State v. Sherman

WALKER, J.

Upon an information filed by the prosecuting attorney of Jackson county, appellant and John Tatman were charged with murder in the first degree in having shot and killed John Lynch, a police officer, in Kansas City in said county on the night of April 30, 1913. A severance was granted and a trial of appellant was had, resulting in a conviction as charged, the punishment being assessed at death. Following the usual procedure, an appeal was perfected to this court.

The facts are identical with those in State, v. Tat-man, ante, p. 357, except that appellant in his voluntary statement, made the morning succeeding the homicide, said that when he attempted to deliver his pistol to the officer the latter lunged forward and the pistol was discharged, whereupon the officer began shooting at appellant, when he returned the fire in self-defense. That he did not intend to shoot the officer in the first instance, but that the shot was accidental. That when appellant found Tatman, his codefendant, had been shot in the foot they made away as fast as they could and were apprehended a few blocks from the scene of the shooting by a police officer named Whalen.

I. The Selection of the Jury. — Appellant contends that the trial court erred in excusing from the array a number of otherwise qualified jurors who stated upon their voir dire examination that they had conscientious scruples against finding a defendant guilty of an offense punishable with death. The action of the trial court was in compliance with the statute (Sec. 5218, R. S. 1909), which provides that persons having these scruples shall not be allowed or compelled to serve as jurors on the trial of an indictment for any offense punishable with death. The rule announced in this statute has received judicial approval without express reference thereto in State v. David, 131 Mo. l. c. 390. Nor did the court err in refusing to exclude from the trial panel two jurors who stated on their voir dire examination that they had formed opinions in regard to the case from having read newspaper reports but that this would not influence them in finding* a verdict according to the law and the evidence. [State v. Church, 199 Mo. 605, 631; State v. Darling, 199 Mo. 168, 196.]

II. Rulings on Evidence. — Appellant contends, that the court erred to his prejudice in the admission and exclusion of testimony. We have carefully reviewed the record and find that many of the objections, made to the court’s rulings were general, or that counsel for the appellant urged that the testimony objected to was “incompetent, irrelevant and immaterial and that it tended to prove no issue in the case.” Objections of this character will not suffice for a basis for an exception unless the testimony offered is inadmissible for any purpose, and the testimony objected to-was not of this class. [State v. Castleton, 255 Mo. 201.] Moreover, while much of the testimony complained of was irrelevant and the time of the trial court was unnecessarily taken up in its introduction, it was not, under a reasonable construction of same, prejudicial, and appellant’s complaint in this regard is not well founded. In the presence of unquestioned guilt, only errors which, upon a fair interpretation, tend to prevent an impartial trial should be considered sufficient to work a reversal.

III. Cross-examination, of Appellant. — Appellant contends that counsel for the State should not have been permitted to ask him why he was at the time out in the neighborhood where the shooting occurred, the objection being that appellant had not been examined in chief in regard to this matter. Appellant had, however, stated that he was in the neighborhood the night of the shooting with his codefendant, Tatman, and the appellant’s testimony properly subjected his conduct to examination, especially as he had stated that he and Tatman had fled when they saw the police officer coming out of the drug store. The statute (Sec. 5242, E. S. 1909) subjects a defendant who testifies in his own behalf “to cross-examination, as to any matter referred to in his examination in chief,” and he “may be contradicted, or impeached as any other witness.” Having stated that he was in the neighborhood, the State was authorized in eliciting or in attempting to elicit from him all the facts relative to his presence on the night and at the place where the crime was committed. As we said in State v. Miller, 156 Mo. l. c. 85, the cross-examination of a defendant in a criminal case is not confined to a mere categorical review of the matters stated in the direct examination. And in State v. Barrington, 198 Mo. l. c. 81, we said that to warrant a reversal on the ground of an improper cross-examination the statute must be given a reasonable construction and the cross-examination must be in regard to matters material to the cause concerning which the defendant did not refer in his examination in chief, or, if immaterial, it must be upon subjects tending to prejudice the jury against the defendant. These cases are authority for the further cross-examination of appellant as to his reason for having a pistol in his possession on the night of the crime. These facts, and others upon which he was cross-examined, had been referred to in his examination in chief, and hence the cross-examination was not erroneous, not only under the express terms of the statute as construed in the cases referred to, hut for the additional well founded reason which has received our approval in State v. Feeley, 194 Mo. l. c. 315, that a cross-examination such as this was not prejudicial to the defendant, in that the matter elicited is principally immaterial although not referred to in his examination in chief, and will not authorize a reversal of the judgment. The court says further in the Feeley case, supra, that the Legislature could not have intended, in passing the law limiting the right of the State to cross-examine the defendant, that its violation, in regard.to immaterial matters not hurtful to the defendant, would suffice to work a reversal. The latitude allowed in cross-examination upon the varied phases presented by the cases reviewed has been exhaustively presented in the respondent’s brief, q. v.

IV. Evidence of Other Crimes. — Certain witnesses testified that appellant and his codefendant on the night of the killing and prior thereto had revolvers in their possession, or were carrying concealed weapons. Appellant contends that the admission of this testimony was error, on the ground that it was evidence of another and a distinct crime, disconnected as to time and place, and having no connection with the crime charged, nor tending to prove the same.- Appellant admitted on the stand that he “pulled his gun out of his pocket and started to hand it to the police officer,” thereby confessing himself guilty of carrying concealed weapons. This statement was also made by counsel for appellant in his opening statement, in which he said that appellant would so testify. In the presence of these facts, the admission of the testimony in question having the same .effect and a like probative force as the admission of appellant and the statement of his counsel, the former could have suffered no prejudice.

