STATE V. CHARLES W. SHILKETT, Appellant.
No. 40454
Supreme Court of Missouri, Division One
October 13, 1947
204 S.W. (2d) 920 | 336 Mo. 1081
The seventh and final assignment in the motion for new trial charged misconduct of a female juror during the recess between the first and second days of the trial. At that time the evidence for the State had already been introduced, but that for the defendants had not. It is alleged the juror talked about the case in the presence of divers persons; and expressed the opinion that the defendants were guilty and matters looked pretty bad for them. The unverified motion states thesе facts did not become known to appellant until after the trial was over.
The court permitted appellant to introduce evidence on this assignment. A Mrs. Morton, who operated a millinery store, testified the juror came in, and upon being asked about the trial and whether it amounted to much, answered that they had only heard the Melvin (State‘s) side, and “it was pretty strong.” The witness admitted the juror didn‘t say she had made up her mind; nor did she express an opinion as to the guilt or innocence of the defendаnts. Norma Blackwell testified she was present and heard the other two women talking about a case in court, but otherwise didn‘t know what they said. The juror admitted the conversation but denied making the statement. She said she answered the milliner: “I don‘t know, I have only heard one side of the evidence, and I don‘t know a thing about the Henderson side.” The trial court heard all this testimony and saw the witness. We can see no reason for interfering, on the showing made. State v. McGee, 336 Mo. 1082, 1092(b), 83 S. W. (2d) 98, 104b (7).
We find no error in the record proper, or elsewhere, and the judgment and sentence are affirmed. All concur.
About 7:45 A. M., August 14, 1945, a taxicab arrived at Westwood Stables on Ballas road in St. Louis county, and stopped near the main entrance on the south side. Appellant, a passenger in the taxiсab, got out and entered the stables. A short distance inside of the main entrance one William Mottert, an employee, was seated on a trunk. He was facing east, smoking a corncob pipe and talking to Logan McDaniels, another employee. McDaniels was standing east of and facing Mottert, when appellant entered. Mottert and McDaniels did not know appellant and had not seen him before. Without speaking to Mottert, appellant walked up to him, jerked the pipе out of his mouth and said that if he ever caught him smoking a corncob pipe again he would kick him. When appellant reached out to return the pipe, Mottert observed a pistol in appellant‘s pocket and said, “You have a gun. Are you permitted to carry one?“. Appellant answered, “Yes“, showed him a police badge and reached in his hip pocket and drew out the gun saying, “And its loaded too.” Appellant unbreached the gun and the shells fell out, five fell on the floor and one in the cuff of Mottert‘s trousers. Mottert and McDaniels helped appellant pick up the shells. Appellant reloaded the gun and stood facing Mottert, and then turned toward McDaniels and shot him in the stomach. McDaniels walked four or five feet and fell. He was taken to the St. Louis County Hospital where he subsequently died. There had been no argument or conversation between appellant and McDaniels. After the shooting appellant laid the gun on the trunk and said: “Oh, my God, I shot him, but I didn‘t mean to do it. I am sorry.”
