 119 S.W.2d 344, 342 Mo. 1015; State v. McDonald, 119 S.W.2d 288, 342 Mo. 998. (5) The court did not err in overruling the objection of defendant to the introduction of any evidence for the reason that the opening statement was too brief and did not contain facts sufficient to constitute or charge a crime against the defendant. Sec. 3681, R.S. 1929; State v. Loeb, 190 S.W. 303; State v. Baker, 278 S.W. 989. (6) There was sufficient, substantial, material and competent evidence to support the verdict. State v. Wright, 95 S.W.2d 1157. (7) Assignment of error number seven in appellant's motion for a new trial was insufficient and not specifically set out for review. State v. Dollarhide, 87 S.W.2d 156, 337 Mo. 962; State v. Copeland, 71 S.W.2d 750, 335 Mo. 140; State v. McKeever, 101 S.W.2d 22, 339 Mo. 1066. (8) The court did not err in refusing to give the instruction in relation to the testimony of Charles Lane as set out in defendant's assignment of error number seven. State v. Bartley, 84 S.W.2d 637, 337 Mo. 229; State v. Messino, 30 S.W.2d 750, 325 Mo. 743. (9) The trial court is only required to give an alibi instruction when requested, and in neglecting to give an alibi instruction it is not error as set out in defendant's assignment of error number nine. State v. Wilson, 12 S.W.2d 445, 321 Mo. 564; State v. Trice, 92 S.W.2d 135, 338 Mo. 744; State v. Pope, 92 S.W.2d 911, 338 Mo. 917. (10) The court did not err in sustaining the objection of the State to the testimony of Daniel Chrismer as to statement made by another party, John Hall, at the police show up, as to the identity of the defendant, Sylvester Woods. State v. Wright, 4 S.W.2d 456, 319 Mo. 46; State v. Kanupka, 247 Mo. 714, 153 S.W. 1056. (11) The court did not err in allowing the codefendant, Charles Lane to testify after he had plead guilty and had not been sentenced. State v. Hayes (Mo.), 247 S.W. 165; State v. Richardson (Mo.), 267 S.W. 841; State v. Reppley, 213 S.W. 477; State v. Jackson, 17 S.W. 301, 106 Mo. 178; State v. Roderman, 248 S.W. 964, 297 Mo. 143. (12) The court did not err in permitting the circuit attorney to ask the witness Charles Lane concerning his actions immediately after he had committed the assault. (13) The court did not err in refusing to permit the defendant to cross-examine the witness Charles Lane about specific instances of other fights because it was not the proper procedure to attack the credibility of the witness. State v. Perkins, 116 S.W.2d 80, 342 Mo. 560; State v. Crow, 84 S.W.2d 926, 337 Mo. 397; State v. Menz, 106 S.W.2d 440, 341 Mo. 74. (14) The court did not err in refusing to permit the defense to cross-examine Charles Lane on the question as to whether or not he was under parole on the date of the alleged crime, October 21, 1937. Myles v. St. L. Pub. Serv. Co., 52 S.W.2d 595. (15) The assignment of error number twenty, in the defendant's motion for new trial, is covered by the argument of the respondent as set out under defendant's assignment of error number eighteen. (16) The court did not err in refusing to permit the defendant to cross-examine the witness Charles Lane as to his whereabouts during the five days in which he had escaped from the authorities of the city of St. Louis, nor did it err in overruling the motion of the defendant to strike out all of the testimony of Charles Lane for the reason that he refused to answer the question, nor did it err in refusing to grant a mistrial on account of the refusal of Charles Lane to answer the question. State v. McGee, 83 S.W.2d 109, 336 Mo. 1082; State v. Crow, 84 S.W.2d 926, 337 Mo. 397. (17) The court did not err in permitting the witness Albert Bean to further testify as to statements made by the defendant even if the witness had testified that the defendant stated he had no part in the crime. (18) The court did not err in permitting the circuit attorney to cross-examine the witness Louis Guoehri in a general way concerning conversations among members of the C.I.O., or that the witness Louis Guoehri was put out a little because Lane testified. State v. Walker, 110 S.W.2d 780; State v. Ryland, 25 S.W.2d 109, 324 Mo. 714. (19) The court did not err in permitting the circuit attorney to cross-examine the defendant about the authority of Charles Lane to "man-handle" a non-union man, or cross-examine the defendant about the practices of unions generally in hiring members to beat up non-union workers. State v. King, 119 S.W.2d 277, 342 Mo. 975; State v. Hawley, 51 S.W.2d 77; State v. Revard, 106 S.W.2d 906, 341 Mo. 170. (20) The court did not err in refusing a continuance for the defendant on the date set for trial. State v. Pyle, 123 S.W.2d 166; State v. Walker, 110 S.W. 780.
