Opinion
No. 41191.
January 9, 1950. Motion for Rehearing or to Transfer to Banc Overruled, March 13, 1950.
Defendant's conviction of murder in the second degree is affirmed. There was ample evidence that the deceased was drowned in a cistern at the direction of defendant. A state's witness was not disqualified because he had previously been adjudged a habitual drunkard. Statements of a state's witness and other evidence were not improperly suppressed by the state. Cross-examination of a state's witness was not unduly limited. An instruction as to an uncalled available witness was properly refused. Refusal to discharge a juror for cause was not error. Numerous other assignments as to the conduct of the trial are overruled.
1. CRIMINAL LAW: Homicide: Murder in Second Degree: Evidence Sufficient. The evidence was sufficient to justify a conviction of second degree murder.
2. CRIMINAL LAW: Witnesses: Mental Incapacity of Witness Not Established. Being adjudged a habitual drunkard and confined for treatment six years before did not establish mental incompetency as a witness.
3. CRIMINAL LAW: Statements and Evidence Not Improperly Suppressed. The record does not show that material statements of a state's witness were concealed from defendant or that material evidence was suppressed.
4. CRIMINAL LAW: Cross-Examination Not Improperly Limited. Cross-examination of a state's witness was not improperly limited.
5. CRIMINAL LAW: Uncalled Available Witnesses: Instruction Properly Refused. An instruction as to uncalled available witnesses was properly refused.
6. CRIMINAL LAW: Improper Cross-Examination: Refusal to Rebuke Counsel or Discharge Jury. The trial court acted within its discretion in refusing to rebuke counsel or discharge the jury when sustaining objections to improper cross-examination.
7. CRIMINAL LAW: Homicide: Evidence: Grand Jury Appearance of Victim. The fact that the victim had appeared before a grand jury was proper evidence on the issue of motive and was properly argued to the jury. Grand jury secrecy was not violated.
8. CRIMINAL LAW: Homicide: Evidence: Account Book Too Indefinite. Defendant's account book which he claimed showed transactions with the deceased and her husband was too indefinite to be admissible.
9. CRIMINAL LAW: Homicide: Argument on Historic Murder Cases Rejected: Discretion of Trial Court Not Abused. The discretion of the trial court was not abused in refusing to permit an argument describing historic murder trials.
10. CRIMINAL LAW: Evidence: Evidence Properly Excluded. Evidence which was excluded by the trial court was inadmissible.
11. CRIMINAL LAW: Trial: Evidence Stricken: Statement by Counsel: No Error. A statement by counsel to the court opposing a ruling that evidence not properly connected up be stricken did not require that counsel be admonished or the jury discharged.
12. CRIMINAL LAW: Trial: Conduct Toward Witnesses. The record does not show any improper conduct of the state's attorney toward witnesses.
13. CRIMINAL LAW: Conduct of Argument. Interruptions of the argument of defendant's counsel were made necessary when said counsel attempted to go outside the record. And the discretion of the trial court was not abused in controlling the argument of the state's counsel.
14. CRIMINAL LAW: Comments by Trial Court: No Objections or Exceptions. No objections or exceptions were saved to comments by the trial judge and exceptions were not preserved in the motion for new trial.
15. CRIMINAL LAW: Bias of Jury: Assignment Too General. An assignment on passion, bias and prejudice of the jury was too general.
16. CRIMINAL LAW: Failure to Instruct on Unanimous Verdict: No Error. No error appears on failure to instruct that a unanimous verdict was required when the jury was polled and found to be unanimous.
17. CRIMINAL LAW: Instructions: No Errors. There were no errors on the giving or refusing of instructions.
18. CRIMINAL LAW: Juries: Juror Not Disqualified. The trial court did not abuse its discretion in overruling a challenge of a juror for cause.
Appeal from Macon Circuit Court; Hon. Harry J. Libby, Judge.
AFFIRMED.
Charles E. Rendlen, Rendlen, White Rendlen and John R. Hughes for appellant.
(1) Error presumed harmful. Such will "not be declared harmless unless it is so without question." State v. Taylor, 118 Mo. l.c. 161; State v. Saunders, 288 Mo. 640, 232 S.W. 973; State v. Shipley, 174 Mo. 512, 74 S.W. 612; State v. Richards, 334 Mo. 485, 67 S.W.2d 58; State v. Byrnes, 177 S.W.2d 909. (2) Error was committed by permitting the witness, Hunolt, to testify without the court first determining his mental competency, he having been previously adjudged an habitual drunkard, incapable of managing his affairs. Sec. 1895, R.S. 1939; State v. Herring, 268 Mo. 514, 188 S.W. 169; State v. Pierson, 337 Mo. 475, 85 S.W.2d 48; Beil v. Gaertner, 355 Mo. 617, 197 S.W.2d 611. (3) The uncorroborated evidence of an accomplice is subject to grave suspicion and should be acted upon with great caution. Where the accomplice's evidence is inconsistent, improbable and is absolutely without corroboration, is denied in every particular by defendant, or if there be misconduct in the proceedings against defendant, or error committed against defendant, it will work a reversal of such a conviction. State v. Shipley, 174 Mo. 512; State v. Saunders, 288 Mo. 640, 232 S.W. 973; State v. Helton, 255 Mo. 170; State v. Byrnes, 177 S.W.2d 909; State v. Burton, 355 Mo. 467, 196 S.W.2d 621. (4) In Illinois where the law as to the uncorroborated testimony of an accomplice is the same as in Missouri, the Supreme Court of that state, reasoning the matter, has reversed convictions outright, not remanding the case. It appears that reason and logic are on the side of the Illinois decisions. That rule should apply in this appeal. People v. Cohen, 367 Ill. 382, 33 N.E.2d 593; People v. Vehon, 340 Ill. 511, 173 N.E. 104; People v. Harvey, 321 Ill. 361, 152 N.E. 147; People v. Rendas, 366 Ill. 385, 9 N.E.2d 237; People v. Weitzman, 362 Ill. 11, 198 N.E. 711. (5) The suppression of facts or the secreting of witnesses capable of establishing the innocence of the accused is highly reprehensible. Cannon of Ethics, Rule 4.05; State v. Bethune, 89 S.E. 153; State v. Tiedt, 206 S.W.2d 524. (6) It is reversible error for the prosecuting attorneys to endeavor to exclude competent evidence or to suppress facts favoring accused. 