Other evidence further tended to show that around 7 A. M., August 14, 1945, the taxicab had been called to a house in Kirkwood, and that appellant came out, got in the cab and directed the driver, a woman, to drive him to the residence of a Mr. Berger on Countryside Lane. Appellant then directed the driver to go to the door and tell Mr. Berger that appellant wanted to see him. Appellant remained in the cab in front of the house while the driver went to the door and rang the door bell. She heard someоne upstairs say, “Call the sheriff‘s office,” and she went back to the cab and told appellant they were calling the sheriff. Appellant said, “Let‘s go.” Before the cab had arrived at Berger‘s home, appellant had been loading or unloading his gun and, when the driver returned to the cab, appellant had the gun in his hand and it was pointed toward the door of
Another witness, Blankemeier, testified that about 6:45 A. M., on August 14, 1945, appellant was standing on the lawn of one Louis Rozier in Kirkwood when the witness drove into a driveway nearby. Blankemeier saw appellant, heard him calling to Rozier and asked appellant not to make so muсh noise. Appellant walked across two lawns and came up to Blankemeier‘s automobile and said, “What are you trying to do, get tough?” Appellant pulled out a gun and the witness asked, “What are you going to do with that?” Appellant said, “I will show you“, and pointed the gun at an oak tree in witness’ front yard and shot at the tree. There was also evidence that at about 7 o‘clock A. M., on the morning of August 14, 1945, when state‘s witness Watkins was making a delivery of feed at the Otis Brown stables on Countryside Lane, he saw appеllant come to the stables in a taxicab driven by a woman driver. When the taxicab pulled up in front of the stables, appellant got out and came in hollering for Otis Brown. When he got to Otis Brown, he grabbed him and started wrestling with him, and then turned and shot. The bullet hit in the dirt floor about a foot from the witness’ feet. Appellant asked witness if he didn‘t like it, slapped him and asked what he was going to do about it.
Appellant in his own behalf testified that he was Claims Manager for the Kroger Company and resided in Webster Groves, Missouri, with his wife and two children. He visited Westwood Stables about 7:45 A. M., on August 14, 1945, to talk to Mrs. Crabtree about bringing his horse there to be trained. When he got out of the taxicab, he called “Helen” two or three times, and Mrs. Crabtree came to the window of her living quarters and said she would be down in a minute. Appellant entered the building and saw Mottert seated on the trunk, smoking his pipe. Appellant did not know Mottert, but thought he looked like “Popeye” and was a grouchy old man. To have some fun appellant grabbed his pipe and then handed it back to him. Mottert asked to see appellant‘s gun and asked if appellant had a permit to carry it. Appellant took the gun from his hip pocket and showed it to Mottert and showed him a police badge from Webster Groves. Appellant “broke” the gun and, when he flipped it open, the cartridges fell out. Appellant told Mottert he would show him how to load it. Mottert picked up one cartridge and handed it to appellant. Appellant “put the bullet down in one of the bottom сhambers where the hammer wouldn‘t hit it and flipped it and pulled the trigger and shot this colored man.” Appellant also
Appellant complains of the admission of the evidence concerning his conduct on the morning of August 14, 1945, preceding his arrival at Westwood Stables. The complaint is based upon the ground that the evidenсe tended to show “separate and isolated acts and crimes distinct from the one charged in the indictment.” It is contended that the evidence was inadmissible to show intent for the reason that, under the charge of manslaughter, the criminal intent required to be shown was proven by showing the commission of the act itself, citing State v. Buxton, 324 Mo. 78, 22 S. W. (2d) 635; and State v. Maddox, 339 Mo. 840, 98 S. W. (2d) 535. It is further contended that the requisite intent under the law is presumed from the use of a dangerous and deadly weapon upon the vital part of the body of another, citing State v. Malone, 327 Mo. 1217, 39 S. W. (2d) 786, 790; and State v. Minor, 193 Mo. 597, 92 S. W. 466, 469.
