*1 judgment be filing opinion; otherwise the day's of the Barrett, GO., concur. cause Westimes and the remanded. reversed adopted C., foregoing opinion PER Bohling, CURIAM: The Tipton, J., concur, Ellison, J., P. as the court. J., Leedy, absent. Roy Respondent, Appellant. Missouri, Whipkey, v. Howard
State (2d) No. 41056. 215 W. 492. Two, Division December 1948. appellant. A. Shenlcer for
Morris
Ctt Ci-
cn n cn> *3 Watson, Assistant M. Bamnel Attorney General, and Taylor, B. J. Attorney General, respondent. of conviction of
judgment assessed was life imprisonment. ment [493] *4 WESTHUES, C. murder in the second Appellant, Whipkey, appealed from a degree. punish- *5 . The justifies state’s evidence the following statement. On the evening July of 29, 8:30, at about eight there were per or more sons in a tavern located at Broadway, 2023 North Louis, St. Missouri. Among present those Berg were Lewis and deceased, Bobbie. Jean Kerr. Berg purchased drinks sitting those the'bar and while immediately went and
in entered paying the act of for them defendant de he saw that stated witness up Berg to and Bobbie Jean. One screamed; that Jean whereupon Bobbie Berg back, fendant stab in the times. three Jean immediately Bobbie the stabbed defendant then the defendant and -struck up a chair present picked One of the men collapsed and from tavern fight and a ran the followed. Bobbie Jean Defendant of the tavern. upon floor Berg on the sidewalk. fell the the in men, and while by of tavern, ran from a number pursued the to where ran back He then cut his own throat. attempted street to her down, and stabbed sidewalk, face lying Bobbie Jean was on the she was -hospital a where to three times in the back. She taken was morgue. a body to her was taken pronounced dead and from there had, in his a appellant A butcher-knife number of witnesses testified by supported the happened is hands. The statement of what above eye-witnesses.1 The state’s evidence practically of all of the evidence keeping com had been disclosed that the defendant and Bobbie Jean pany [494] and had lived together in the State of California. The produced in the defendant state also evidence that while California him, found had threatened that if ever left or he ever Bobbie Jean anpther man,1 kill evidence that her with he would her. There was evening tragedy looking on of for de the- the defendant was .the ceased and called at her home three times. -
Defendant testified in his own behalf. His version was about as tavern, people follows: That he walked into the saw a number of them; he,did Berg, but knew none of that not see the deceased or they standing but that came in later and were close when glass man next to him a immediately grabbed turned over beer him, whereupon his shoulder and struck a ensued; free-for-all that attempted he saw Bobbie Jean and that she stop fight, to in particular prevent to striking him, she from others the de- .tried fendant. He testified he loved Bobbie Jean and would not have hurt any any her under making against circumstances. He denied threats her when he knife, California stated that had no no stabbed only against one and defended himself upon assaults made him. hospital Defendant was taken to a and his most serious wound found to be a cut across throat which had severed the windpipe. He also had other .bruises and cuts. many
Appellant points briefed seeking a reversal of the con viction. We will discuss two these -which in our require granting of a points new trial. Other will be very considered briefly. question is, The first briefed that the court erred in giving credibility number six on the instruction of witnesses. portion alleged the instruction to be erroneous is the uno, “falsus in falsus omnibus” clause. It reads as follows: . you connection “In this are further instructed you that if believe knowingly has any wilfully witness falsely to any sworn
569
portion of
witness’
fact, yon
reject
any
all or
such
material
should
’’
testimony.
reject
you
.
should
clause,
We are of the
.
that-the
testimony,”
province
any
all
invades the
portion
or
of such witness’
S.,
jury and
See 23 C. J.
of the
renders
instruction erroneous.
Waller,
1180,
720;
Cushing,
215;
see.
29 Mo.
v.
page
State v.
State
9), 333
Tucker,
(2d) 453, 1.
(8,
259
62
c. 456
445;
S. W.
State v.
S. W.
171,
(8).
jury
Mo.