23 C.J.S., p. 534, sec. 1087; 16 C.J., p. 891; State v. Bethune, 89 S.E. 153; Wellar v. People, 30 Mich. 16; People v. Gordon, 40 Mich. 716. (7) "Accused, whether guilty or innocent, is entitled to a fair trial, and so it is the duty of the trial court, and the prosecuting counsel, as well, to see that he gets one," * * * "A prosecuting attorney occupies a quasi-judicial position. It is his duty to conduct the trial in such a manner as will be a fair and impartial trial to the rights of the accused." State v. Tiedt, 206 S.W.2d 524; State v. Bethune, 89 S.W. 153; State v. Nicholson, 7 S.W.2d 375. (8) Where state withholds pertinent evidence, the inference is that such evidence, if produced would be unfavorable to the prosecution. Hiner v. State, 196 Ind. 594, 149 N.E. 168; 1 Wigmore on Evidence (2 Ed.) Note to sec. 285; 16 C.J., p. 541, sec. 1023. (9) It is much more desirable that prosecuting officers enforce the law and prosecute cases by fair means, and be fair and impartial to accused than to secure convictions. State v. Nicholson, 7 S.W.2d 375. (10) It is misconduct for the prosecuting attorneys to submit only a partial statement of facts known to him. Matter of V____, 10 A.D. 491, 42 N.Y.S. 268; State v. Bethune, 89 S.E. 153. (11) The court erred in overruling defendant's motion to produce sworn statements of Hunolt. Prosecution had possession of facts and evidence that exonerated defendant, a withholding of such was misconduct. Rule 4.05, Cannons of Ethics; Matter of V____, 10 App. Div. 491, 42 N.Y.S. 268; State v. Bethune, 89 S.E. 153, State v. Tiedt, 206 S.W.2d 524. (12) The quasi-judicial position of the prosecutors and their duties of utmost fairness required the production, inspection and use in this case of said sworn statements. Failure so to do was wrongful suppression of material facts. State v. Bethune, 89 S.W. 153; Cannons of Ethics, Rule 4.05; State v. Tiedt, 206 S.W.2d 524; State v. Nicholson, 7 S.W.2d 375; 23 C.J.S., p. 534, sec. 1087; 16 C.J., p. 891, p. 541, sec. 1023; Hiner v. State, 196 Ind. 594, 149 N.E. 168. (13) The crucial test of any witness is his cross-examination. Where defendant is deprived of this privilege it cannot be excused in this court by attempting to denominate it as "harmless error." State v. Taylor, 118 Mo. 153, and authorities cited, including decisions of the United States Supreme Court; State v. Miller, 100 Mo. 606; State v. Pratt, 121 Mo. l.c. 574; State v. Blocker, 278 S.W. l.c. 1015. (14) Error in limiting inquiry on drunkenness of Hunolt. Facts and acts with respect thereto was competent. It was error to limit inquiry thereon. State v. Grant, 79 Mo. 113; State v. Wright, 152 Mo. App. l.c. 511; State v. Blocker, 278 S.W. l.c. 1016. (15) The court erred in refusing to give defendant's requested instruction B or a correct one if same be in anywise imperfect or erroneous, embodying the matters therein set out including the failure, if any, of one side or the other, to call and examine peculiarly available witness or witnesses possessing knowledge, if such be the fact, concerning any material fact or circumstance concerning such party's cause. State v. Collins, 350 Mo. 291, 165 S.W.2d 647; State v. Topalovacki, 213 S.W. 104; State v. Jones, 306 Mo. 437, 268 S.W. 83; State v. McLaughlin, 126 Conn. 257, 10 A.2d 758; People v. Smith, 99 N.Y.S. 118, 113 A.D. 396, 20 N.Y. Crim., 134; McClanahan v. Railroad Co., 147 Mo. App. 386; 22 C.J.S., p. 912, sec. 594; Young v. Corrigan, 208 F. 431; Hirner v. State, 196 Ind. 594, 149 N.E. 168; Fisher v. Travelers Ins. Co., 124 Tenn. 450, 138 S.W. 316, Ann. Cas. 1912d 1246. (16) If incorrect instruction asked, court must give good one on matter embraced in refused instruction. State v. Gibilterra, 342 Mo. 577, 116 S.W.2d 88; State v. Adler, 146 Mo. l.c. 25; State v. Little, 228 Mo. 273. (17) Prosecutor's misquoting of evidence or claiming evidence that is not in the record is reversible error. State v. Jackson, 95 Mo. 623; State v. Jones, 306 Mo. 437, 268 S.W. 83. (18) The failure of the court to rebuke, and the insufficiency of rebuke were erroneous and require a reversal of the case. State v. Jackson, 95 Mo. 623; State v. Young, 99 Mo. 666. (19) Where requested to rebuke counsel and the court merely tells the prosecuting attorney to keep within the record, and failed to reprimand and direct the jury to disregard the remarks it is reversible error. State v. Furgeson, 152 Mo. 92; State v. Clapper, 203 Mo. 549, 102 S.W. 560; State v. Pope, 338 Mo. 919, 92 S.W.2d 904. (20) By merely sustaining objection to improper statements or misconduct of the prosecuting officers but failing to rebuke them when asked so to do, the court sanctions the improper statements or conduct and such is reversible error. State v. Jones, 306 Mo. 437, 268 S.W. 83. (21) A series of insulting, impertinent, and insinuating questions, tending to belittle witnesses for defendant is prejudicial error. 