State v. Huett

contradictory proof mere neither we conclude that “So will rigid party authorize nor a cross-examination statements truth general reputation his introduction of evidence as testimony veracity. given things go credit to be his Such things veracity. reputation his for truth and rather than to These general reputation upon, attack his such an do not constitute reputation.” support admit evidence to such will noted that court said: It thing, show- general reputation is but you his one “When attack statements the wit- credibility his ing matters affect thing.”' quite is another and different ness stand not affect impeaching case did so evidénce And such, credibility the witness stand statements on Little’s there Little was not tended to show that it went further and differ- That, course, quite perjury. therefore his evidence statements, contradictory by prior impeaching evidence ent than his any plaintiff, or evidence by showing he was related to witness merely on the tend to discredit statements which' would general character. affect his stand and not necessary cases the other cited to discuss We do not deem it Ap- Court A of them were referred relator. number they we find that been examined and peals. cited have Other cases ruling in conflict with the principle law not announce do opinion the conclusions Appeals. In our Court of case, by court harmony Appeals with the Orris are Court of case, Craft harmony opinion banc, and also en supra, discussed. and the cases therein quashed. It heretofore issued must be writ It follows our CC., Bohling, Cooley and concur. is so ordered. C., foregoing opinion

PER CURIAM:—The by Westhues, judges concur. All the opinion of the court. adopted 252. (2d) Joseph Huett, Appellant. L. The State Two, April 1937. Division Elmer, Johnson, Lacy, Wm. P. John R. Verne W. Jack Moore appellant. Lee Kinder for Taylor Boy McKittrich, W. Attorney General, E. J. and Olliver Nolen, Attorneys General, respondent.' Assistant COOLEY, C., information, murder, charging filed in Under Reynolds County, the Circuit the appellant Court was convicted manslaughter, years’ imprisonment pen- sentenced to five itentiary jury, ap- accordance with verdict of has pealed. represented He below able counsel here who judg- have filed here an exhaustive brief in which the verdict and challenged grounds ment are on certain briefed. therein out and set grounds shall We notice the contentions briefed and state sufficiently thereof, and, the facts following for determination our Mason, (2d) 574, recent decision in State v. not dis- shall alleged complained cuss new errors of in the motion for bearing attempt only upon trial nor state in detail facts such abandoned contentions. evening August 1935, appellant,

On pistol, with a shot may appellant and killed one Ruel Hunter. refer to as the de- admitted, Hunter killing fendant and to as the deceased. The de- being fendant’s The defense self-defense. fatal occurred encounter (cid:127) in near, sidewalk, possibly upon, (it the street or imma- here is which) near terial at or the intersection of two streets a beer near Centerville, County, Reynolds tavern in near the courthouse. following: evidence to show State’s tended The been Defendant had in and out of tavern several times that day. evening Pulley with Towards he went one to a toilet back of doing pistol a he and while so exhibited and said courthouse going night. was some kill son-of-a-bitch before There is evi dence which in the record from it be found that threat could previously Hunter defendant and referred to and that Hunter had misunderstanding difficulty said, some or had had and defendant referring thereto, jumped that Hunter him and that had onto once he, again defendant, if he it kill him. did would There was some evidence, clear, might not from which it be inferred that defendant (not witness) had an with Fox altercation one a in the beer tavern August 10th, following afternoon of Fox communi which had Hunter; with also cated that defendant and Hunter had meet afternoon, though appear the tavern that that was does there quarrel time, a between or them threats made at that ex either some evidence show cept that when Hunter tending left generally iiiside, he back tavern called to defendant or' those in cluding minutes, ten was to wait he back. would be He defendant/ The then unarmed. soon indicates that thereafter defend evidence tavern, going Pyrtle. ant left the to the office of Dr. Soon after one place that defendant and deceased met at where the homicide Defendant, Pyrtle, Pyrtle’s Dr. coming occurred. with was from Dr. going had, office tavern. He person, toward the his concealed pistol, fully single Hunter was barreled loaded. armed shotgun, carrying which he arm with the muzzle was under his pointed conflicting downward. evidence is what as to details of occurred when met. There deceased thus evidence defendant, gun?” “Where which de your asked deceased replied gun, had no to deceased fendant that he further stated short) (admittedly wanted the course conversation that he deceased, replied, latter no trouble with to which deceased statement either;” right, you any “All I if want don’t want don’t trouble making deceased, past thereupon defendant walked who was shotgun, threatening hav demonstration with his after turned, his ing steps pistol passed deceased or drew two three or “liar’1’ epithet The evidence discloses that shot deceased. men or of the two liar” used other “God damn one witnesses to. during By some the short altercation above referred de defendant, others to epithet was attributed to the use of that ceased. two fired appears from the evidence that defendant It State’s instantly, which, quick deceased’s succession, almost

