State v. Priest
| Decision Date | 15 December 1908 |
| Citation | 114 S.W. 949,215 Mo. 1 |
| Parties | THE STATE v. W. B. PRIEST, Appellant |
| Court | Missouri Supreme Court |
Appeal from Monroe Circuit Court. -- Hon. D. H. Eby, Judge.
Affirmed.
J. H Whitecotton and E. L. Alford for appellant.
The record shows the introduction of certain circuit court records and certain justice of the peace records which tended to prove that defendant had been convicted of misdemeanors. Defendant insists that it was reversible error on the part of the court to admit said records in evidence over his objections. There was no testimony in the case tending to show that William B. Priest and W. B. Priest, defendant in this case, are one and the same person, and without defendant W. B. Priest being identified as the same person as William B. Priest said records showing William B. Priest as defendant should not have been admitted. The doctrine of idem sonans not applying and the party convicted in said courts not being identified with defendant in any way, the judgments were not primafacie proof that defendant W. B. Priest was the same party. State v. Griffie, 118 Mo. 188. Defendant is charged with an assault with intent to kill. The testimony in chief tends to prove the assault as charged. The defense tends to prove that the assault charged was made in self-defense. The State rested its case on the testimony of the prosecuting witness and one of the eye-witnesses, in which testimony there is no suggestion of any attempt at impeachment, and under the law there could not properly be any. Defendant in the presentation of his defense testified only as to the difficulty and facts leading up to it. There was no testimony on the part of defendant or his witnesses as to defendant's character. At the close of defendant's case the State offered said witnesses and they gave testimony which tended to prove that defendant's reputation for morality was bad. This testimony as clearly shown by the record was not offered for the purpose of affecting the credibility of defendant as a witness, but to prejudice the jury against defendant and thereby secure a conviction. This evidence was not directed to the impeachment of defendant in his character as a witness, but as a defendant only. Defendant not having put his character in issue, this was error. State v. Beckner, 194 Mo. 281.
Herbert S. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.
(1) The evidence introduced by the State after defendant took the stand, showing the general reputation for morality of defendant, was perfectly proper. State v. Beckner, 194 Mo. 281. (2) The court records, introduced in evidence showing that defendant had been convicted of various offenses, were admissible. Secs. 2637, 4680, R. S. 1899; State v. Heusack, 189 Mo. 295; State v Blitz, 171 Mo. 530. Defendant makes the point for the first time in his brief that there was no evidence to show that William B. Priest and W. B. Priest, the defendant, were one and the same person. In objecting to the introduction of the records at the time of the trial, and in his motion for new trial, he did not object to the testimony upon this ground, and he cannot now charge such error. Under the circumstances, he should have taken the stand and testified that he was not the William B. Priest convicted in the cases mentioned, if such was the fact. As he did not do so, and did not properly object to such testimony, the presumption must be indulged that he is the same party proceeded against in the cases mentioned; or, that he waived his objection to the testimony upon the theory now advanced. The court will note that some of these cases were against W. B. Priest and some against William B. Priest. (3) The 7th instruction, telling the jury that they could take into consideration defendant's good character in determining his guilt, is also criticised as being "unwarranted by the testimony." We admit that there was only meager testimony that the defendant's character was good, hardly enough to form the basis for such an instruction. Defendant was not prejudiced by the instruction, however, but rather benefited, for the instruction assumed that there was evidence of defendant's good character.
At the December term, 1907, of the Monroe Circuit Court, the defendant was found guilty of felonious assault with intent to kill, and his punishment assessed at a fine of one hundred dollars and imprisonment in the county jail for a period of three months. He appeals.
The testimony tended to prove that on the 29th day of September, 1906, in a saloon at Stoutsville, Monroe county, the defendant shot and wounded one Towney Finnegan. Finnegan was about to leave the saloon when the defendant and some others came in. The defendant called to him and said that he wanted to talk to him. Finnegan stopped and the defendant walked up to him and said. "I heard you said Montgomery whipped me easy up at Clapper." Finnegan replied that he did not know that he said anything about it, and that there was no need of their having any trouble over the matter; and just then, according to Finnegan's testimony, the defendant struck him with his left hand and put the other hand back to his hip pocket. Finnegan grasped the defendant's arm and pushed him back into the bar room, where the scuffle continued until the saloonkeeper, John Buckman, came out from behind the bar and separated the men, telling them that he wanted no trouble in his house. After the combatants were thus separated, and some six or seven feet apart, and while the saloonkeeper was holding the defendant, the latter pulled out his pistol and shot at Finnegan, the ball striking him in the neck, near the collar bone. After the shot, Finnegan, who was wounded but slightly, rushed over to the defendant and helped to hold him while his revolver was being taken away from him, and then Finnegan left the saloon. It appears from the testimony that the defendant and one Montgomery had a fight at Clapper some two months before, and Finnegan testified that the defendant appeared to be mad at him ever since then. The defendant accused Finnegan of taking sides in this quarrel, and refused to permit Finnegan to wash the blood off his face after this prior encounter, telling him that he did not want to have anything to do with him.
The testimony is very conflicting as to who began the difficulty, the prosecuting witness and the defendant each testifying that the other assaulted him. Several witnesses for the defense testified that Finnegan struck the first blow. The defendant himself testified that Finnegan struck him several times, and was striking him at the time he drew his revolver and shot. There was some evidence that one of defendant's eyes was blacked and Finnegan's face scratched up as results of the encounter.
There was considerable testimony to the effect that the defendant was of a quarrelsome disposition, and that his reputation for morality was bad. The court records were introduced by the State to show that the defendant had been convicted of a number of misdemeanors. Several witnesses for the defendant testified that his reputation for honesty and morality was good.
It is claimed by defendant that error was committed in admitting in evidence, over his objections, the records of several judgments showing the conviction of Wm. B. Priest of felony and of misdemeanors, without first proving that the defendant, W. B. Priest, was the same person as the said Wm B. Priest. The defendant's objection at the time to the introduction of this evidence, as also appears from his motion for a new trial, was a general one, which, as has been held by this court in a long...
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