THE STATE V. SHERMAN TIPPETT, Appellant.
296 S. W. 132
Supreme Court of Missouri, Division Two
June 3, 1927
317 Mo. 319
The judgment is therefore affirmed. All concur.
1. WITNESS: Rehabilitation. When an attempt has been made to prove that a witness has testified under improper motives or influences, the party whose witness he is may show that he made similar statements to his trial statements before he could have been affected by such influences or inducements.
2. ————: ————: Statements Made after Inducements. Statements made by the witness аfter promises of lighter punishment, or after improper inducements or motives became influential upon his mind, cannot be used to rehabilitate his testimony at the trial; and the burden is on the State to show that such rehabilitating statements were made before the improper influences or inducements were exerted, and unless the State so shows the admission of them is error.
3. VERDICT: As Charged. A verdict reading that “we the jury find the defendant guilty as charged in the first count of the information and we assess his punishment at four years’ imprisonment in the penitentiary” responds to the charge, and does not require a reference to the information to determine what the finding is.
4. ASSIGNMENTS: Instructions. Assignments that the court erred in giving certain instructions, and in refusing certain other instructions, mentioning them by number only, are too general.
5. ————: Argument to Jury. The remarks of the prosecuting attorney in his argument to the jury are not subject to consideration on appeal, unless they are set forth with particularity in the motion for a new trial.
6. AUTOMOBILE: Failure to Report Accident: Sufficient Evidence. Testimony by all the police and judicial officials in the near-by towns that defendant did not report the accident, together with the facts and circumstances tending to show that he fled and later attempted to conceal any connection therewith, is sufficiеnt to make a case for the jury in support of an information charging him with leaving the scene of the accident without stopping or giving his name and residence and without reporting to a police station or judicial officer, after running his automobile against and killing a man on the public highway.
7. ————: ————: Information: In Language of Statute. An information charging, in the language of the statute, that defendant left the scene of the accident, after running his automobile against and killing a man on the public highway, without stopping and giving his name and residence and without reporting to a police station or judicial officer, is sufficient.
9. JUROR: Challenge: Qualification. It cannot be held that the court erred in refusing to sustain a challenge for cause to a juror, where it does not appear by whom his name was struck off. Besides, a juror who on his voir dire examination states that he will not find the defendant guilty unless he believes beyond a reasonable doubt that the facts establish his guilt, is not shown to be incompetent.
10. INFORMATION: Amendment: After Change of Venue. An amended information may be filed in the court of the county to which the case has been taken by change of venue.
11. ————: ————: Departure: In Form or Substance: Culpably and Accidentally. Under the statute (Sec. 3853, R. S. 1919) an amendment of an information in mattеr of form or substance may be made at any time before trial by leave of court. Where the information charged in one count that the defendant accidentally, and in another that he culpably, ran his automobile against a man on a public highway, and left the scene of the accident without stopping or reporting the same to a police station or judicial officer, an amended information, charging in one count that he accidentally and culpably ran his automobile, etc., filed by permission of court, was not a departure, the offense being the leaving the scene without stopping or reporting, and it being therefore immaterial whether it was accidentally or culpably done.
12. MOTOR VEHICLE ACT: Constitutionality: Enactment at Special Session: Governor‘s Message. In view of the rule that a statute is not to be held unconstitutional unless clearly so, and that every fair and reasonable intendment in favor of its constitutionality is presumed, Subdivision (f) of Section 27 of the Motor Vehicle Act enacted at the special session of the Legislature in 1921 and providing that no person operating an automobile shall leave the place of injury without giving his name and residence or reporting the accident to a police station or judicial officer, must bе held to come within the purview of the special message of the Governor submitting “the subject of regulating and licensing motor vehicles.”
13. EVIDENCE: Statements and Acts after Accident. In the trial of defendant charged with leaving the scene without stopping or reporting the accident after his automobile had struck and killed a man on the public highway, the admission of evidence of what he did and said to his companion after the accident, to-wit, “We can‘t afford to stop now; they would hang me and you both; they‘ve got it in for me, you know,” is not only proper, but if the motion for a new trial does not assign its admission as error the propriety of its admission is not for further consideration on appeal.
14. ————: ————: Attempt to Destroy Evidence. In the trial of a defendant for leaving the scene of the accident, after his automobile had struck and killed a man on the public highway, without stopping or reporting the injury to officers, testimony relating to the acts of a third party in compelling defendant‘s companion in the automobile, at the point of a pistol,
Corpus Juris-Cyc. References: Criminal Law, 16 C. J., Section 978, p. 525, n. 53; Section 1075, p. 555, n. 27; Section 1243, p. 626, n. 80; Section 2599, p. 1109, n. 52; 17 C. J., Section 3342, p. 77, n. 34; Section 3352, p. 91, n. 79; Section 3485, p. 184, n. 77; Section 3580, p. 238, n. 26; Section 3633, p. 293, n. 47. Indictments and Informations, 31 C. J., Section 424, p. 827, n. 97. Motor Vehicles, 42 C. J., Section 1453, p. 1386, n. 50. Statutes, 36 Cyc., p. 944, n. 41. Witnesses, 40 Cyc., p. 2789, n. 41.