shots in after side shotgun discharged, charge striking ground It hitting feet, him. rather close to defendant’s discharged purposely shotgun was appear does not whether the must have unintentionally, though that deceased it woxild se'em trigger finger when on the probably his hand about the lock in- testimony could began. shooting From defendant’s Following that intentionally. shotgun discharged ferred pistol, from defendant’s shot two three more shots were there time, with reference the precise but it is difficult to tell they fired. related, were occurrences about at one or both wounds, from effects Deceased received two gather evidence morning. from the which he the next died its is, theory and might State’s proved mortal. The either have first two they show, were inflicted evidence tends to evidence, before fired that, were according shots State’s to they mortal be discharged. proved to wounds shotgun While immediately incapacitate not did deceased. Immediately after the discharge shotgun he struck defendant over the head with it, knocking down, sprang upon beating him him and was him with by bystanders. pulled his fists until off were more than two There only pistol. them, shots from fired defendant’s "Whether all or two, fired defendant was struck before and down as were knocked stated, evidence, difficult from the above is to tell nor do we think presented material to on this appeal. it the issues There was much and, might expected, testimony conflicting confusion be is quick point. not clear on this were all in is shots succession occupied space and the encounter a short but time. testimony Defendant’s was to the effect that when met de- he momentarily, actually stop, attempted unless

ceased he did deceased; turned, his pass keeping to did so deceased he just shotgun was dis- face defendant and that before the toward fire, charged gun, though deceased raised the muzzle of said he, stomach, whereupon pointed so that about toward defendant’s shot, defendant, grabbed gun barrel, aside, pushing it that the so him; instantly, pis- he then drew followed missed and that which quick de- times in succession. Without further tol and fired several tailing voluminous, point, which is the evidence on this say, way, since only general in a it will we have do- outlined of the sufficiency question in his here brief defendant does tend- jury, State’s evidence evidence make for the a case "that tended show homicide and of defendant a felonious ed self-defense. show homicide, August 10, At the time of 13th, Hon- County. August Reynolds On prosecuting county, Dearing, judge circuit court said E. M. orable office of entered record made, caused to be filed and following county, order: of said circuit clerk undersigned Judge Court of of the Circuit appearing to the “It from obtained County, Missouri, information had from Reynolds Prosecuting Reynolds County that the Sheriff of said affidavit Huett, charged now Joseph County, L. of said County, Reynolds of the Peace of a Justice against him before filed degree; second murder' Missouri, the crime re- public interests Court that" the said appearing further Prosecuting investigated there and that charge be quire inquiry, it is ordered in the County, not interested Attorney in said McKittrick, General Roy requested that Honorable charge of take assistants Missouri, of his some one the State investigate file charge full have investigation and ' necessary facts under charge warranted information, full the end that proper may conclude case, premises. justice may done complete 'and City Potosi, County, Washington “Done at of chambers Missouri, Judge of Ex- of the 21st Judicial Circuit Missouri and Judge Missouri, Reynolds County, Officio Court Circuit of day August, 13th of 1935. this the DEARING,