1. c. 179
instructions should inform the
Such
any
wilfully
knowingly
in substance
that
witness has
sworn
falsely
any
disregard
as to
fact
such
material
in
it should
is^ue
testimony
may
false
reject any
testimony.
alb
or
witness’
such
23
720,
1180;
C. J.
Mounce,
sec.
State v.
17 S. W.
Appellant also contends did the evidence claims that The state and accident. on self-defense To decide this question instruction. justify of either giving not ap support to if there is evidence record must examine .the we have been shoiild instructions must hold theory, then we pellant’s briefly evidence, as above theory. Appellant’s covering that given general man and a by an unknown assaulted he was outlined, is that intro himself. The state to defend all he did was fight followed; that building ran from the he was when defendant evidence that duced chairs in their hands. pieces had of broken men who pursued two in while he was tavern the further testified that The defendant following occurred: Berg Mr. and Miss Kerr you anyone there besides
“Q. see Did No,-I believe I did. A.- don’t you knew? that your A say you Exhibit life
£iQ. never saw this State’s You courtroom, right? Repeat you is that A. saw it time before you question, please? will that your A, say you never in lifetime saw State’s Exhibit
”Q. You right? right. A. is that That’s knife’ [495] ‘‘Q. You don’t know who cut you nor with what you were cut, right? right. that A. That’s anybody No, say a knife?
”Q. see have A. I couldn’t Didn’t truthfully I did. you
‘‘Q. you you know Do where were when lost consciousness? place; A. Inside the tavern some I don’t know. you ”Q. inside or outside? A. Inside. Were I don’t remember ’’
the outside. change ”Q. you Whipkey, J that-.- Mr. everything you did do yourself? Yes, could to defend A. sir. swinging at “Q. you they Did swing were people as same
you? Yes, A. sir. ' object “MR. that. honor, BURNS: Your I want to to “The Court: Overruled. “Q. hitting you, is from trying stop
Bobbie Jean them to *7 was right? that what she my knowledge A. To the of that’s best doing.
“Q. A. That’s right? right them, She was in midst of that the correct.
“Q. right. you things? grapple Did A. That’s different “Q. any time, is objects Chairs and available at that were that right. that correct? A. That’s
“Q. you every having your Do recall knife in A. No.” hand? It be appellant noted that did not claim he struck deceased in Indeed, trying him prevent self-defense. he said she was to aid and striking general fight others him. in from If the defendant struck assaulting accidentally parties the him and struck the deceased caus ing S., page 981, her death it was homicide. 40 accidental See C. J. However, (e). acquittal theory see. 112 to entitle him to an on that justified acting the defendant have in must been in self-defense as against parties. the third In such a situation instructions should be given guiding jury deciding question. the the See State v. Stall ings, 1,Mo. (2d) 643, 334 64 S. W. c. (2); Stallings, 1. 644 State v. 326 1037, 33 W. (2d) 914, Mo. S. 1. (2); Crowley, c. 916 State v. 345 Mo. 139 1177, (2d) S. W. 473. above,
As a number points of mentioned were briefed which we need example, not consider. For slight change there awas made in one' jury of the after instructions had deliberated on a verdict for point time. Another some was based being on reference made to the by an alias. defendant The record shows entirely that this was un- intentional.
We will briefly now consider a number of other points minor preserved for Appellant says review. the trial court erred in ad mitting alleged a evidence of threat to have by- been made defendant against the deceased while in the State of Appellant California. upon relies the remoteness of the threat. We deem the evidence en tirely competent. The alleged defendant is to have said he would,kill deceased he found with her another man. That is what the state contends the defendant did. threat, The if made, was evidence of and motive even if rather remote was admissible. 40 S., J. C. page 1378, 242, sec’s. 243. Appellant urges prior evidence of a conviction was er roneously admitted because the alleged indictment the defendant had robbery been convicted degree the first but that the state offered evidence the defendant had been convicted of robbery in the first
571
degree by
of a
is no
dangerous
deadly
means
There
weapon.
and
merit in this point.
any,
The
immaterial.