Appeal from Dunklin Circuit Court. — Hon. E. P. Dorris, Special Judge.
REVERSED AND REMANDED.
Alexander & Coffer, Munger & Munger and Smith & Zimmerman for appellant.
(1) The defendant‘s demurrer was well taken. (a) The first count of the information failed to state facts sufficient to constitute an offense. Subdiv. (f), Sec. 27, Laws 1921 (Ex. Sess.) p. 103; State v. Barnes, 280 Mo. 514, 220 S. W. 848; State v. Asher, 216 S. W. 1013. (b) The law on which it is bottomed is unconstitutional. Secs. 28, 55, Art. 4, Mo. Constitution; Wells v. Railroad, 110 Mo. 286; Stocks v. Edwards, 244 S. W. 806. (c) The evidence failed to prove beyond a reasonable doubt that defendant did not report the accident to some police officer or judicial officer. Sec. 241, Kelly‘s Cr. Law & Prac. (3 Ed.). (d) The second amended information was a departure from the original information and the first amended information, neither of which charged an offense of leaving the scene of accident.
North T. Gentry, Attorney-General, and A. B. Lowan, Assistant Attorney-General, for respondent.
(1) The information is in the language of the statute and is sufficient. Laws 1921 (Ex. Sess.) sec. 27, (f) p. 103; State v. Hudson, 285 S. W. 735. (2) It is the law now that an information may be amended after a change of venue has been taken in the case.
DAVIS, C. — In a verified information filed in the Circuit Court of Stoddard County, defendant was charged with leaving the scene of the accident without stopping and giving his name and residence and without reporting to a police station or judicial officer, after running his automobile against and killing one Fitzpatrick. Upon application of defendant, the venue was changed from Stoddard to Dunklin County, where a trial was had before the court and jury, resulting in a verdict of four years in the penitentiary, defendant appealing from the judgment and sentence entered thereon.
Defendant refused to introduce evidence, standing and rеlying on the lack of strength in the State‘s case. The State‘s testimony develops and warrants the following facts. On February 11, 1925, defendant, driving a Ford coupe, with one Curtis Tucker beside him, while traveling at a fast speed along Highway No. 25 in Stoddard County, about two miles north of Bernie, on the road from Bernie to Dexter, nine miles apart, ran into and killed one Fitzpatrick. When fifty or sixty feet away, Fitzpatrick suddenly moved from behind a truck, parked on the roadside, into the roadway, directly in the path of the on-coming car. Defendant tried to his utmost to avert striking the man, but, being unable to do so, sped on after the striking, failing to report the accident as required by the stаtute. The evidence tended to show that the accident was unavoidable. No one seems to have witnessed the occurrence except defendant and Tucker, the latter testifying on behalf of the State. Such other facts as are pertinent will be reviewed in the discussion of the issues involved.
Both defendant and Tucker were arrested ten or eleven days aftеr the accident. According to the sheriff, on the occasion of the arrest, Tucker, being quizzed by the prosecuting attorney, denied any knowledge of the accident. The sheriff then stated that the prosecuting attorney said to Tucker that he would make it lighter on him if he told the truth about it. Tucker on the trial testified that defendant was operating the Ford coupe at the time of the accident. To rehabilitate his testimony, on the ground that it was sustaining evidence, the trial court permitted C. A. Crane, a justice of the peace and police judge of Dexter, to testify that Tucker stated that he was with defendant who was driving the car that ran into and killed Fitzpatrick. The State made no attempt to show when Tucker‘s statement was made to Crane. Again, witness Pretzsch was permitted to relate that Tucker told her that defendant was driving the car that struck Fitzpatrick. The question was asked, “How long was that after Fitzpatrick had been run over that he told you?” and the witness replied, “On Friday night before you caught us on Sunday.”
We have lately considered this question in State v. Creed, 299 Mo. 307, 252 S. W. 678. We there held that it is a general rule of law that the testimony of a contradicted, impeached or discredited witness cannot be confirmed by proving that he made similar declarations out of court. However, we recognized an exception to the general rulе, to the effect that the testimony of an accomplice in crime may be corroborated by showing that when first arrested he gave the same relation of facts which he had given on oath during the trial. Our statement of the exception, in the Creed case, was too limited, for the exception is not confined to the statement made when first arrested, but it should be extended to hold that when an attempt has been made to prove or show that a witness is testifying under improper motives or influences, then the party, whose witness he is, may prove that he made statements similar to his trial statements before he could have been affected by such influences, motives or inducements. [People v. Katz, 209 N. Y. 311, l. c. 335 et seq.; State v. Maggard, 250 Mo. 335, 157 S. W. 354.]