16 C.J., p. 893, sec. 2230; State v. Prendible, 165 Mo. 329, 65 S.W. 559; State v. Lasson, 292 Mo. 155, 238 S.W. 101; State v. Burns, 286 Mo. 665, 228 S.W. 766. (22) In argument of Prosecutor Bollow he harshly commented on these improperly injected matters, overrode the inadequate rulings of the court, and he thus undid the effect of the court, having sustained the objections to such evidence. State v. Nicholson, 7 S.W.2d l.c. 379. (23) It has always been the public policy of Missouri that grand jury proceedings and names and identity of witnesses appearing before it are inviolably secret, and such secrecy has been protected by the law. Beam v. Link, 27 Mo. 261; Conway v. Quinn, 168 S.W.2d 445; Forthingham v. Adams Express Co., 34 F. 646. (24) The statutes and cases definitely state and embody the common law, that evidence given before the grand jury, or names of witnesses before it, cannot be disclosed. Sec. 3924, R.S. 1939; Cases cited, supra; Tindle v. Nichols, 20 Mo. 326. (25) The proceedings before the grand jury, including evidence presented to them, and witnesses appearing before them, cannot be disclosed by anyone present since they are bound not to disclose what may transpire. Tindle v. Nichols, 20 Mo. l.c. 329; State v. Johnson, 115 Mo. 481; Gitchell v. People, 146 Ill. 175, 33 N.E. 757. (26) The circuit clerk is an officer, an arm of the grand jury, and may be required by grand jury, or foreman thereof, or prosecuting attorney to issue subpoenas and process to bring in witnesses. He cannot testify of or concerning names of witnesses appearing before the grand jury or for whom process was issued, or tell their occupations, etc. Subpoenas issued by him cannot be so used. Secs. 3914, 3934, R.S. 1939; Tindle v. Nichols, 20 Mo. l.c. 329; Ex parte Holliway, 272 Mo. 108, 199 S.W. 412. (27) The only conditions under which evidence before or of witnesses appearing before the grand jury may be revealed are to show testimony at the trial and that before grand jury are inconsistent; When there is a complaint against a grand jury witness that he committed perjury, or upon his trial for such offense. The admitted evidence did not come within these exceptions. Sec. 3922, R.S. 1939; Forthingham v. Adams Express Co., 34 F. 646; Conway v. Quinn, supra. (28) There was no evidence connecting this grand jury evidence with the cause being tried. The purpose served by such improper and unlawful evidence and stating and arguing same was to inflame the jury and prejudice the defendant. It prevented a fair trial. The court's action and that of the prosecuting officers was prejudicially erroneous. State v. Maddox, 339 Mo. 840, 98 S.W.2d 535; State v. Roe, 180 S.W. 881; State v. Kuehner, 93 Mo. 193, 6 S.W. 118; State v. Cavener, 356 Mo. 602, 202 S.W.2d 869. (29) There was no direct evidence of what the grand jury considered or heard or what the witnesses said. The prosecution put double and prejudicial inferences upon this improper evidence and so said in the opening statement. They wrongfully argued and applied this improper evidence in their arguments to the jury. The argument was made by innuendo at least that such matters were proof of an independent crime. State v. Hyde, 234 Mo. 200; State v. Horton, 247 Mo. 657. (30) The evidence concerning grand jury, calls for mere speculation, and unwarranted inferences and puts defendant on trial, so far as the jury was concerned, upon matter for which he was not indicted. The grand jury did not indict defendant. State v. Teeter, 239 Mo. 475, 144 S.W. 445; State v. Gesell, 124 Mo. 531, 27 S.W. 1101; State v. Issais, 187 S.W. 21; State v. Hyde, supra. (31) The three certificates of deposit, Exhibits P, Q, R, were in no way connected or revelant to any of the issues of the case on trial. The state was required to show by more than mere conjecture and innuendo that they related to this case. State v. Eudaly, 188 S.W. 110; State v. Horton, 247 Mo. 657; State v. Hyde, 234 Mo. 200; State v. Alton, 105 Minn. 410, 117 N.W. 617, 15 Ann. Cas. 806. (32) These certificates were only a basis for conjecture and speculation that defendant was guilty of some other crime (not even attempted to be proved by the state.) Their admission was prejudicial error. State v. Jackson, 95 Mo. 623; State v. Jones, 306 Mo. 437, 268 S.W. 83; State v. Horton, supra; State v. Winchester, 286 S.W. 729. (33) The certificates were dated and cashed about five years before the death of Mrs. Bachstein. From the circumstances of this case and the nature of the evidence these certificates should not have been admitted. They were too remote from the transactions and matters in issue and not connected therewith. Their admission was reversible error. State v. Fenley, 309 Mo. 520, 275 S.W. 36; State v. Fenley, 309 Mo. 534, 275 S.W. 41; State v. Newcomb, 220 Mo. 54, 119 S.W. 405; State v. Eudaly, 188 S.W. 110. (34) The comment by the prosecution in argument as to what the certificates of deposit indicated, implied to the jury by inference and innuendo conclusions which were unwarranted, unproven conjecture, relating to some imputed criminal act by defendant known to the prosecuting attorney, but not in evidence, and were highly prejudicial to the defendant and was reversible error. State v. Lenzner, 338 Mo. 903, 92 S.W.2d 895; State v. Horton, supra; See point (1). (35) It was error to exclude the account book kept by Sam Brown, concerning financial transactions with the Bachsteins. It explains, modifies and promotes a fuller understanding of the whole transaction concerning the certificates of deposit introduced by the prosecution, over defendant's objections. State v. Bobbitt, 270 S.W. 378; State v. Branstetter, 65 Mo. 149; Di Salvo v. U.S. 2 F.2d 222. (36) These were original contemporary entries in the only account book of this farmer and stock raiser and should have been admitted. Lyons v. Corder, 253 Mo. 539, 162 S.W. 606; Dameron v. Harris, 281 Mo. 247, 219 S.W. 954; Anchor Milling Co. v. Walsh, 108 Mo. 277, 18 S.W. 904, 32 Am. St. Rep. 600. (37) It was error to sustain prosecution's objections to argument of defendant's counsel wherein he attempted to refer to and comment on, by way of illustrations and argument, matters of common and general public information and settled history. State v. Sturrs, 51 S.W.2d 45; 23 C.J.S., p. 555, sec. 1096. (38) Prosecutor's wrongful statements and insinuations on stricken testimony of Toby Bowen. (39) The action was deadly. The prejudicial effect upon the jury was inescapable. Defendant's request that the prosecutor be admonished was overruled. For this error alone the judgment should be reversed. State v. Lasson, 292 Mo. 155, 238 S.W. 101; State