“E. M. “Judge of the 21st Judicial Circuit of Missouri Rey- Judge of and the Circuit Court of ex-officio County, , nolds Missouri.” 9, 1935, Judge Dearing, Reynolds On October vacation of said Court, County made, Circuit filed and caused to record be entered of ours) clerk, following (italics the of the office circuit order : undersigned appearing “It of the Circuit Court of County Missouri, Reynolds, of State of from information and County, Missouri, Reynolds of from from the Sheriff and obtained Attorney Missouri, qualified duly General of of the State that the Missouri, acting Attorney Reynolds County, Prosecuting and of 1935, charged Huett, day August, Joseph prior the 13th of L. Reynolds County, before of Peace for a Justice and said degree murder; further Missouri, second and it with the crime of court, vacation, August 13th, 1935, made appearing that on directing requesting Attorney General and an order and entered charge take Missouri, one of his assistants to- (cid:127)of State of or some charge investigate investigation of full and file and have 'to necessary charge the facts information warranted and under case; appearing at the Gov- said and it further of 1935, 12, Attorney August Gen- ernor the State Missouri on of of Missouri, investigation said through eral of his assistants made of August 1935, 16, charge; on the said appearing it further charge degree before pending as aforesaid murder second Huett, against L. Peace, Joseph the said said Justice aforesaid, representatives dismissed state day 16th complainant; appearing that on the further Huett, August, against L. complaint Joseph said was filed L. Reynolds County, Joseph Prosecuting charging said complaint degree, first said crime murder Huett with the Pogue, W. being Ruble John on the affidavit of one Walt filed before Missouri; County, Reynolds within and Justice of the Peace charge hearing on said appearing preliminary further against was had and Joseph L. Huett degree first said murder Reynolds Pogue, Justice the Peace of held before said John W. County, Missouri, day August, that at the on 30th hearing bound said conclusion of said Justice aforesaid Reynolds County, Mis- Joseph Circuit Court of L. Huett over to the any in- thereof, souri, Term, to answer the November against Court on said him in might said be filed formation Huett, Prose- Joseph L. that said charge; appearing it further charge aforesaid, cubing afore- and defendant proceeding, said, party in is an interested and that there is Prosecuting Attorney Prosecuting Attorney or Assistant in said Reynolds charge against County not interested aforesaid Prosecuting Huett, Attorney, aforesaid; L. Joseph' and it fur- Taylor duly J. E. appearing ther to the Court that is one of the Attorneys qualified Missouri, of and Assistant General the State of McKittrick, Roy Attorney Missouri, that Honorable General of has- designated E. Taylor investigate and said J. appointed the charges against pending Joseph Huett, aforesaid; L. now said appearing Reynolds the Circuit County it further Court of and jurisdiction try charge aforesaid; has the adjudged by

“It is therefore ordered and the the Court that said Taylor, Attorney Missouri, be, J. Assistant General E. of and he is against hereby appointed Joseph Huett, to file information said L. Attorney Reynolds County, Missouri, Prosecuting of charging said Joseph degree, Huett murder-in the first L. now whereof he charged by complaint, prosecute stands affidavit and and to and on of charge behalf of the State Missouri said and information and things prosecution the all in connection with do of cause which said Reynolds Prosecuting Attorney upon County, would of fall the Mis- souri, disqualified acting were not from if therein as aforesaid. Potosi, City “Done in the of the Wash- County at chambers of ington, Missouri, by Judge of State of 21st Judicial Circuit Judge Missouri, Reynolds of and of the Circuit Court of ex-officio County, Missouri, of Reynolds in vacation County and said said Cir- day Court, October, cuit on this 4th of A. D. 1935. DEARING, M.

“E. “Judge of 21st Judicial Missouri, Circuit of Judge and of Rey- the Circuit Court of ex-officio County, Missouri.” nolds The information which the case was tried was filed October signed in vacation court. Taylor, still of It was E. “J. Attorney General within Assistant and for the State Missouri.” of 9, 1935, Judge Dearing, On November still in vacation of following court, written order and and caused made same to be filed recorded of clerk, office the circuit viz.: .and being undersigned Judge shown “It of Circuit Court of Twenty-First Missouri, Circuit of the Judicial State of and ex- Judge of Reynolds of Court County, Missouri, the Circuit officio Prosecuting HUETT, Attorney Reynolds that J. L. of said Coun- charged ty, against an Information filed stands him Hon. J. General, Taylor, E. Assistant heretofore appointed undersigned Judge prosecute cause, said on account of the being disqualified; Prosecuting appearing further Missouri, State Plaintiff Huett, of the of said case vs. J. L. Defendant, Monday, 18th, 1935, is docketed for trial on November being day regular first the next November Term of Cir- being County, of said and on cuit Court account the Defendant regular over Judge presides, said Court which the officer of Judge disqualifies sitting ease, now said from the trial of said requests Smith, Taylor Twenty-Seventh Hon. Judicial preside case, the State Missouri Circuit of of said trial Taylor Smith, Judge aforesaid, and the Hon. requested Eeynolds Centerville, appear County Circuit Court at day Term, 1935, first said November open Court, regular Judge, purpose term the absence of the for the trying case, trying purpose for the further pending matters causes before said Court until such time regular Judge may appear regular and take up duties. City Soto, day “Done at chambers of De 9th November, 1935. DEAEING-,