Crane‘s relation of the conversation had with Tucker fails to develop the time of Tucker‘s statement to him. It may have taken place before the promise of lighter consequences by the prosecuting attorney to him, and before any motive obtained, in which event it was admissible; or, it may have occurred subsequent to the promise
We are unable to definitely determine from the recital whether the rehabilitating evidence shown in the testimony of Mrs. Pretzsch occurred before or after the promise of quasi-immunity, although there were questions asked from which it might possibly be surmised that the conversation occurred before motive to fabricate became apparent. Be that as it may, no facts were developed in the testimony of witness Crane tending to show the time the conversation between Tucker and Crane took place. Even if we could say that the testimony of Mrs. Pretzsch was properly admitted, it did not obviate the vice and harm found in the testimony of Crane, for the surrounding facts and circumstances may have induced the jury to give credit to Crane‘s testimony alone. The crux of the ruling is summed up in the Creed case, supra, grounded on the ruling in Legere v. State, 111 Tenn. 368, reading: “In no case, so far as we have been able to discover, has corroborative testimony been admitted when it was to the interest of the witness to make a false statement.” To hold evidence of this nature, without the exception, admissible, would announce to one having committed or intending to commit a crime that he may intentionally bolster his trial testimony by relating to subsequently called witnesses a version that would corroborate it, thereby giving it undue force and effect. This would open the flood gates and sanction testimony importing verity, gained by self-serving design.
II. Defendant attacks the verdict because it does not respond to the charge, because it refers to a pleading to determine its finding and because it fails to legally support the judgment of the court. The verdict is as follows: “We the jury find the defendant guilty as charged in the first count of the information and we assess his punishment at four years’ imprisonment in the penitentiary.” There is no merit in the attack. [State v. Bishop, 231 Mo. 411, 133 S. W. 33.]
III. Defendant complаins of the court‘s instructions given. The assignment avers error in giving to the jury instructions one to eight, specifically mentioning each number. This assignment is too general, as we have held in a number of cases, to comply with
V. Defendant charges the information failed to state facts sufficient to constitute an offense. We need not notice the information further in this regard than to state it follows the language of the statute. It conforms to the ruling in State v. Hudson, 285 S. W. 733, without being subject to the objection there made and overruled.
VI. Sometime after his arrest, Tucker, a contemplated witness for the State, gave the prosecuting attorney a written statement relative to the accident. Defеndant filed a motion to inspect the statement, which the court denied. The contemplated use was then disclaimed by the prosecuting attorney, nor was it used in the trial. The motion goes no further than requesting a rule on the prosecuting attorney to examine a written statement given him by Tucker relative to the accident and then in his possession. This was a document and provided it tended to impeach Tucker was admissible on the part of defendant for that purpose. The general rule denying the inspection of documents in the hands of an adverse party has been greatly relaxed in modern cases. In civil cases an inspeсtion of documents in the hands of opposing parties, such as papers, contracts and corporation records, upon motion, have been allowed. The cases seem to hold that it is a matter of indifference whether the document to be examined may be of actual benefit to the party filing the motion to inspect. If from the motion the document may be material, the right of inspection obtains. In the instant case the request for inspection relates to a statement given by Tucker relative to Fitzpatrick losing his life on State Highway No. 25 north of Bernie. The motion then shows that the statement may be material. We are unable to perceive why the privilege should not obtain in a criminal case, although we have been unable to find an authority in point. However, State ex rel. v. Woods, 292 S. W. 1033, a civil case, has a bearing on the question. The prosecuting attorney is both an officer of the State and of the court, and his duty extends no further than an impartial, fair and just trial of defendant. If Tucker‘s statement comprised the truth, it would have availed defendant nothing in the inspection of it. If in any
VII. Relative to the failure of the court to rеbuke counsel, the remarks of the State‘s counsel, on argument to the jury, were not set forth with particularity in the motion for a new trial and the assignment is not, therefore, the subject of our consideration. We recommend to prosecuting attorneys, however, the virtue of hewing straight to the line, not only that defendant may be accorded a fair and impartial trial, but because a circumspect presentation of the case aids the trial court in its administration of justice and relieves the appellate court of the necessity of reversing judgments and remanding causes for manifestly prejudicial procedure.
VIII. Defendant charges the trial court with error in refusing to sustain a challenge for cause made by defendant as to juror Sanford. The juror was struck off, it does not appear by whom, and did not sit on the trial. Under these circumstances no error appears. Moreover, the juror on his voir dire examination stated that he would not find the defendant guilty unless he believed beyond a reasonable doubt that the facts established his guilt. This examination did not show him to be an incompetent juror. Under these circumstances his competency to sit was to be determined by the trial court. [State v. Cunningham, 100 Mo. 382, 12 S. W. 376.]