Appellant Woods was found guilty in the circuit court of the city of St. Louis, Missouri, of manslaughter, and sentenced to imprisonment in the penitentiary for a term of two years. He appealed. The indictment charged appellant Woods, Charles Lane, John W. Hurshman and James Kuhlmeyer with the offense. A severance was asked for and granted, whereupon Woods was tried and convicted. The homicide was alleged to have been committed on October 21, 1937.
The State's evidence disclosed the following facts: The four men indicted were members of unions affiliated with the C.I.O., which means, "Congress of Industrial Organizations," of which appellant was an organizer. His duties included instructing local unions affiliated with the C.I.O. in the manner of conducting their meetings, and urging them to get all employees of various manufacturing plants, where the C.I.O. had a union, to join. There was a union in the Crunden-Martin factory, located at Second and Gratiot streets, affiliated with the C.I.O., but all of the employees of the plant did not belong. This plant was under the jurisdiction of appellant Woods, and at the time of the homicide a drive was in progress to get all employees of that plant to join the union affiliated with the C.I.O. Charles Lane entered a plea of guilty prior to appellant's trial and testified for the State. The substance of his evidence was as follows: He had known Woods as an organizer for the C.I.O. On the afternoon of October 21, he met Woods, who informed the witness and defendant Hurshman, also present, that there was a man at the Crunden plant that he wanted "taken care of." Woods agreed to pay Lane $10.00 to do the job and informed the witness and Hurshman there would be another man there to help them. Pursuant to that arrangement, Woods, Hurshman, Lane and Kuhlmeyer met near the Crunden plant about 4:30 P.M., and Woods then informed them that Coyle was the man they were to take care of; that he would point Coyle out and for them to give him a good beating, but not hurt him too much. When the plant closed for the day and the employees left for their homes, Woods pointed out Coyle and then left. Lane further testified that he followed Coyle to an alley where he accosted him and a fight ensued; that he knocked Coyle down and thereafter Kuhlmeyer kicked Coyle on the head. This was corroborated by a young lady who was working in a nearby building. At the time Hurshman was in his car, and after the assault Lane, Kuhlmeyer and Hurshman left the scene. Coyle was found dead a few minutes later by witnesses who testified in the case. Lane further testified that he saw appellant Woods that evening about 8:00 o'clock and informed him of the assault. Woods admitted that Lane so informed him, but emphatically denied that he had anything to do with it, or that he had instructed Lane or anyone else to assault Coyle. Appellant also denied the truth of any evidence which connected him with the offense. He testified that he was not at the Crunden plant on the evening of October 21, as testified to by Lane and another witness. Three police officers testified that appellant, on October 22, after his arrest, stated that he was near the Crunden plant, about the time the offense was committed, to see the financial secretary of the local union at the plant; that he thought he could give the police officers the names of four men who were implicated in the assault. Appellant denied having made any such statements. There was ample evidence to sustain the conviction.