“E. M. “Judge Circuit, 21st Judicial and ex-offi- Eeynolds Judge County, cio of Missouri.” request Judge above-quoted appeared Pursuant Smith Eeynolds day opening County Court, the of opened the Circuit the proceeded jurisdiction to in court and assume this cause. On that day by defendant first filed a motion which by and also oral motion objection challenged Judge right and to authority Smith’s and jurisdiction preside judge assume of the cause as and to therein on ground Judge Dearing, regular judge, the that the was not shown disqualified attempting be in disqualify and himself had stated recognized him; legal grounds by disqualify law as sufficient to Judge Dearing physically mentally that and able hold try cause; court and that defendant had the to have his by qualified regularly judge case heard and elected and that said judge, disqualified law, provided unless and until authority power try cause; sole that order and re- said quest by Judge Dearing compliance not in made with Section 29, VI, Constitution, Article of the State that it was in contravention 18, II, requiring Section Article of the Constitution officer duties, 30, personally attend to his Section Ar- it violated II, in deprived ticle liberty of the Constitution defendant his process without due of law because he was entitled be (cid:127) legally judge circuit; tried elected of the that said order by Judge Dearing calling Judge made in Smith was null void upon authority and conferred latter no to act. court, Judge The presiding, Smith overruled motion defendant’s objections. exceptions. Defendant saved quash then Defendant filed motion to the information on

alleged Judge ground Dearing purporting the order made appoint Taylor, General, J. E. temporary Assistant acting prosecnting attorney was null void and insufficient Taylor authority information, confer to file said invalidity Taylor’s because of appointment purported nullity. overruled, This motion information was saving exceptions.- question arising Judge calling Bearing out of action Judge ques- try Smith to hold the court and to the case and the Taylor’s authority legality appointment tion of the of Mr. and his file strongly the information are stressed defendant’s brief and bearing upon points will first receive attention.. Further facts other will briefed be conten- stated connection the discussion of they respectively apply. tions to which question Judge Bearing’s

I. take first dis order qualifying calling 3648, Smith. Re himself and. Section (Mo. Ann., 3202), p. vised Criminal part Statutes Stat. Code, authority, enacted pursuant to constitutional Section Arti VI, provides Constitution, State cle that “When indictment any any pending shall prosecution or criminal court, criminal circuit or judge of said court shall be deemed incompetent to hear cases; try following or, cause either ... third, judge anywise prejudiced. when . .” interested or .' only part Said third subdivision of said section here thereof (Mo. By Ann., involved. section Revised Statutes Stat. 3204), things, among provided, it is that whenever it shall p. knowledge judge within the court of the causes disqualify exist, enumerated in Section him defend attorney, court, prosecuting with the ant and the concurrence agree (which may agree upon) to elect has been construed to mean special judge. law some at Section' Stat Revised Ann., 3206), judge 1929 (Mo. p. provides utes Stat. that when the any 3648, incompetent sit for the causes in is of mentioned Section supra, person and no ease will try the serve when as elected such judffe special judge, (see of court—not State the court — 859) Gillham, 174 Mo. 74 v. S. W. shall set for the case down request notify judge and another trial and circuit or criminal try case, appear hold whose it is to for duty court trial of the case. agree question upon judg'e, special denial of the a of objection

