State v. Phillips

233 Mo. 299 | Mo. | 1911

BROWN, J.

The defendant was convicted in the circuit court of Clark county, for assaulting, with intent to kill, one Harvey Reed; and from a judgment fixing- his punishment at two years in the penitentiary, brings the case here by appeal.

On the part of the State, the evidence tends to prove that on the 26th of March, 1909,. the defendant ■ was running a drug store in the village of Winchester in Clark county, and on that day, one Harvey Reed, who resides near that village, went into defendant’s drug store to use his telephone, but failed to reach the parties with whom he sought to communicate. He spent the day at other business-houses in Winchester, during which time he obtained and drank some whiskey. About six o’clock in the afternoon of that day, Reed returned to defendant’s drug store, and when he attempted to enter same; defendant shot at him, with a revolver, which shot, however, did not take effect.' After cursing Reed and warning him to stay out, defendant shut the door. Thereupn Reed went to the street and procured a large rock which he hurled through a glass door of the store at defendant. Defendant then shot at Reed again, wounding him in the face. Reed then threw two other rocks at defendant and was again shot in the face. From the wounds inflicted by defendant, Reed was confined to a hospital about five weeks. Reed testified that he was on friendly terms with defendant and was starting into his store to again nse his telephone when the first shot was fired.

Defendant testified that there had been an unfriendly feeling between Reed and himself, and that Reed came to the store in a drunken condition and tried to cut him with a knife; that he did not shoot at Reed until the latter threw the first rock, and then he shot at him four times. Part of the evidence for both State and defendant is somewhat improbable, but we will not invade the province of the jury by undertaking to weigh its probative force. After defendant testified, the State introduced evidence proving that he had been convicted several times for selling intoxicating liquors wihout a license, and also tending to prove that he was dishonest and not a law-abiding citizen. Defendant’s evidence tended to prove a good reputation.

As errors on the part of the trial court, defendant assigns the admission of improper evidence on the part of the State, improper cross-examination of defendant’s character witnesses, and improper argument by the prosecuting attorney and his assistants.

The first assignment of error is that after defendant had testified, the State was permitted under the guise of rebuttal to prove by witness Marvin Tall that about two weeks before shooting Reed, defendant had an altercation with and drew a revolver on witness Tall. Defendant objected to this evidence on the ground that it was not rebuttal, tended to prove no issue in the case; and moved that it be stricken out. This motion was overruled and the evidence admitted on the ground that it tended to rebut a statement made by defendant to the effect that he had not had a revolver in his hand, or had not had a revolver, for some months before he shot witness Reed.

The evidence of witness Tall was improperly admitted, because defendant did not testify that he had not had a revolver in his hand for some months. His evidence was merely to the effect that he had caused his revolver to be repaired by a gunsmith, since which time he had kept it at his store, but made no statement indicating how long he had kept it in there, or whether or not he had it in his hand during the months immediately preceding the shooting of Reed. Neither was this evidence competent to prove that defendant was not a law-abiding citizen, as that could only be proven by witnesses who knew his general reputation in the neighborhood in which he resided. Specific acts of lawlessness or moral turpitude are not admissible for that purpose. [State v. Beaty, 25 Mo. App. 214; State v. Gesell, 124 Mo. 531; State v. Vandiver, 149 Mo. 502.] The evidence of witness Tall was not admissible for any purpose, and its introduction constituted an attempt to convict the defendant of assault upon the witness Reed by proof of a separate assault or crime for which he was not then on trial; and we find that the court, committed error in letting it go to the jury. [State v. Spray, 174 Mo. 569, l. c. 586.]

Defendant also complains that the State was permitted over his objection to ask his character witnesses Ed Briekey, Frank Riney and Dick Rinev whether or not they had ever heard of defendant running a “dive” and selling whiskey without a license, and if they had ever' heard of him having difficulties with Shuman and others. This cross-examination was proper, because it only referred to matters which had already been brought before the jury by competent evidence. The State had introduced the court records showing that defendant had been convicted five times for selling intoxicating liquors without a license; which justified the prosecuting attorney in referring to his place of business as a “dive.” [State v. Thornhill, 174 Mo. 364.] The extent to which cross-examination of this character may be carried is largely discretionary with, the trial court. [State v. Harris, 209 Mo. l. c. 443.]

The court properly instructed the jury that the evidence which had been introduced tending to show that defendant was a man of bad character and that he had been convicted of selling intoxicating liquors without a license could only be considered in determining the weight to be given to his testimony, and constituted no evidence whatever of his guilt of the crime for which he was then on trial. [State v. Weeden, 133 Mo. 71, l. c. 84.]

In the face of these instructions, the prosecuting attorney and his assistants in their arguments to the jury, repeatedly referred to defendant’s bad reputation as evidence that he feloniously assaulted witness Reed. The assistant prosecuting attorney said: “A man who would sell whiskey like this man has in " violation of law, would commit any crime, and the man who bears the reputation that this defendant bears is not too good to do anything.” The prosecuting' attorney said: “I don’t think that you are going to turn a man like this loose; a man that has been convicted time and time again for a direct violation of the law, a man that has plead guilty time after time for violation of the law. ... I will say to you if I thought Joe Phillips was an innocent man I would not be here prosecuting him and the case would never have gone as far as it has. I have investigated this case from start to finish. I have been • on the ground myself. I have investigated it myself. ’ ’

All the foregoing remarks were improper attempts to induce the jury to disregard thte law as declared by the court; and the last statement of the prosecuting attorney was also an improper attempt to pursuade the jury to convict defendant because he (the prosecuting attorney) had personally investigated the facts and knew the defendant to be guilty, some of which facts perhaps were not in evidence. [State v. Wigger, 196 Mo. 90.]

However, as defendant has not brought these improper arguments of State’s counsel here in a. proper manner, we would not reverse the judgment on that ground alone. The record does not show that defendant at any time excepted to the failure of the court to rebuke the attorneys for their improper remarks. To preserve errors of this kind for review by this court, defendant should object to the improper remarks of State’s, counsel at the time they are made, calling the court’s attention to the specific grounds upon which such objection is based; and then if the court fails to correct or rebuke the transgressing counsel in such manner as the facts of the case demand, exception should be saved to the court’s failure to administer a more pointed reprimand. When this course is not pursued, we will be inclined to disregard the assignment. [State v. McMullin, 170 Mo. 608, l. c. 632; 12 Cyc. 585.] For the error of the trial court in admitting the evidence of witness Marvin Tall concerning a crime' in no way connected with the case on trial and ■ for which defendant had not been convicted, we reverse the judgment and remand the cause for new trial in accordance with the law as herein announced.

Kennish, P. J., and Ferriss, J., concur.