Appellant filed a brief in this court and we will dispose of all the points made. It is insisted that the indictment against appellant should have been dismissed because four terms of court had passed before appellant was tried. Sections 3697, 3698 and 3699, R.S. Mo. 1929, Mo. Stat. Ann., pages 3253, 3254, 3255, govern this situation. Briefly stated the record disclosed the following: The indictment was filed December 3, 1937, and the case was continued by order of court for want of time to try the case. It was again so continued at the following term. At the next term the defendant asked for a severance and also filed a motion for continuance. The case was continued at defendant's request. On June 4, the case was again continued by order of court for want of time to try it, and the same order was made on September 16. On December 8, 1938, all of the defendants filed a motion to dismiss. This was refused and a trial was had on January 4 and 5, when defendant Woods was still asking for a continuance and filed a written application therefor. The record does not disclose that appellant ever answered ready for trial or desired a trial, but on the contrary he asked for further time to prepare his defense. The case was not continued at any time at the request of the State. Appellant did not question the truth of the order of the court by which the case was continued for want of time. In the face of that record appellant's application for discharge was rightfully denied. The purpose of the statute is to insure a defendant a speedy trial and to prevent laches on the part of the State. This question was fully considered in State v. Pierson, 343 Mo. 841, 123 S.W.2d 149, l.c. 151, 152 (2, 3). In an early case, State v. Huting, 21 Mo. 464, this court said:
"The statute was intended to operate only when there is some laches on the part of the State."
The statute itself is a complete answer to appellant's contention. Section 3697, supra, concludes:
". . . he (the defendant) shall be entitled to be discharged, so far as relates to such an offense, unless the delay happened on his application, or be occasioned by the want of time to try such cause at such third term." (Italics ours.)
[See also State v. Nelson, 279 S.W. 401, l.c. 403 (1-7).] The section following, that is section 3698, supra, authorizes one continuance after the third term, provided the State applies therefor and the court is satisfied that the State has made reasonable effort to obtain material evidence which cannot be had, but there is just ground to believe can be had at the succeeding term. As stated above, the State at no time asked for a continuance. The case was continued either at defendant's request, or by the court for, want of time to try the case. The appellant at no time objected to any continuance, and when the State sought a trial he asked for a continuance. The above statutes exclude such terms where appellant is granted a continuance or the cause is continued for want of time. The point is therefore ruled against appellant.
Next appellant asserts the trial court erred in refusing to permit him to inspect alleged written statements, made by witness Lane concerning the offense, for the purpose of impeaching Lane's evidence, which statements were in possession of the circuit attorney. The application was made after the case had been called for trial. This contention of appellant is without merit. The record showed the following: The trial court denied the request at the beginning of the trial with the comment:
"If, at a later time, you can produce any authorities that you said you once had, but cannot now find, you will have an opportunity to re-urge the point."
Thereafter Lane testified for the State. A police officer, who had taken written statements from Lane, testified he had read Lane's statements to the defendant Woods; that he, the police officer, had a copy of Woods' statement. It was further disclosed by the evidence that the statements of Lane were published in a St. Louis newspaper. Appellant at no time during the trial again requested to inspect Lane's statements. He did not question the police officer as to the contents, nor did he ask the police officer to produce the statements of Lane. In view of that record it is evident that appellant is in no position to complain of the ruling of the trial court.
Error was assigned to the action of the trial court in holding that Lane, a co-indictee, was a competent witness for the State. Appellant further contended that Lane was not a competent witness because he was a confessed accomplice and had been promised a lighter sentence if he would testify for the State. Lane was a co-indictee. He had not been sentenced, but had entered a plea of guilty prior to appellant's trial. Appellant was permitted to disclose to the jury all the facts and circumstances with reference to the plea of guilty entered by Lane. If a co-indictee is given consideration by the State in the way of a lesser punishment for testifying, such fact does not disqualify him as a witness, but may be shown as affecting the credibility of his evidence. There was no evidence of any attempt to have Lane testify falsely. [State v. Richardson, 267 S.W. 841, l.c. 843 (6).] See State v. White, 126 S.W.2d 234, for a full discussion of this question. Since Lane entered a plea of guilty prior to appellant's trial he was a competent witness for the State. His case had been disposed of and the disqualification mentioned in section 3691, R.S. Mo. 1929, Mo. Stat. Ann., page 3240, no longer applied. [State v. Minor, 117 Mo. 302, 22 S.W. 1085; State v. Jackson, 106 Mo. 174, 17 S.W. 301; State v. Roderman, 297 Mo. 143, 248 S.W. 964.]