The well establishеd general rule is that proof of the commission of separate and distinct crimes is not admissible, unless such proof has some legitimate tendency to directly establish the defendant‘s guilt of the charge for which he is on trial. State v. Garrison, 342 Mo. 453, 116 S. W. (2d) 23, 24; State v. Buxton, supra, (22 S. W. (2d) 635, 636); State v. Flores, 332 Mo. 74, 55 S. W. (2d) 953, 955. Evidence of other crimes, when not properly related to the cause on trial, violates defendant‘s right to be tried for the offense for which he is indicted. State v. Leonard (Mo. Sup.), 182 S. W. (2d) 548, 551. One well recognized exception to the rule excluding proof or other crimes is where the evidence of such other crimes tends to establish the absence of mistake or accident. State v. Garrison, supra; State v. Buxton, supra; State v. Spinks, 344 Mo. 105, 125 S. W. (2d) 60, 64; State v. Hepperman, 349 Mo. 681, 162 S. W. (2d) 878, 885; State v. Aitkens, 352 Mo. 746, 179 S. W. (2d) 84, 90; 22 C. J. S. 1096, Sec. 683; 20 Am. Jur. 289, Sec, 310; Underhill‘s Criminal Evidence (3rd Ed.) p. 200, Sec. 153. The admission of such evidence has been approved in cases where different inferences may fairly and reasonably be drawn regarding the intent with which the alleged criminal act was done or where the surrounding circumstances are such as to be susceptible of an interpretation indicating innocence. State v. Bersch, 276 Mo. 397, 207 S. W. 809, 814 (where the evidence tending to show arson was entirely circumstantial and the fire was susceptible of explanation as accidental); State v. Fischer, 297 Mo. 164, 249 S. W. 46, 49 (embezzlement, where the act charged was susceptible of an innocent explanation); State v. Patterson, 271 Mo. 99, 110, 196 S. W. 3, 6 (robbery by extortion, where the circumstances of the act were susceptible of an interpretation indicating innocence);
In the present case the state‘s evidence tended to show that appellant had never seen Mottert nor McDaniels before. There had been no conversation between appellant and McDaniels. After the shooting, appellant placed his gun on the trunk, said he was sorry, that he didn‘t mean to do it and went and got the injured man a drink of water. Under the circumstances the shooting was susceptible of innocent explanation on the basis of accident and mistake, as the appellant‘s evidence shows, towit, that he hadn‘t seen McDaniels and didn‘t know he was there until he had been shot; and that appellant didn‘t even intend to fire his pistol, having placed only one cartridge in one of the bottom chambers where the hammer would not hit it when he pulled the trigger. Even on the state‘s evidence, the appellant was not conclusively bound to have known of the presence of McDaniels, prior to the shooting, so as to bring the case within the authorities holding that, where the proven facts are such that defendant was bound to know the nature and character of his act, proof of other offenses to show intent are not admissible. State v. Wilcox (Mo. Sup.); 44 S. W. (2d) 85, 89 (manufacturing moonshine); State v. Fenley, 309 Mo. 534, 275 S. W. 41, 44 (transportation of intoxicating liquors); State v. Lebo, 339 Mo. 960, 98 S. W. (2d) 695, 698 (rape); State v. Spray, 174 Mo. 569, 585, 74 S. W. 846, 851 (robbery, where the court said, “The facts constituting the offense, and the very act itself, as shown by the prosecuting witness, was sufficient evidence of intent. The act of defendant, if he committed it, needed no explanation to indicate intent. The act itself carried the intent with it.“); State v. Spinks, supra (statutory rape) 125 S. W. (2d) 60, 64; The сourt did not err in admitting the evidence objected to. It tended to rebut any inference of accident or mistake in the discharge of the weapon at the time and place mentioned and to show that appellant intended to discharge the weapon when he pulled the trigger. Whether appellant did willfully use a dangerous and deadly weapon upon a vital part of the body of another was an issue to be determined from all the evidence.
Appellant complains that the cross-examination of state‘s witness Mottert was unduly limited. On cross-examination Mottert was asked if August 14, 1945, was a special day of any kind and whether or not it was “V J Day.” He said he didn‘t know, it wasn‘t a holiday to him. He was then asked what “V J Day” was and he said he didn‘t know. When asked whether he had even seen the term “V J“, objection was made and sustained and an offer of proof
The cases cited deal with cross-examination which more directly tended to affect the credibility of the witnesses. State v. Davis, 284 Mo. 695, 225 S. W. 707, 709 (birth of a child before marriage); and State v. Murray, 316 Mo. 31, 292 S. W. 434, 438 (going under different names from the one given). While great latitude should be allowed in the cross-examination of a witness on matters that affect his credibility, the scope of the cross-examination on collateral matters is not without limits and rests within the exercise of a sound discretion on the part of the trial court. State v. Murrell (Mo. Sup.), 169 S. W. (2d) 409, 411, and cases cited. No abuse of that discretion appears from this record. State v. Hannon, (Mo. Sup.), 204 S. W. (2d) 915, handed down herewith.