v. Burns, 286 Mo. 665, 228 S.W. 766; State v. Nicholson, 7 S.W.2d l.c. 379. (40) Court's failure to admonish or rebuke was an approval of prosecutor's conduct and statement. State v. Jones, 306 Mo. 437, 268 S.W. 83; State v. Mahly, 68 Mo. 315. (41) It was erroneous for the prosecutor to attempt to introduce the unconnected and incompetent testimony of Tobey Bowen. State v. Lasson, cited supra; State v. Burns, cited supra. (42) The misconduct of the prosecuting attorneys in examining witnesses and during the taking of testimony without proper rebuke or reprimand, their insinuating manner tending to belittle witnesses, and defendant, making side remarks, requires the reversal of the judgment of conviction, even though some of the objections to such interrogations may have been sustained. State v. Prendible, 165 Mo. 329; State v. Ulrich, 110 Mo. 350; State v. Fischer, 124 Mo. 460; State v. Young, 99 Mo. 666. (43) Erroneous argument and statement by prosecutors and action of court with respect thereto requires reversal. State v. Jackson, 623 Mo. l.c. 652; State v. Tiedt, 206 S.W.2d 524; State v. Helton, 255 Mo. 170, 164 S.W. 457; State v. Horton, 247 Mo. 657. (44) Implying that the prosecutor knew facts which the jury had no knowledge of and expressing his belief of guilt upon independent and undisclosed evidence was reversible error. State v. Mathis, 18 S.W.2d 8; State v. Lenzner, 92 S.W.2d 895. (45) Erroneous interference with defendant's argument and statements and errors of court with respect thereto requires reversal. State v. Nicholson, 7 S.W.2d 375; State v. Jones, 206 Mo. 437, 268 S.W. 83; State v. Lenzner, 92 S.W.2d 895. (46) Regardless of how regular the proceedings at the trial may be if prejudice finds its way with the verdict, that verdict cannot stand. State v. Tiedt, 206 S.W.2d 524. (47) Error was committed by the court in commenting on the evidence. Sec. 4083, R.S. 1939; State v. Davis, 217 S.W. 87; State v. Turner, 125 Mo. App. 21, 102 S.W. 668; State v. Eudaly, 188 S.W. 110; State v. Hyde, 234 Mo. 200. (48) The court erred in failing to instruct on all of the law applicable to the case at the close of all the evidence. Sec. 4070, R.S. 1939; State v. Taylor, 118 Mo. l.c. 180; State v. Branstetter, 65 Mo. 149. (49) Missouri Constitution, Article I, Section 22 that right of trial by jury as heretofore enjoyed shall remain inviolate. Same also provided the Constitution of 1875 in Article II, Section 28. This is a jury of 12 in a criminal case. Unanimous verdict required. State v. Hamey, 168 Mo. 167, 67 S.W. 620; 53 Am. Jur., sec. 511, sec. 1006, p. 697; Emery v. Monongahela, etc., Co., 163 S.E. 620. (50) "In a criminal prosecution in which a unanimous verdict is required, defendant is entitled to an instruction as to the unanimity of a verdict of guilty." Emery v. Monongahela Co., 163 S.E. 620; 64 C.J. p. 626, sec. 558; 53 Am. Jur., sec. 804, p. 595. (51) A failure to so instruct is error. Dorman v. East St. Louis Ry. Co., 335 Mo. 1082, 75 S.W.2d 854; Emery v. Monongahela Co., 163 S.E. 620. (52) Error in overruling defendant's challenge to venireman Lyman Ator for cause. Nothing is more important and more necessary to the pure and just administration of the law than that every litigant be accorded a fair trial before a jury, who enter upon the trial wholly disinterested and unprejudiced. Theobold v. Railroad, 191 Mo. 395; State v. Connor, 252 S.W. 713; State to use of Goldsall v. Catham Natl. Bank, 10 Mo. App. 482; Sec. 4060, R.S. 1939. J.E. Taylor, Attorney General, and W. Brady Duncan, Assistant Attorney General, for respondent.
(1) The court did not err in permitting witness Hunolt to testify without first determining his mental competency. Sec. 509, R.S. 1939; Darby v. Cabanne, 1 Mo. App. 126; Bennett v. United States, 158 F.2d 412, certiorari denied 67 S.Ct. 1302. (2) The court did not err in passing upon the evidence of witness Hunolt in respect to his being an accomplice in the crime charged, nor was it the court's function to pass upon the credibility of such testimony. State v. Simmons, 332 Mo. 247, 58 S.W.2d 302; State v. Raines, 339 Mo. 884, 98 S.W.2d 580; State v. Goffstein, 342 Mo. 499, 116 S.W.2d 65; State v. Hayes, 301 Mo. 304, 256 S.W. 747. (3) The court did not err in overruling defendant's motion to inspect written statements of witness Hunolt made previous to his testimony. State v. Hancock, 340 Mo. 918, 104 S.W.2d 241; State v. Fitzgerald, 130 Mo. 407, 32 S.W. 1113; State v. McDonald, 342 Mo. 998, 119 S.W.2d 286. (4) The court did not erroneously limit the cross-examination of witness Hunolt, and his cross-examination was full and complete. Sec. 4125, R.S. 1939. (5) The court did not err in refusing to give Instruction B requested by defendant. State v. Stewart, 278 Mo. 177, 212 S.W. 853; State v. Reynolds, 345 Mo. 79, 131 S.W.2d 552; State v. Beasley, 353 Mo. 392, 182 S.W.2d 541; State v. Collins, 350 Mo. 291, 165 S.W.2d 647; State v. Parr, 296 Mo. 406, 246 S.W. 903; State v. David, 131 Mo. 380, 33 S.W. 28; Sec. 4125, R.S. 1939. (6) The court did not err in its rulings in connection with the cross-examination of defendant's witnesses. State v. Blocker, 278 S.W. 1014; Sec. 4125, R.S. 1939. (7) The court did not err in permitting evidence concerning the grand jury to be received in evidence. This evidence did not violate the rule of secrecy of the grand jury. Sec. 3924, R.S. 1939; 24 Am. Jur., sec. 48, p. 866; Ex parte Brown, 72 Mo. 83; State v. Knight, 356 Mo. 1233, 206 S.W.2d 330. (8) The court did not err in permitting the introduction of certificates of deposit and evidence concerning said certificates. State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920; State v. Florian, 355 Mo. 1169, 200 S.W.2d 64; State v. Fitzgerald, 130 Mo. 407, 32 S.W. 1113; State v. Koch, 10 S.W.2d 928; State v. Knight, 356 Mo. 1233, 206 S.W.2d 330. (9) The court did not err in excluding the memorandum or alleged account books of defendant Sam Brown. State v. Harris, 334 Mo. 38, 64 S.W.2d 