-variance,-if there was
was
Robbery by
deadly
of a
fact rob-
dangerous weapon
means
is in
bery in
degree.
the first
designates
so
the offense. See
statute
R,
4450
A.,
merely
and 4453
Mo.,
sec’s.
Mo. R. S.
4453
S.
1939. Sec.
greater
a
punishment
fixes
means
robbery
in case a
is perpetrated
dangerous
of a
deadly
(2d)
Shuls,
44 W.
weapon.
In State v.
94,
245,
329
degree
Mo.
an
robbery
we held that
in the first
included
áet committed with or
dangerous weapon.
without a
also State
See
Curtis,
v.
(2d)
S. W.
Again, appellant says trial court should have stricken from all indictment a prior reference to conviction because indict- allege discharge ment failed to the date defendant’s from the [496] penitentiary. necessary. We hold this was not The indictment charged Roy that “. . . Whipkey, aliases, said Howard duly discharged penitentiary from said of the State Missouri after ’’ upon compliance lawful with said sentence. This was sufficient. *8 police they
After the arrived on the scene asked defendant question the about occurrence and he to refused The answer. state permitted by prove was to this the police objected officers. Defendant objection the was question overruled. We discussed this in the but Battles, .case of 1223, State v. 357 Mo. 212 W. (2d) 753, 756, S. 1. c. (10). (6) (7, 8) (9) 757 a opinion On retrial the in the Battles case guide. lengthen will a We opinion by serve as need not repeat ing-what was there said. point
The unduly last briefed is that the trial court restricted attorney witnesses, defendant’s in his of cross-examination state’s particularly to a as witness who was guilty asked she had of been conduct, certain an affirmative answer to which would have tended to chastity. to discredit her as her The extent of such examinations rests largely within the discretion clearly of the trial court and unless appellate abused an court will not 894, interfere. 70 C. J. sec. 1098. We must also note that since the case of Williams, State v. 100 A. L. 1503, R. 884, (2d) 337 Mo. 87 S. 175, reputation the of a witness W. veracity for truth and cannot be impeached, put by unless in issue party, by the other showing he a reputation bears bad morality. for logical only would seem It then that the same should be ap true as plied to cross-examination specific on of conduct, acts an affirmative which tend impeach swers to would to chastity. the witness as to 70 874, 1093; 610, see. 28 R. L. 200; C. J. C. sec. State, Butler v. 113 699, (2); 1. Co., So. c. Kolb v. R. 72, 700 Union 23 R. I. 49 392. Atl. What was in the subject said case on this applicable Williams also question presented ’to the now for review. No purpose useful by again considering length. be served the matter the of In case Bagby, 951, 338 Mo. (2d) State v. 93 241, S. W. 248, 1. c. a witness
572 crim place asked if he did a for notorious not make-his hideout ques right inals. to a This court held that state had a ask such the by tion for his purpose discrediting impeaching the the witness . question presented discussed or character. now before us was not for a review. The case was a for defendant witness bondsman charged robbery. a no with If the witness maintained hideout for it him his torious criminals tended to discredit as a witness because of a friendliness interest in the defendant. That is different situa tion than we have before us now. Evidence moral character what chastity is often made an issue in a ease and when done this is subject Fergu the is admissible. See ease of State v. evidence on (2d) 38, 41, (7-9) W. 1. 42 son, (10, 11), 46, c. 353 Mo. 53 1. c. did (3). ruling hold trial court not err in its in sustaining We to objection the cross-examination. judgment error indicated the For is reversed and the cause Bohling Barrett, CO., retrial. remanded concur. foregoing PER opinion CURIAM: The Westi-iues, C., is All adopted judges as of the court. except concur J., Leedy, absent. Normandy of Missouri at the Relation of
State Fire Protection District, Relator, v. Missouri, Auditor State Smith, Forrest Respondent. (2d) 41235. 216 S. W. 440. No.
Court en Banc December 1948. *9 Boy Bergmann H. for relator.