though in his assumption referred to to the , by Judge Smith, is jurisdiction urged in of his here. We brief 605), (State Newsum, v. 31 S. 129 Mo. W. where have held that court, being disqualified, judge judge circuit calls of a of showing prior in a criminal circuit case without a another the record given opportunity prosecuting to the defendant and the agree special judge, presumed judge will be a that the was try person no the ease if suitable would opinion that serve judge, competent special person that no or suitable or elected regular elected, judge the action of the or would be could waiting circumstances, judge, calling under the without in another special judge, approved. give opportunity for election a applicable is to the circumstances the ease at bar. But That case objection urged appellant’s brief we particular that is not since consider it. further need not a when, case, judge criminal held that a We have also case, judge try circuit requests the another court circuit record, presumed stat- being shown it will be that no reasons Newsum, See, also, supra. v. State utory existed. reasons [State 553; Hunter, 435, 440, S. v. 171 Mo. Hosmer, 85 State Mo. citing Kowertz, 358, 360, 675; Mo. State v. W. Newsum approval the with case.] proposition,' on this as we understand Appellant’s contention Conceding, we he in effect brief, understand in substance this: is held, Judge Dearing that if had stated does, we have above and as request calling Judge Smith have his said would reason judge sufficient, that since did state that he insists been he being an of his court disqualified appellant officer on account of exclusive, indulgence precluding the the reason so stated statutory assigned not a rea- the reason that presumption, and thereof, hence the was invalid. equivalent son or the judge, above, necessary it is not that a in dis- As have said we judge, calling record in another shall state of qualifying himself doing. suggested by respondent It his reasons for so disqualify- stating Judge Dearing’s his reason for order portion But surplusage. We do not so treat it. ing may treated as himself believe his reasons we do not judge such situation does if state though statute, that doubt- exact words of the in the he must do-so applying If states facts from he be sufficient. less would which— ground disqualification here involved—in- argument interest may inferred and out of well be prejudice terest or naturally arise, says account might prejudice himself, disqualifies presump- think the voluntarily we facts he such in- indulged he felt that he did so because may properly tion example, person judge 'a Suppose, for biased. terested long been were the time and had crime at charged in his court im- associated, say partners, them extensive and to intimately they contra, were bitter or, enterprises, business portant merely calling enemies, judge in another implacable statutory language that he saying without facts states reasonably inferred may it not be prejudiced, interested or calm and preside with that to position in himself not feel he did preju- judge? If bias or required of a impartiality dispassionate 945 judge dice mind exists tbe of tbe it does not matter whether against of favor or the accused. In either event should not sit in case. For discussion of this principle see State ex Slate, rel. v. 278 McAllister Mo. 85. Right, S. W. rather wrong, than presumed. action is This principle applied Hunter, supra, State wherein it was disquali- contended that the judge fied judge, another affording called without first parties opportunity agree upon a special judge. In the of In re Ewing, Howell and 96, 120, case Mo. “Upon suggestion we said: prejudice being made judge, . . . prompted delicacy duty sense judicial which renders him averse action upon an intimation issue, interest in the matter at will retire and call in another try . . . the' case. Such a high course indicate a would sense duty, dispassionate official well purpose as part judge to free case from even an intimation could that he fairly it/’ conduct If, coming instead of parties, “suggestion” from one of the prejudice anywise” bias or of “interest from the comes con judge science of the his action should be the same. As was said in Gates, page 403, State v. Mo. l. c. side policy “It both the Legislature and intention of our tribunals for have the deter of criminal suspicion mination cases above all upon whose —courts only prisoner community disinterestedness but the whole repose Judge Dearing’s can with confidence.” think entire request calling Judge Smith order and can and should con mean that himself strued to he felt interested or biased within meaning intendment the statute on account of the fact Judge defendant was officer of his court. It follows that Smith authority try the case. vested quash Of motion to II. the information: urges Judge Appellant Dearing authority his brief that had no charge request Attorney General to take of the case and to therein, file only information General’s author- because ity Governor, request by must come from to act and that made; appear judge does not that such and that appoint a special temporary prosecuting of a court cannot at- only torney, court. it can be done We take con- these together. tentions grounds only quash states as its motion Dear- Taylor,

ing’s appoint “purporting the Hon. J. E. Assist- order Missouri, temporary prosecut- acting General of dr ant ing . . . for the prosecution this case null and any authority in law to confer is insufficient void and case, Taylor information J. E. and that file invalidity purported the aforesaid of the aforesaid the result

946 Taylor, appointment purported E. the J. the information motion,,nor nullity.” is a Neither in herein filed in defend- overruling exceptions the action there ant’s court’s same is showing any now reference advanced claim that there is no the requested Attorney had that the Governor the General act new case. After trial and after defendant’s motion the for the filed, raising the question first trial been the time the that had Attorney act, had directed the General to before Governor by court, passed upon Taylor, for been Mr. said motion had the sought State, that the so prove the offered Governor had copy General, letter, by Attorney letter to the which directed a The thereof, Taylor, he, the files of had assumed the case. evidence, court, objection, stat- on hear defendant’s refused to the quash on the in- ing effect he had ruled the motion to at that If opinion.” “still of de- ception the trial and was the same suggested complaint fendant, quash, his motion to had advances, viz., At- now the Governor he torney that had directed the Mr. act, proof by later doubtless offered