The general rule is that in making proof against a defendant in a criminal case, the prosecution may introduce in evidence all relevant facts and circumstances which tend to establish any of the constitutive elements of the crime for which the defendant is on trial, although it may be developed by such evidence that he has committed other crimes; but proof of other crimes is never admissible as substantive evidence of the offense on trial and the rule extends to proof of accusation of another crime as well as evidence of its actual commission. General as this rule is in its application, it is subject to a number of exceptions, which the curious may find elaborately discussed in 1 Wharton on Criminal Evidence (10 Ed.), page 59 et seq. Aside from these exceptions, however, if appellant and his counsel had not by admissions neutralized whatever hurtful effect might have been produced by the admission of evidence in regard to the carrying of concealed weapons by appellant, the testimony in regard to same was not improper under the rule that evidence of the possession by appellant of instruments with which a crime was perpetrated may be admitted to show an intent or purpose to commit the crime with which he is charged, although such proof implicates him in another and different crime. [Commonwealth v. Wilson, 2 Cush. 590; Commonwealth v. Gallagher, 124 Mass. 29; Commonwealth v. Levy, 126 Mass. 240; People v. Larned, 7 N. Y. 445; Robbins v. People, 95 Ill. 175; People v. Hope, 62 Cal. 291; State v. Wintzingerode, 9 Ore. 153; Ruloff v. People, 45 N. Y. 213; 2 Wharton on Criminal Evidence (10 Ed.), p. 1557.]

V. Instructions. — Appellant assigns as error the giving of all of the instructions. We have carefully reviewed them and find them to be in the forms that have frequently been approved by this court. Declaring as they do the law applicable to the case under the evidence, we hold appellant’s contention in this regard without merit.

VI. The Verdict. — It is claimed that the evidence does not warrant a verdict of murder in the first degree. The entire atmosphere of the case is indicative of a design and purpose of the appellant and his co-defendant to kill if their apprehension was attempted. Armed with deadly weapons, they were in the nighttime “skulking” (the word is not too strong) in the neighborhood where the shooting subsequently occurred. A most searching cross-examination failed to elicit from the appellant any reasonable explanation for his presence there with his codefendant at the unusual hour of 11:30 p. m. Upon seeing the officer they fled precipitately. Called upon to stop, they did so, with the result that the officer received five mortal wounds. That he fired a shot is not shown by the evidence of a single witness except appellant and his codefendant. Disinterested witnesses testified that the officer did not fire a shot, and the correlative facts give credence and force to this testimony. The jury did not believe the testimony of appellant and his codefendant, but by reason of their testimony the court properly gave an instruction for murder in the second degree and lesser degrees of homicide, and they have no ground of complaint on this score. The fact is that under the evidence the trial court was liberal in its instructions, and appellant received the benefit of every fact in evidence upon which an instruction could properly be predicated. The verdict for murder in the first degree was authorized under the evidence, and we overrule appellant’s contention to the contrary.

VII. Remarks of Prosecuting Attorney.- — -The remark of the prosecuting attorney that “the people of Jackson county did not believe in highwaymen, bullies or murderers ’ ’ is most seriously complained of by appellant. Prosecuting attorneys as a rule should confine their remarks to a legitimate discussion of the facts developed on the ‘trial and to the instructions based thereon. [State v. James, 216 Mo. 394.] This does not mean, however, that counsel may not in argument discuss the prevalence of crimes such as that for which the defendant is on trial, if same exists, and also indulge in such comments as may legitimately be based thereon. [State v. Hilton, 248 Mo. 522.] Nor is it error for a prosecutor to state his conclusions in argument as to the status of the public mind, as in this case, either in regard to crime generally or as to the particular class of offenses or offenders then under consideration. The test being in each case: Are the remarks, fairly construed, prejudicial to the defendant? Neither invective by a prosecuting attorney, if called forth by the character which the evidence tends to disclose, nor urgent appeals to the jury to do their duty, will justify the reversal of a judgment. [State v. Zumbunson, 86 Mo. 111.] That the people of the county in question or of any locality for that matter, do not believe in the class of characters designated by the prosecuting attorney, but do believe that crime should be punished, is, as suggested by respondent, simply the statement of a truism. There is in the remark no intimation that the jury should be controlled by other than the evidence or that the accused, if not so shown by the evidence, belonged to the class designated. In the Eogers case (253 Mo. 399, 415) we held that it was not error for the prosecuting attorney to state, “Men, it would be a disgrace for you to acquit the defendant under the testimony.” In considering objections to remarks made by prosecuting attorneys, the distinction should always be made between strong denunciation if sustained by the evidence and abuse of the defendant of which there is no evidence. [State v. Allen, 174 Mo. 689, 698.] In the instant case there was no denunciation, although, the evidence might have permitted it, but simply a declaration of the attorney’s opinion of the manner in which the people of Jackson county regarded the designated violators of the law. Appellant could not reasonably be said to have been prejudiced by this remark, and we hold his contention to be without merit.

This was a heinous murder. Appellant’s guilt was indubitable. His defense throughout was technical. He was in the trial accorded every right to which he was entitled. The judgment of the trial court should be affirmed, and the sentence imposed by the trial court ordered to be executed, and it is so ordered.

All concur.

Case Details

Case Name: State v. Sherman

Court Name: Supreme Court of Missouri

Date Published: Mar 30, 1915

Citation: 264 Mo. 374

Court Abbreviation: Mo.