Appellant complains that the state was permitted to question him, over objection, on matters going beyond the scope of his direct examination. On direct examination appellant was asked, “You have been present during the entire trial of this case and heard the testimony of the witnesses in this case, have you not,” to which question he answered “Yes.” Counsel then proceeded to question him about matters testified to by Mottert, towit, whether or not he visited Westwood Stables on the morning of August 14, 1945, and what happened there and he testified as hereinbefore stated. On cross-examination he was asked if he had heard the testimony of Blankemeier, Watkins, and Mrs. Combs (the taxicab driver) and, thereafter, whether their testimony was true. Over objection, he said that it was. After appellant had testified about putting only one сartridge in the pistol where the hammer would not hit it, appellant was asked if it wasn‘t a fact that a cartridge in a lower hole or chamber could not be fired. He admitted that only the cartridge under the hammer when the trigger was pulled could be fired. He was then asked if he was not familiar with guns and didn‘t he have quite a collection of guns. Over objection, that it was beyond the scope of his direct examination, he said he did not have a collection, but did have three shot guns, a rifle and pistol and took quitе a hand at quail hunting and deer hunting.
It is contended that Instruction 5 does not correctly define excusable homicide, and that it restricts the defense of excusable homicide. Instruction 5 told the jury that if they believed and found that the defendant at the time and place mentioned had a pistol and without the intentional act of the defendant the pistol was accidenally discharged and produced the death of the deсeased they should find defendant not guilty and it further advised the jury that the burden was on the state to prove beyond a reasonable doubt that the shooting was not accidental. Appellant says the instruction permitted an acquittal only if the pistol was accidentally discharged; and that it was “not a correct definition of excusable homicide for the reason that by the authority of this instruction the jury could convict defendant if defendant intentionally discharged the pistol under any circumstances, even though those circumstances would constitute only ordinary negligence.” (Italics ours). In the motion for a new trial appellant said that the instruction conditioned defendant‘s acquittal only upon the finding that the death of the deceased was occasioned by an accidental discharge of the pistol without defendant‘s intentional act; that the evidence shows an intentional act in discharging the pistol under the mistaken belief that the cartridge was not in a position to be fired, and if fired, not pointed in a manner оr direction to do harm to life or limb; that the instruction should have authorized an acquittal unless defendant was culpably negligent in arriving at this conclusion in reference to the pistol being in condition to fire a leaden bullet or unless defendant should have known the pistol was loaded; and that the instruction should have authorized his acquittal unless he discharged the pistol in a culpably negligent manner.
The instruction is not subject to the criticism mentioned. It points out that the state must prove that the “shooting” was not accidental and that, if the pistol was “accidentally discharged“, to find appellant not guilty. It does not purport to submit facts authorizing a conviction, but authorizes an acquittal under the facts
Appellant complains of the court‘s failure to give, without request, a good instruction on accidental homicide. The motion for a new trial contains no such assignment and the error, if any, may not be considered. State v. Shipman, 354 Mo. 265, 189 S. W. (2d) 273, 276; State v. Breeden (Mo. Sup.), 180 S. W. (2d) 684, 687.
Appellant next contends that the indictment charged an intentional killing, towit, that defendant, “feloniously and willfully, did make an assault“, and that Instruction 4, authorizing a conviction for an unintentional killing by culpable negligence, was improper for the reason that such a killing was not a lesser degree of the major offense charged. The motion for new trial complains of prejudicial error in the giving of the instruction “authorizing the jury to find the defendant guilty of manslaughter upon the theory of culpable negligence; that the instruction is not supported by the evidence nor authorized or allowed by the law; that the indictment charges the willful killing and the evidence shows (if anything) intentional killing; unintentional killing by culpable negligence is not an inferior grade nor lesser degree of the major offense charged, but is an offense of the same degree and may not be the subject of instruction unless pleaded.”