256. (10) The court did not err in sustaining objection to arguments of defendant's counsel which were outside the record and referred to other murder cases. (11) The court did not err in excluding evidence offered by the defendant as alleged in Assignment XVI of appellant's brief. State v. Hgenfritz, 263 Mo. 615, 173 S.W. 1041, 83 A.L.R. 434; State v. Benson, 346 Mo. 497, 142 S.W.2d 52; State v. Recke, 311 Mo. 581, 278 S.W. 995; Sec. 4125, R.S. 1939. (12) The court did not err in its rulings in connection with the testimony of witness Toby Bowen. State v. McKeever, 339 Mo. 1066, 101 S.W.2d 23; State v. Napoli, 44 S.W.2d 55. (13) The court did not err in its rulings made during the arguments of attorneys. State v. Perriman, 352 Mo. 1022, 180 S.W.2d 668; State v. Leonard, 182 S.W.2d 548; State v. Messino, 325 Mo. 743, 30 S.W.2d 750; State v. Jackson, 95 Mo. 623, 8 S.W. 749. (14) The court did not err in overruling Specification 27 of defendant's motion for new trial alleging the verdict was the result of passion and prejudice on the part of the jury. Secs. 4125, 4378, R.S. 1939; State v. Jackson, 340 Mo. 748, 102 S.W.2d 612. (15) The court did not err as set out in Assignment XXI of appellant's brief, page 72, concerning comment by court on the evidence. Sec. 4125, R.S. 1939. (16) The court did not err in failing to instruct the jury as to an unanimous verdict. State v. Garth, 164 Mo. 553, 65 S.W. 275; State v. Rudman, 327 Mo. 260, 37 S.W.2d 409. (17) The court did not err in giving and refusing instructions as set out in Assignment XXIV of appellant's brief. Sec. 4125, R.S. 1939; State v. Miller, 208 S.W.2d 194. (18) The court did not err in overruling challenge to venireman Lyman Ator for cause. Sec. 4061, R.S. 1939; State v. Salts, 331 Mo. 665, 56 S.W.2d 21; State v. Lewis, 323 Mo. 1070, 20 S.W.2d 529; State v. Spencer, 355 Mo. 65, 195 S.W.2d 99.
Defendant has appealed from a judgment of conviction of murder in the second degree and a sentence of twelve years imprisonment in the State penitentiary.
The State's evidence tended to show that shortly before November 17, 1941 the defendant hired one Mark Hunolt and paid him $50 to help defendant's minor son Stanley Brown put Mrs. Dora Bachstein into a cistern. About midnight on November 17, 1941 Stanley Brown came to the Hunolt residence for him and the two proceeded to the Bachstein residence in Shelby county [649] where Mrs. Bachstein, a 73 year old widow, lived alone on a farm. They entered her house and forcibly took her from her bed and carried her to an open cistern, where she was shoved in head first and left to drown. Her dead body was found about 8 a.m., November 18, 1941. Defendant was not present when the murder was committed. Evidence tending to show motive will be reviewed later.
Hunolt was apprehended in 1946 and, subsequently, made a statement implicating defendant and his son Stanley and their arrest followed. On the 25th day of August 1946, Hunolt entered a plea of guilty to having murdered Mrs. Dora Bachstein. Sentence was deferred and he testified for the State in this cause.
Defendant denied the charge against him and offered evidence tending to show that, at the time mentioned by Hunolt, he was not at the place where the alleged agreement was made and the consideration paid and, further, that his son Stanley Brown did not go to the Hunolt residence or the Bachstein farm on the night in question or assist Hunolt in the commission of the crime. Numerous assignments of error are presented on this appeal.
Appellant first points out that error is presumed to be harmful and will "not be declared to be harmless unless it is so without question"; and that, if the testimony of an accomplice in a criminal case is inconsistent, improbable and without corroboration and if the record shows misconduct in the proceedings prejudicial to the defendant and error committed against him, or if "the evidence is not sufficiently substantial to support the judgment of conviction," it will work a reversal. No discussion of these abstract principles is required. The evidence was amply sufficient to support the verdict. State v. Koch (En Banc), 321 Mo. 352, 10 S.W.2d 928, 930; State v. Stogsdill, 324 Mo. 105, 23 S.W.2d 22, 27; State v. Pierson, 343 Mo. 841, 123 S.W.2d 149, 156.
Error is assigned on permitting Hunolt to testify without first determining his mental competency. No hearing was requested on this issue, but defendant objected to the introduction of his testimony on the ground of mental incompetency. It was shown to the court that, six years before, to wit, on February 3, 1942, Hunolt was duly adjudged by the Probate Court of Shelby county to be a habitual drunkard and incapable of managing his affairs. He was ordered delivered into the custody of the Superintendent of the State Hospital No. 1 at Fulton, Missouri, to be kept and confined for treatment until cured, discharged according to law, or until the further order of the court. Sec. 509 R.S. 1939. No further order was shown. The evidence does not show how long Hunolt remained in the hospital, but he subsequently returned to his farm home in Shelby county where he remained until 1944. He was, thereafter, employed in the Kaiser Shipyards in Portland, Oregon, and later in Idaho, Montana and St. Louis. As stated, after his arrest in 1946, he entered a plea of guilty to the charge of murder. The record of the examination and cross-examination of this witness shows an alert mind. The court did not err in permitting him to testify, because prima facie he was a competent witness. He had not been adjudged to be insane, or a person of unsound mind, nor had he been confined in any institution as such. Sec. 1895 R.S. 1939 and cases based thereon are not controlling. The facts shown were insufficient to establish mental incompetency as a witness. Darby v. Cabanne, 1 Mo. App. 126, 129; 70 C.J. 96, Sec. 124; Annotation 26 A.L.R. 1502; 58 Am. Jur. 91, Witnesses, Secs. 116 and 117; Bennett v. U.S. 158 F.2d 412, 415.