General proof was Taylor presented. been But while that would then have trial, enough we rejected think there is when offered after finding Governor the Attorney to warrant that directed record 9, 1935, above act. of October General to In his order Dearing at stated, quoted, appearing “and it further August 12th, Missouri request the Governor the State on Attorney Missouri, through 1935, General of made his assistants ’’ circumstances, charge; investigation etc. Under all the of said nothing tending impeach re- being in the record and there finding cital, requested At- Governor had we think might torney Perhaps, even, so is warranted. General to act way, theory any proof either presumed, absent At- right If action, but this we need not decide. presumes law he to act it is not contended that torney was authorized General going one assistants instead of himself. not send of his could Ann., 585), (Mo. By Statutes Stat. Section Revised p. provided: it is attorney general, governor, the or one “When directed any assistants, prosecuting or circuit in the shall aid discharge respective duties trial in ex- their courts grand juries, when directed the trial before .so aminations sign attorney.” court, prosecuting in lieu of the may indictments 105, W. held Sullivan, 110 Mo. S. App. In State Attorney General the Governor has been directed where the discharge has attorney prosecuting of his duties he aid jury body) grand (a aid secret appear before the grand jury to advise the con of witnesses and in the examination it. cerning before matter (Mo.

In App.), State v. Cummins prosecuting attorney investigation grand and was under aby jury. Governor, The judge, at the the circuit directed go Clay County General to “appear before grand jury in a and assist near examination to be held there future.” appeared jury grand General before signed the indictment which was thus: “North T. returned Gentry, Attorney General of by Missouri.”' He not directed by sign complaint the Governor or the court to the indictment and ground. was made appeal on on that The court said: “While it seems that directing the court did not make an order Attorney sign the indictment, General to the statute does not the require any special formality making in Having the direction. au- Attorney appear grand thorized the General jury to before to the investigation having in accepted question ássist its it without grand the jury indictment the Attorney of with the name of the signed though General thereto proceeded with the cause as the Attorney sign General been to indictment, directed the the equivalent Attorney action court was of the a direction sign Duncan, 307, v. 288, General to it. W. Mo. 22 S. [State objection indictment, was made signing No of 699.] ’’ questionable is if complain it defendant can now in event. above-quoted In relating connection with the statute At- torney relating General prosecuting certain statutes attor- neys may By noted. (Mo. Section Revised Statutes Ann., 602), p. is provided prosecution attorney Stat. State, prosecute, shall attend and justices on behalf of the all cases before peace, when State a party is made thereto. Sec- disquali- 11322 provides prosecuting attorney that when the tion is by interest, stated, reasons hav- fied or for other therein “the court ing jurisdiction may. appoint attorney pros- criminal some other ecute, who, by . . .” possess power Section shall the same regular present qualified. officer if as would the was, course, indisputable apparent In the instant case disqualified An affidavit defendant was to act the State. justice peace charging a of the a had been filed before him with required offense, upon preliminary law criminal that a Ordinarily duty be held. representing examination proceeding prosecuting in would devolve upon State such at- torney The ease he could not so act. circuit court was this regularly would not be until three months session and some anywhere authority is If in such situation there vested later. person State, then, appointment to act for for the some 374, 384, Moxley, Mo. must said in “it State very place prac- a lame criminal there our confessed tice.”