IX. In the Circuit Court of Stoddard County the prosecuting attorney filed an information and then a sо-called amended information. In the Circuit Court of Dunklin County, after the change of venue, the court permitted, over the objection and exception of defendant, a second amended information to be filed. The error charged is the permitting of the second information to be filed in Dunklin County, after the change of venue, the crime occurring in Stoddard County. We have expressly ruled in late cases that an information may be amended,
X. Defendant again maintains that the second information is a departure from the original and amended information. The three informations are practically the same, excepting that the original informations charged that defendant negligently, carelessly and accidentally ran against and over the body of Fitzpatrick, while the amended information charged he culpably and accidentally did this. The second amended information contained two counts, the first charging that he did this accidentally, and the second culpably. The court required the State to elect on which count it would stand, the State electing to stand on the first count.
XI. The information was based on the statute found in
Defendant avers that the passage of the above seсtion violated Section 55, Article IV, of the Missouri Constitution, because it was not embraced within the proclamation of the Governor, or recommended by him in a special message. It is as follows: “The General Assembly shall have no power, when convened in extra session by the Governor, to act upon subjects other than those specially designated in the proclamation by which the session is called, or recom-
It is evident from a reading of the constitutional provision that if the act falls within the proclamation or the special message of the Governor it is valid. The constitutionality of the Motor Vehicle Act has been upheld in a terse and well reasoned opinion by SEDDON, C., in Lauck v. Reis, 274 S. W. 827. We need not reconsider the questions there made clear. We merely state that judicial notice will be taken of the official proclamations and messages of the Governor. [Wells v. Railway, 110 Mo. 286, 19 S. W. 530, 15 L. R. A. 847.] The question then arises relative to the appositeness of the statute to the special message of the Governor, on June 22, 1921, reading: “The subject of regulating and licensing motor vehicles, and fixing the amount and manner of collecting such registration or licensе fees, is probably germane to that part of the call for this session which submits the road legislation. Nevertheless, you may desire to call upon motor licenses as a means of producing a maintenance fund for the roads to be constructed and in order that there may be no doubt of it, I submit this subject also.”
We think the statute, relative to leaving the scene of accident, is comprised within the term “regulating” as used in the special message. Lauck v. Reis, supra, defines “regulate,” among others, as “to direct by rule or restriction.” It has also been defined as “a rule prescribed for conduct.” Providing for the stoppage by the operator of a mоtor vehicle after injury or damage, or the reporting of the same, is directing by restriction or course of conduct the operation or use of the vehicle. That it prescribes free operating after an accident and prescribes a punishment therefor fails to limit the force of the term “regulating” with respect to motor vehicles. In view of the recognized canon of construction that a statute it not to be held unconstitutional, unless clearly so, and that every fair and reasonable intendment in favor of its constitutionality is presumed, the assignment is ruled against defendant.
XII. Defendant finally complains of the action of the trial court in admitting evidence of what defendant did and said after the accident. If defendant means by this a relation of evidence as to his leaving the scene of accident and saying, “We can‘t afford to stop now, they would hang me and you both; they‘ve got it in for me, you know,” there is not only no merit in the complaint, but the motion for a new trial does not preserve the exception.
Defendant further suggests that he complains of evidence relating to one Hardesty compelling Tucker at the point of a revolver to accompany him to defendant‘s presence, drive with them to Mem-
For the error appearing the judgment is reversed and the cause remanded. Higbee and Henwood, CC., concur.
PER CURIAM: — The foregoing opinion by DAVIS, C., is adopted as the opinion of the court. All of the judges concur.
THE STATE V. D. C. HOWELL, Appellant.
296 S. W. 370
Supreme Court of Missouri, Division Two
June 3, 1927
317 Mo. 330
1. CIRCUIT CLERK: Embezzlement: Limitations. A circuit clerk, who appropriates public money coming into his hands, may be prosecuted, for embezzlement, under
2. PUNISHMENT: Different Grades of Offense: Embezzlement. There is no authority or principle of law preventing the Legislature from including in the same statute different offenses of the same general character, or from prescribing different punishments for different kinds of offenses. Because
3. EMBEZZLEMENT: Corruption in Office: Definition: Limitations. The words “corruption in office” used in
4. ————: ————: Equal Protection: Different Periods of Limitation. The rule of law that a statute relating to criminal procedure is void as a denial of the equal protection of the laws “if it prescribes a different procedure in the case of persons in like situation” is subject to legislative discretion in many instances, one of which is that the Legislature may determine that enumerated offenses do not necessarily affect “persons in like situation,” but may provide methods in particular classes of cases, so that persons of