Appellant testified in his own behalf. Points five to eleven, inclusive, of appellant's brief are devoted to assignments of error concerning alleged improper cross-examination. The assignments are wholly without merit because the record does not support them. Appellant testified in detail as to his whereabouts on the day of the homicide, his connections with the C.I.O., his duties as an organizer and his acquaintance with his co-indictees. It is difficult to conceive how a cross-examination of appellant could have gone beyond the scope of the direct examination so long as it was confined to matters pertinent to the issue. Appellant had testified that he was not at the scene of the crime. It was therefore proper for the cross-examiner to question him concerning statements made to police officers inconsistent with his evidence. [70 C.J. 1078 and 1083, sections 1274 and 1275. Jones on Evidence (3 Ed.), sections 844, 845, 846, 849; State v. Clough, 38 S.W.2d 36, l.c. 39 (7), 327 Mo. 700.] Appellant denied having made the statements to the police officers and therefore the State was entitled to introduce evidence in rebuttal tending to show that appellant did make the alleged statements. This question was fully considered in State v. Perkins, 342 Mo. 560, 116 S.W.2d 80, l.c. 84, 85 (10).
Appellant urged error because the circuit attorney in his argument to the jury commented on the fact that Kuhlmeyer, a co-indictee, was not called as a witness to testify for the defendant. It will be noted that Lane testified that Kuhlmeyer was present when Woods made arrangements with them to assault Coyle. Kuhlmeyer therefore could have been used as a witness to refute Lane's evidence if Lane was not telling the truth. This court has passed on a similar question adversely to appellant's contention. See State v. Greer, 321 Mo. 589, 12 S.W.2d 87, l.c. 90 (5, 6), where the question was reviewed at length. [Canada v. Commonwealth, 262 Ky. 177, 89 S.W.2d 880; State v. Quinn, 345 Mo. 855, 136 S.W.2d 985, l.c. 987 (9).] [7] Another point is made that the prosecuting attorney stated in his argument to the jury that a witness for the defendant had deliberately stated a falsehood. A prosecutor has the right to comment on the evidence and the credibility of the witnesses from the State's viewpoint. He cannot be expected to tell the jury that all of the defendant's witnesses were truthful. Matters with reference to arguments to juries must to a great degree rest within the sound discretion of the trial courts. [State v. Reagan, 108 S.W.2d 391, l.c. 397 (17, 20).] We have only isolated statements of the argument in the record. We note, however, that the attorney for the defendant indicated in his argument that the police officers and Lane had not been truthful. The point is ruled against appellant.
It is also asserted in the brief that,
"The converse of positive instructions given for the state should be given when requested by the defendant."
Cases are cited in support of this statement, but the record discloses that appellant did not offer any converse instructions, so the point is not supported by the record.
Appellant, at the close of the case and before the instructions were read to the jury, objected to instruction number one in the following manner:
"MR. BECKER: . . . Now, at this time, I object to the giving and reading of Instruction No. 1 by the court for the reason that said instruction purports to cover the whole case and does not cover all of the facts and all of the law at issue in this case.
"THE COURT: In what respects, or does counsel not desire to state?
"MR. BECKER: I do not desire to state them."
It is now urged that pursuant to that objection and request the trial court was bound to give an alibi instruction. The following cases hold the contrary: State v. Enochs, 339 Mo. 953, 98 S.W.2d 685, l.c. 688 (8, 9); State v. Trice, 338 Mo. 744, 92 S.W.2d 135, l.c. 136, 137 (4, 5); State v. Wilson, 12 S.W.2d 445, l.c. 447 (4), 321 Mo. 564. We have considered all of the points briefed by appellant. We may note that the record discloses appellant was well defended at the trial. His counsel has presented the points ably in this court. The State introduced substantial evidence to sustain the charge of manslaughter. In such a situation we are not authorized to disturb the verdict unless there is error in the case. The judgment is affirmed. Cooley and Bohling, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.