"948 Attorney 11273, supra, literally,

Section construed authorizes the attorneys discharge prosecuting “aid’'’ of their General to sign court, and, by indictments when so the trial duties directed attorney. No why reason can be seen prosecuting lieu apply similarly an in- authority sign an indictment would not formation, procedure. our statutes on criminal under charged with, others, State, among sworn officer of the General of the the enforcement criminal important duties laws 11273, says statute, when Section so directed State. The may sign General indictments’ that, the trial court say pre- attorney, but it prosecuting does of the lieu formally sign appointed been must have requisite to his prosecutor authority sppcial case. That court as a directing him to Governor of the order or arises out if case—at least his action is out necessities act trial is no recognized acquiesced court where there competent to act. We limit our decision prosecuting kind. situation point to a this Dearing, disqualifying before and be- bar In the case at Tay- filed, Mr. appointing an order was made the information fore designated by pursuant to Attorney General lor, the the assistant request, representative as State and act of the Governor’s to the (though Later the court over defend- information herein. to file permitted Mr. recognized information objection) ant’s State. In view of all Taylor representative as of the proceed to act, Attorney General to Governor’s this —the assistant, Taylor, to designation Mr. of his Attorney General’s the Tay- Dearing’s Judge appointing order department, represent his recognizing subsequent court the action the prosecutor, and as lor State, the we think the action Taylor representative as Mr. Taylor by appointment Mr. the an tantamount to court the was appointment if be deemed neces- special prosecutor, such as "eourt unnecessary whether sary. We, therefore, think it to determine by Dearing’s order, standing- alone, as made it was Judge or not court, distinguished from the would have been judge in vacation Taylor authority file to the information. Mr. to vest sufficient Cummins, objection argued supra, no may in State v. that It be signing indictment General of the made to was challenged defendant, quash, by motion to such, while here sign authority file infor- Attorney General’s to the Assistant Dearing’s ineffec- ground appointment was that mation on the quash, overruling other that motion to The answer is tual. recognized therein, af- being court in effect ground stated authority represent prosecu- State in Taylor’s to firmed Mr. appointment an to if tion, was still tantamount such action we necessary. Under circumstances shown was appointment Taylor authority We rule think Mr. had file the information. against appellant. this contention fact, suggested by Taylor signed the appellant,

The further that “spe- information as “Assistant General” rather than attorney” think He prosecuting we makes no difference. cial must officially. statute, signed By indictments and informations course, attorney. signed by prosecuting provision, This literally applied prosecuting cannot be when the is dis- qualified. signed “North In the indictment Cummins case the Gentry, Attorney sufficient. T. General of Missouri” and was held rightly held. Wfe think it was so Appellant pre complains

III. that Instruction No. was “immediately” judicially erroneous of the use word because (cid:127) 6. No. therein, such cured Instruction and that error not instructions, italicizing complained of: copy word if, you instructs “On the court of self-defense defendant, Huett, the deceased Joseph when L. shot and wounded defendant, apprehend Hunter, he, Ruel reasonable cause had immediately his life design take part of Ruel Hunter pre- injury, great personal him to inflict some injury the deceased he shot and wounded apprehended vent such Ruel Hun- Hunter, he shot and wounded Ruel and that at the time believe that believing and he reasonable cause for did ter had protect Hunter necessary him shoot and wound Ruel for will, evi- danger, from the you if apprehended himself from such It is ground self-defense. you find, acquit dence him on the so real, or danger necessary been actual should have It fall. danger impending or about have been should be- ground necessary reasonable only On danger so. lieving honestly believe the and did believed; enough have so hand, that defendant should reason- he had Whether cause so believe. must have reasonable from circumstances believing you find must able cause for so find that evidence, you If, given from that in evidence. should time believing at cause for did not have reasonable defendant to de- was about Hunter that deceased he Ruel shot and wounded injury, great personal him much upon prive him of life inflict or ground self-defense.” acquit you him not on the should de- acquit the they can jury that before instructs the court find and self-defense, you must believe ground of upon the fendant appre- cause to reasonable had that the defendant from the evidence inflict was about to Hunter Ruel apprehend that hend and did danger imminent was such great bodily harm, that him some defend- will find you you believe impending, so and unless instruc- in these provided "as punishment guilty assess his ant tions. ' jury you from that if believe court instructs find and “The good believe, from the defendant had reason to