Instruction 1 submitted the cause to the jury strictly in accordance with the charge in the indictment. Instruction 4 submitted the cause on the theory of manslaughter by culpable negligence. Instruction 4 expressly advised the jury that if they did not find defendant guilty of manslaughter under Instruction No. 1, but did find the facts as submitted in Instruction No. 4, “then the shooting of Logan McDaniels was the result of the culpable negligence of the defendant” and the jury should find him guilty and assess his punishment as therein set forth. By their verdict the jury found appellant “guilty of manslaughter, as charged in the indictment.” If it be
Error is assigned upon the refusal of certain instructions tendered by appellant. The motion for a new trial merely states that the court erred in failing and refusing to give the instructions. Such an assignment of error is too general and presents nothing for review on appeal.
It is contended that the court erred in permitting improper and prejudicial argument by the prosecuting attorney to the effect that defendant had not called certain witnesses who are charged to have been unfriendly and unavailable to defendant and whose names were endorsed on the information by the state. The record shows that appellant‘s attorney, in argument, asked why the state had not brought in certain named witnesses, towit, Mrs. Crabtree and one Nichols, to tell “where the blood was on the floor.” The reply was that Mrs. Crabtree was under subpoena and had been present and if appellant wanted to contradict Mr. Mottert with Mrs. Crabtree he could have called her to the stand. The record fails to show Mrs. Crabtree was unfriendly or unavailable to defendant or that she was demonstrably friendly to the state. While the shooting was at her place and her employee was killed, appellant testified that he had seen her on several occasions before the date of the shooting He called her by her first name, Helen, and after the shooting he went up to her apartment and told her about the shooting.
In the motion for a new trial it was not contended that the argument was error because the named witnesses were unfriendly to appellant, but only because their names had “been endorsed by the state.” This was insufficient to show that they were unfriendly to appellant. Under the circumstances shown by the record there was no reversible error in the trial court‘s ruling that the argument was only rebuttal of a matter opened up by the defense. State v. Beasley, 353 Mo. 392, 393, 182 S. W. (2d) 541; State. v. Collins, 350 Mo. 291, 165 S. W. (2d) 647. The court did not abuse its discretion in overruling the objection. State v. Demaggio (Mo. Sup.), 152 S. W. (2d) 71, 72.
Error is assigned on the court‘s action in permitting the prosecuting аttorney to ask the jurors to consider whether Berger had children in his home when appellant‘s pistol was pointed at Berger‘s door. It is contended the statement “was an attempt to induce the jury to consider evidence of defendant‘s acts and other
The statement and argument complained of was in reply to prior argument of appellant‘s counsel about giving appellаnt and his “family” a chance and not to single them out from other people of the community. The reply was to the effect that the defense was relying upon the jury having sympathy for the wife and family of appellant. Counsel then proceeded, “Was he thinking of any children in the home of Andrew Berger when he pointed the gun at the door of the Berger home out of the taxicab?” The trial court refused to declare a mistrial or to instruct the jury to disregard the argument. The statement objected to wаs not legitimate argument in reply, as in the case of State v. Londe, 345 Mo. 185, 132 S. W. (2d) 501, 507, but was retaliatory and based upon evidence admitted for and limited to another purpose. The argument was improper, but not prejudicial. The control of argument of counsel is largely within the discretion of the trial court. Reversible error and abuse of the trial court‘s discretion, under the facts here, is not shown. State v. Hawley, supra, (51 S. W. (2d) 77, 79).
Finding no reversible error in the record, the judgment is affirmed. Bradley and Van Osdol, CC., concur.
PER CURIAM:—The foregoing opinion by DALTON, C., is adopted as the opinion of the court. All the judges concur.