Error is assigned (1) on the overruling of defendant's motion to require the prosecuting attorney to produce (for inspection, copying or photographing) two written statements duly sworn to by witness Hunolt, one obtained by the prosecuting attorney and one by the sheriff's office in cooperation with the State Highway Patrol; and (2) on the alleged suppression by the prosecuting attorney of facts capable of establishing the innocence of the accused. The motion alleged that the inspection, copying or photographing was "necessary to defendant to prepare his case for trial"; and that defendant [650] could not safely proceed to trial without such inspection. Defendant charged that a comparison of these statements would show Hunolt had "made different statements of essential and material matters." The motion stated conclusions and not facts and showed upon its face that it was a "fishing expedition" seeking to discover something of benefit to defendant. No facts were stated to show any materiality of the statements to defendant's defense, since they were hearsay and inadmissible except by way of impeachment, if the witness should testify differently. What were considered "essential and material matters" was not stated. The application for the inspection and the charge of suppression of evidence are both based wholly upon supposition, conjecture and surmise unsupported by any facts, as appellant in effect concedes by his argument that "if there is nothing to conceal, why conceal it? If there is nothing to suppress why suppress it?" Such is the essence of appellant's position. The court did not err in overruling the motion. State ex rel. Page v. Terte (En Banc), 324 Mo. 925, 25 S.W.2d 459; State ex rel. Mo. Pac. R. Co. v. Hall, 325 Mo. 102, 27 S.W.2d 1027, 1028(3); State v. Fitzgerald, 130 Mo. 407, 424, 32 S.W. 1113, 1117; State v. Hancock, 340 Mo. 918, 104 S.W.2d 241, 246; State v. McDonald, 342 Mo. 998, 119 S.W.2d 286, 288; State v. Richetti, 342 Mo. 1015, 119 S.W.2d 330, 344. No suppression of evidence which would have tended to establish the innocence of the accused is shown by this record.
Error is assigned on the alleged erroneous restriction or denial of cross-examination of witness Hunolt. It is contended that the cross-examination was limited or denied in some twenty-five instances and that part of Hunolt's testimony at the preliminary hearing, offered on the theory of impeachment and contradiction, was erroneously excluded. Defendant's motion for a new trial complained that the cross-examination of Hunolt was limited (1) as to the time, extent, continuity and duration of drunkenness and irresponsibility; (2) as to whether witness was rejected for army service because of mental incapacity, deficiency or irresponsibility; (3) as to knowledge of Stanley Brown being an honor student in the Clarence high school and subsequently attending a Teacher's College; (4) as to knowledge of the size, weight, height, age, strength and vigor of defendant, showing defendant more able to do for himself with greater security than by sending Hunolt; and (5) as to whether Hunolt had been asked and answered at the preliminary hearing, as follows: "Q. When you picked her up how did you know it was Mrs. Dora Bachstein? A. I didn't know." The other assignments need not be considered. Sec. 4125 R.S. 1939.
The evidence alleged to have been offered and excluded under point 1, was "that witness would testify he was a confirmed drunkard and because of such was incapable of managing his affairs." Hunolt denied that he was a habitual drunkard prior to 1941, but admitted the adjudication in that year. He was fully cross-examined as to that matter and as to his continuous use of intoxicating liquors. Rejection for army service on the ground mentioned was offered as proof of incapacity and irresponsibility and not for impeachment. Knowing of Stanley Brown's being an honor student and attending college was offered apparently on the theory that such knowledge by Hunolt tended to impeach Hunolt's testimony. His knowledge of defendant was apparently on the same theory. Stanley Brown subsequently testified concerning his educational attainments and defendant was before the jury as a witness. The statement of Hunolt at the preliminary hearing was not in impeachment, since it was consistent with his testimony at the trial. He did not personally know Mrs. Bachstein. A careful examination of the record as to all assignments under this heading fails to disclose any error. No abuse of the court's discretion in limiting cross-examination is shown. State v. Stegner, 276 Mo. 427, 207 S.W. 826, 830; State v. May, 172 Mo. 630, 646, 72 S.W. 918.
Error is assigned on the court's refusal of Instruction "B" which would [651] have told the jury that they could infer that the testimony of any uncalled or unquestioned available witness, possessing knowledge of material facts or circumstances concerning a party's cause, "would not sustain the contention of such party in this cause." It is further said that, if the instruction is erroneous, the court erred in failing to give a correct one. Reference is made to specification 36 of the motion for a new trial wherein defendants stated that Hunolt's brother-in-law and sister were available witnesses and would or should have known whether Hunolt stayed at their house on the night Hunolt said he helped put Mrs. Bachstein in the cistern. No other witnesses are specifically named. The assignment of error in the motion is the refusal of the instruction and that issue alone is presented. Sec. 4125, supra. Reference is also made to specification 20 of the motion, but we find no reference therein to Instruction B.
In the trial of this cause Hunolt testified that he stayed at Barton's Cabins on the night in question. This direct testimony was superior to any testimony that he did not stay at his brother-in-law's. The State was not required to produce every available witness on either essential or non-essential matters. State v. Parr, 296 Mo. 406, 246 S.W. 903, 907. The instruction would have submitted no facts, but would have given the jury a roving commission to guess and surmise as to what facts were material to a party's cause. It would have submitted an issue of law as to when a witness was available and to whom, and would have tended to confuse and mislead the jury. See, State v. Collins, 350 Mo. 291, 165 S.W.2d 647. The court did not err in refusing the instruction. Roehl v. Ralph (Mo. App.), 84 S.W.2d 405, 413(10); Miller v. Fleming (Mo. App.), 259 S.W. 139, 141; Annotation 135 A.L.R. 1376.