the evidence that Hunter, a Ruel words, conduct of said Hunter had acts and that harm, great injury bodily personal some or design to do was im- reasonable cause to believe there that defendant had danger design accomplished, then about to such was minent that appearances, on act shoot a to and to defendant had though design, accomplishment of such even prevent Hunter to shooting in Hunter. the death of said resulted such law did actually connection, you are further instructed “In this require or wait until was defendant to retreat to not attacked, required nicely gauge force nor was the defendant protection that any means his own used, could use for but that he reasonably necessary under circumstances.” appeared concede, argument, that if we understand his Appellant seems says, “It Instruction No. wherein the court portions necessary danger should have been actual or real is not fall,” danger impending about have been md 'the should or that “If . . . have cause and that defendant did not reasonable etc., life,” believing deprive him . . . the deceased was about to doubt, they have no correct. That are correct view are we rulings approving containing repeated court instructions of this necessary imminency reasonably to the expressions similar danger. imminency example, For State apprehended Bushong, 919, 920, 246 S. W. the instruction on self-defense .told apprehend jury reasonable cause that if the defendant had great bodily design him him part a of the deceased to kill on the or do immediate apprehend cause to harm that there reasonable out, etc., acquit. danger design being jury of such carried should substantially instruction, given, form had said that frequently approved court. “imminent” been The word Dictionary, according New means, Webster’s International hand; impending.”' immediately; “threatening near occur at ground danger, justify homicide that the order on the The idea be, reasonably appear self-defense, person must or must “imminent,” be, “impending” “about claiming defense to through subject. all on that It would fall”' runs our decisions supererogation cases. While the use of the word be work of to cite a “immediately” which it was used Instruc connection unnecessary (it might well have been tion No. omitted forms), yet approved generally follow instruction safer to jury. whole does not misdirect necessary they jury No. Instruction told -beyond reasonable doubt that defendant shot self-defense find they they a reasonable doubt that issue should if but that guilty. Reading 7 to- instructions find the defendant

951 gether, they read, in- should he can there be no doubt that structions on self-defense were fair to defendant and sufficient.

IY. is It contended that court in should not have manslaughter on structed because under the evidence defendant guilty acquittal was either or plea of murder entitled to on his self-defense. This contention cannot or sustained. Whether requiring not manslaughter was evidence submission we there charging not decide. It is well need settled" that an indictment degree charge manslaughter murder first includes 4451, Ann., (Mo. 3057), Section 1929 Revised Statutes Stat. p. guilty provides person that a found de murder the second manslaughter, according gree, punished shall be to the ver although jury, shows him guilty dict of the the evidence to be aof ' higher degree Parker, homicide. In State v. Mo. (2d) 428, defendant, charged S. we held that a with first de W. gree grade murder, where the evidence tended to show that "of of in crime, complain could court fense no not its because- degree submitted murder in the second he was con structions Davis, So we held State v. Mo. victed that offense. charged mur (2d) S. wherein defendant was W. manslaughter. degree have convicted der in the first frequently Appellant virtually concedes that such is held. so comparatively several recent de law as declared this court challenges the of those decisions asks cisions correctness good reason perceive them. We that we reconsider and overrule doing. for so jurors, appellant In-his point

V. brief makes the two de Mann, expressed opinions Chitwood formed and as to being dis guilt jurors, prior fendant’s and had failed to called juror Mann the com fact voir dire examination. As to close such trial, there plaint motion new preserved is not in defendant’s for review, preserved is so Chitwood. here for but it as to fore his this contention in Appellant or even refer to does elaborate length points printed argument, wherein he discusses at have However, made point brief we his brief. since the carefully examined juror Chitwood and have .it as to considered bearing Certain affidavits were upon that contention. the record tending that Chitwood to show with the motion for new trial filed before to defendant expressed opinion had formed and adverse new hearing motion being juror. On of the as a called question, and this pro evidence and con on court trial heard indicating finding against the defend motion, overruled the thus further presented. Without question fact thus ant on say after ex opinion it sufficient to lengthening we deem fact point, and in view testimony on this amination of the say witnesses, court saw ánd heard the we cannot trial ruling ques- finding wrong or that its on this the court’s against appellant. tion was This contention is erroneous. ruled foregoing appellant’s disposes presented of the contentions The jury ease, self-defense brief. While there evidence of rejected appears to fair that evidence. The defendant have had a supported by the verdict evi- impartial trial and substantial prejudicial judgment error The dence. We find no the record. C'G., Bottling, Westhues and concur. is affirmed. opinion by Cooley, C., foregoing PER CURIAM: —The judges All adopted opinion the court. concur. as the Belle, Maries Belle, Florence et Bank Baxter al. County al., Appellants. (2d) 265. et Two, April 21, 1937. Division

Case Details

Case Name: State v. Huett

Court Name: Supreme Court of Missouri

Date Published: Apr 21, 1937

Citation: 104 S.W.2d 252

Court Abbreviation: Mo.