Error is assigned on the alleged "misconduct of prosecutors in cross-examining witnesses for defendant concerning the Nelson Barton Tourist Cabins." Reference is made to specification 20 of the motion for new trial concerning the examination of witness George Tom Cutsinger to whom Barton's Cabins had been sold. The assignment concerns various questions put to Cutsinger to which objection was made by counsel and sustained by the court, but requests that counsel be rebuked and reprimanded and that the jury be discharged were denied. The record fails to show any abuse of the court's discretion in refusing to rebuke or reprimand counsel or discharge the jury.
Error is assigned (1) on the introduction in evidence of certain records and files in the office of the Circuit Clerk of Shelby county concerning the grand jury empaneled on October 6, 1941, including subpoenas for witnesses, certificates of attendance, a subpoena duces tecum, the testimony of witnesses identifying the exhibits and proof that Dora Bachstein entered the jury room; (2) on the admission of three time certificates issued by different banks to Dora Bachstein, which certificates were endorsed by her and later endorsed and cashed by defendant and the testimony of witness identifying exhibits and signatures and showing payment; and (3) on the arguments and statements of counsel with reference to these several matters. The assignment involves the testimony of nine witnesses and numerous exhibits.
The questioned evidence was directed to proof of motive, that is, to showing (a) that defendant had reason to want deceased out of the way; (b) that defendant believed and had reason to believe the grand jury had under investigation his conduct and that of his son Stanley in certain business and financial transactions with Dora Bachstein; and (c) that defendant had exhibited an active interest in what the grand jury was doing. Other evidence tending to show motive was not objected to. Defendant was present when the grand jury was empaneled, he made a request of a grand juror about being fair to his son and he said he knew what was going on before the grand jury. He also visited Mrs. Bachstein the day after her appearance before the grand jury and the day before her death.
[652] It is contended that all of the evidence concerning the grand jury "violated the secrecy of the Grand Jury"; that the prosecutors "designedly sought to do obliquely what they could not do directly"; and that the evidence objected to put the "defendant on trial * * * upon matter for which he was not indicted." It is admitted that "there was no direct evidence of what the Grand Jury considered or heard or what the witnesses said"; and that the state did not attempt to prove defendant guilty of some other crime in connection with the business transactions shown by the evidence. It is only said that the evidence was "a basis for conjecture and speculation." We think the evidence competent, relevant and admissible on the issue of motive. Sec. 3924 R.S. 1939 was not violated, nor was any other rule of law or statutory provision. A wide latitude is generally allowed in the development of evidence of motive. State v. Koch, supra; State v. Hyde, 234 Mo. 200, 237, 136 S.W. 316; State v. Wheaton (Mo. Sup.), 221 S.W. 26, 29; 22 C.J.S. 933, Criminal Law, Sec. 614; 26 Am. Jur. 373, Homicide, Sec. 323. The court did not err in admitting the questioned evidence, nor in permitting counsel for the state to argue the same to the jury. State v. Gruber (Mo. Sup.), 285 S.W. 426; State v. Santino (Mo. Sup.), 186 S.W. 976, 977; State v. Spinks, 344 Mo. 105, 125 S.W.2d 60, 64; State v. Garrison, 342 Mo. 453, 116 S.W.2d 23, 24; State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878, 884; State v. Knight, 356 Mo. 1233, 206 S.W.2d 330, 333.
Error is assigned on the exclusion of defendant's account book. Defendant testified that he kept an account and made entries of his transactions with Hiram Bachstein (who died before his wife, Dora); that he used the book to set down various and sundry transactions; and that, the data on the pages offered were in his handwriting and were made at the time of transactions between himself and Hiram Bachstein. The word "Hiram" appears twice on one of the pages, but there is no reference to Dora or to the Bachsteins. Only one date appears "1935." Subsequently there is a "36", "37", "38" and "39." Under each of these there are a few items, as "hay", "corn", "oats", "wood", or "hog", with some amount for each. Defendant used the note book to refresh his recollection as to each item for each year and as to the total amount charged to Hiram. The Bachsteins paid the accounts in cash about the first of the year each year, but such does not appear from the exhibit. We infer from the remarks of the court that the exhibit was excluded on the theory that it was not fair on its face, showed no prices or amounts for the items listed and was too indefinite. It gave no specific dates, and didn't purport to be an account with Dora or to show any of her three time certificates. Defendant testified that he received and cashed the three time certificates for a total of $628.75, deducted $275.00 owed to him by the Bachsteins "for two year's rent" (not shown in the account), and paid the balance over to Bachsteins in cash. Any two of the certificates would have exceeded $275.00. The court did not err in excluding the exhibits. See, Lyons v. Corder, 253 Mo. 539, 549, 162 S.W. 606; Nall v. Brennan, 324 Mo. 565, 23 S.W.2d 1053, 1057.
Error is assigned on the court's refusal to permit appellant's counsel, in argument, to tell the jury (1) of Abe Lincoln's defense of Duff Armstrong and the use of the almanac to establish there was no moon when the state's witness said he recognized accused by the light of the moon; and (2) of the Degnan murder in Chicago where two different people came forward saying they did it and it was established that a third person committed the murder. Appellant insists that counsel had the right to comment on historic matters. 23 C.J.S. 555, Sec. 1096; 53 Am. Jur. 388, Trial, Sec. 481. Counsel was not undertaking to comment, but to detail specific stories to the jury for the purpose of basing an argument thereon. The trial court did not abuse its discretion in refusing to permit counsel to do so. How far appellant's attorney should be permitted to go outside of the record to detail facts and circumstances of other specific crimes or trials for the purpose of illustration [653] and argument was within the sound discretion of the trial court. State v. Florian, 355 Mo. 1169, 200 S.W.2d 64, 68; Whittom v. Adams Express Co. (Mo. App.), 182 S.W. 137. No abuse of discretion appears.
Error is assigned on the limitation and exclusion of certain testimony and exhibits. Some fourteen main points are presented with numerous sub-headings. No authorities are cited in support of any of these assignments or sub-assignments. No argument is made to support them, but there are references to the motion for a new trial and to the bill of exceptions. We have carefully examined each assignment and sub-assignment. Evidence of the acquittal of Stanley Brown in a prior trial was properly excluded. State v. Recke, 311 Mo. 581, 278 S.W. 995, 1000. Numerous statements attributed to Dora Bachstein in her lifetime were hearsay and inadmissible under any of the exceptions to the hearsay rule. State v. Benson, 346 Mo. 497, 142 S.W.2d 52, 54. Space does not permit a further review of the numerous assignments under this main heading, but we find no error in the court's rulings on the matters complained of.
Error is assigned on an alleged "deliberate, wrongful and prejudicial statement by the State's attorney, after the improper and incompetent testimony of witness, Toby Bowen, was stricken out." Complaint is made of the court's failure to admonish or rebuke the prosecutor on his efforts to introduce "unconnected and incompetent" evidence and on the court's failure to discharge the jury. The testimony was stricken out as "not sufficiently connected up" and the jury was directed to disregard it. The statement complained of was directed to the court in an effort to obtain a change of ruling. See, Todd v. K.C. Rys. Co. (Mo. App.), 237 S.W. 868, 872; Adams v. Carlo (Mo. App.), 101 S.W.2d 753, 760. No reason was assigned for the request "that counsel be admonished and the jury discharged." State v. Napoli (Mo. Sup.), 44 S.W.2d 55, 57; State v. McKeever, 339 Mo. 1066, 101 S.W.2d 22, 32. Failure to admonish counsel or discharge the jury on account of the statement of counsel is not assigned as error in the motion for new trial, but rather the alleged wrongful making of the statement and the alleged wrongful act of getting the stricken evidence before the jury. There is nothing in the record to show other than (1) a good faith introduction of evidence that was subsequently stricken as not sufficiently connected up; and (2) a good faith effort to have the court change its ruling thereon. The assignment is overruled.
Error is assigned upon the alleged "misconduct of State's attorney with witnesses and during taking of testimony." The misconduct mentioned is "their insinuating manner tending to belittle witnesses, and defendant, making side remarks." The particular side remarks or the other matters mentioned are not specifically pointed out in the brief or in motion for new trial. No references are made to any section of the motion or to any page of the 1171 page record. The assignment presents nothing for review.
Error is assigned on "the conduct of attorneys for prosecution (1) in their wrongful, improper and prejudicial arguments, and (2) their frequent distracting and unjustified interruptions of and the heckling of defendant's attorneys, and the failure of the court to prevent same and protect the defendant." Reference is made to some thirty instances. In a great majority of instances pointed out under the head of alleged "wrongful, improper and prejudicial arguments" no objection of any kind was made at the time. In some instances objection was made and sustained and no further relief was asked. In other cases no abuse of the court's discretion in the control of argument appears. The alleged "distracting and unjustified interruptions" of defendant's counsel, as emphasized in the brief, were made necessary by counsel's attempt to go out of the record and argue the fact of Stanley Brown's acquittal by a jury, his efforts to tell the story of Abe Lincoln's use of the almanac in the defense of Duff Armstrong, his efforts to tell the jury of the Degnan murder and of [654] the persons who tried to plead guilty therefor, and by his efforts to draw inferences and conclusions before the jury as to alleged conflicts between Hunolt's testimony at the trial and his prior statements, which were not in evidence. These conclusions and inferences were attempted to be drawn from variations between the facts stated in the opening statement of counsel for the state and the testimony of Hunolt. A careful review of the whole record, and of all assignments under this and other headings concerning the arguments of the State's counsel, fails to show any error or any abuse of the court's discretion in ruling these matters.
Error is assigned on certain comments made by the court in the progress of the trial. Reference is made to certain alleged comments by the court as to matters being in, or not in evidence, and on other matters, but none of the matters mentioned are preserved in the motion for a new trial and they may not now be considered. Sec. 4125, supra. Nor was any objection made or exception saved to the comments at the time.
Appellant contends "the verdict is the result of passion, bias and prejudice on the part of the jury." It is argued that "no motive whatever is disclosed" and that the statements, arguments, objections and interruptions by counsel for the state and the evidence concerning the grand jury and the time certificates of Dora Bachstein were highly prejudicial. These specific matters have been considered, supra. The principal assignment is too general and presents nothing for review. State v. Jackson, 340 Mo. 748, 102 S.W.2d 612, 618.
Error is assigned on the failure to instruct the jury that a unanimous verdict was required. Sec. 4070 R.S. 1939 provides that "whether requested or not, the court must instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict." 53 Am. Jur. 595, Trial, Sec. 804 states that "the defendant is entitled to an instruction as to the unanimity of a verdict of guilty," but no authorities are cited. No such instruction was given, but, when the verdict of guilty was returned, the court polled the jury and ascertained that the verdict was unanimous. The assignment is overruled. State v. Garth, 164 Mo. 553, 565, 65 S.W. 275; State v. Rudman, 327 Mo. 260, 268, 37 S.W.2d 409, 412.
Error is assigned on the refusal of Instructions C, E, F, I, K, L, N, O, and J and on the giving of Instructions 3, 7 and 9. No authorities are cited or arguments made, but reference is made to specific provisions of the motion for a new trial. We have carefully reviewed each assignment, but find no errors in the giving or refusal of instructions. Some of the assignments are too general to present anything for review. State v. Miller, 357 Mo. 353, 208 S.W.2d 194, 201.
Error is assigned on the overruling of defendant's challenge to venireman Lyman Ator for cause. It is insisted that defendant was deprived of one of his challenges and had to use a peremptory challenge to strike Ator's name. Ator qualified as a competent juror, but for personal reasons said he "would rather not serve on this case." He was further questioned at length by the court and counsel and the challenge for cause overruled. The trial court has wide discretion in determining the qualification of jurors. Sec. 4061 R.S. 1939; State v. Poor, 286 Mo. 644, 228 S.W. 810, 814. No abuse of that discretion is shown. State v. Baker (Mo. Sup.), 285 S.W. 416, 417; State v. Lewis, 323 Mo. 1070, 20 S.W.2d 529, 535; State v. Salts, 331 Mo. 665, 56 S.W.2d 21, 23.
In conclusion it is insisted that defendant did not have a fair and impartial trial. All alleged errors are reviewed and reference is made to many matters that are not shown by the record. All assignments of error based upon the record have been reviewed and no ground of reversal appears.
The judgment is affirmed. Bradley and Van Osdol, CC., concur.
The foregoing opinion by DALTON, C., is adopted as the opinion of the court. All the judges concur.