State v. Hope

• Decision Date: 22 March 1890
• Parties: The State v. Hope, Appellant
• Court: Missouri Supreme Court

13 S.W. 490

100 Mo. 347

The State v. Hope, Appellant

Supreme Court of Missouri

March 22, 1890

Appeal from Scotland Circuit Court. -- Hon. Ben. E. Turner, Judge.

This cause is here upon an indictment, in the usual form, charging defendant with an assault upon Walker Hale with intent to kill. He was convicted of unlawfully assaulting, stabbing and wounding Hale and was sentenced in accordance with that verdict. He then appealed to this court after the customary motions.

The evidence, on the part of the state, tended to prove that defendant and Hale had an altercation on the public road during the course of which defendant inflicted certain wounds on Hale with a knife. That there was abundant testimony to support the verdict is not denied.

The defendant relied upon self-defense and further-more offered evidence of good general reputation as a peaceable and quiet boy as well as for veracity. In this branch of the case during the examination of a witness for defendant, the following questions on his behalf were asked and answers given: B. Riley, sworn on the part of the defendant.

DIRECT EXAMINATION.

1. "Do you live in the neighborhood of Mr. Hope?" A. "Yes, sir."

2. "Are you a relation of his?" A. "No sir."

3. "How long have you lived there?" A. "I have lived there within a half of a mile for ten or twelve years."

4. "Have you been acquainted with the family?" A. "Yes, sir."

5. "Are you acquainted with his reputation for truth and veracity in the neighborhood?" A. "Yes, sir."

6. "Is it good or bad?" A. "I think it is good."

7. "Are you acquainted with his reputation as being a quiet and peaceable boy?" A. "It is considered good."

In rebuttal the state offered some evidence regarding defendant's reputation, in the course of which the question (referred to in the opinion) arose on a motion to exclude a part of the testimony of witness Zugg. The passage from the record presenting this point is as follows:

Ernest Zugg, recalled on the part of the plaintiff:

1. "Are you acquainted in the neighborhood in which the defendant, Gustus P. Hope, resides?" A. "Yes sir."

2. "Are you acquainted in the neighborhood in which he resides with his general reputation as to being a quiet, law abiding boy?" A. "Yes, I guess I am."

By the court: "Is his general reputation good or bad?" A. "I don't know what general reputation is. I don't know what you mean."

By the court: "It is the estimation in which he is held by the people generally -- is that general reputation good or bad?" A. "I don't know what you call good or bad."

3. "What is the estimation of him?" A. "It is quarrelsome."

Objected to.

By the court: "That will not do."

By the court: "General reputation consists in the estimation in which a man is held by the people generally."

4. "They were relatives of Mr. Hale's?" A. "Not all of them wasn't."

5. "Wasn't it a fact that this talk was from the relatives of Mr. Hale?" A. "I don't know that it was, it wasn't all from them."

6. "Wasn't the principal talk that you heard from them?" A. I don't know but one family that were relatives."

Here Mr. Smoot (counsel for defendant) asks that the court exclude all this testimony from the jury as not being founded on any time with reference to this difficulty.

By the court: "Objection overruled."

To the said action of the court in not excluding the said testimony from the jury the defendant by his counsel did then and at the time except.

Another witness (Mr. Goslin) for the state was examined on the same subject and the following questions asked and answers made without any objection or exception:

5. "Are you acquainted with his general reputation for peace and quiet in the neighborhood in which he lives?" A. "Yes, sir, I am."

6. "Is it good or bad?" A. "It is bad."

The opinion states the other facts bearing upon the questions discussed in it.

Affirmed.

Smoot & Pettingill and R. F. Walker for appellant.

In attempting to impeach the defendant's reputation Edward Zugg testified "it is quarrelsome," without confining such reputation to defendant's neighborhood and his testimony should have been excluded. B. Riley, introduced as a witness to prove good reputation of defendant in his neighborhood, was upon cross-examination by the prosecution, and over the objection of the defendant, asked questions as to whether defendant ever drew a knife on Jim Wade or on John Houchens. It was also proved by the prosecution that he was once "turned out of school," etc. These are such errors as will reverse the judgment. State v. Beatty, 25 Mo.App. 214. Specific acts should not be inquired into. Seymour v. Farrel, 51 Mo. 95; State v. Grant, 79 Mo. 113. The witness for the state, Bondurant, should have taken some oath or affirmation in some form, especially in a criminal case, so as to bring himself within the provisions of section 3328, Revised Statutes, at least. It will be seen that Bondurant was one of the most important witnesses for the prosecution by reference to his testimony. The record should show the presence of the defendant each day of the trial (State v. Dooly, 64 Mo. 146, and cases there cited); and it seems that some investigation should be had under Revised Statutes 1891, to determine whether or not the defendant was wilfully or voluntarily absent at the time the verdict was received and recorded by the court. It appears that he was not present at the time the jury were sworn to try the cause.

John M. Wood, Attorney General, for the State.

As to the first point, it will be observed that the offense was committed May 4, 1887, and the trial took place in August of the same year. The witness Zugg testified that he was acquainted with the general reputation of the defendant in the neighborhood in which he resides. This fixes the time definitely enough for the purposes of the examination. This testimony was offered for the purpose of affecting the credibility of defendant's testimony, and was confined to that purpose by the instructions of the court. It was admissible in evidence for that purpose. State v. Palmer, 88 Mo. 568; State v. Grant, 79 Mo. 113. No reasons were assigned for objections to this testimony at the time, and it was not error for the court to refuse to exclude the testimony after it was all in. State v. Johnson, 76 Mo. 121. (2) As to the second point, it is permissible to cross-examine a witness who has testified to reputation, as to his means of knowledge, and grounds for his opinion, and he may be cross-examined upon particular instances which test the truth of his statements in the examination in chief. 1 Greenl. Ev., secs. 461, 445-450; State v. Miller, 71 Mo. 89; 3 Russ. on Crimes, 299. No reasons were assigned for objections to this testimony at the time, and the action of the court in admitting the testimony is not reviewable. State v. Johnson, supra. (3) No objections were made to the testimony of the witness, Wm. Bondurant, at the time; and where the attention of the trial court is called to the matter for the first time in the motion for a new trial, the appellate court will not review the action of the trial court upon that question. State v. Reed, 89 Mo. 168; State v. Burk, 89 Mo. 635. (4) The record shows that defendant was present at the time the jury was sworn, and at the time the verdict was received the defendant "wilfully and voluntarily absented himself." No objections were made at the time to the verdict being received by the court, and no suggestions that the absence of the defendant was otherwise than wilful and voluntary, and the court did not err in receiving it. State v. Smith, 90 Mo. 37; R. S. 1889, sec. 4191.

Barclay J. Sherwood, J., dissents.

OPINION

Barclay, J.

-- I. The points made by defendant upon the rulings of the trial court on the evidence are not well taken. Most of these rulings were made over objections to testimony which assigned no ground or reason for excluding it.

Section 1907 of our statutes concerning criminal procedure (R. S. 1879) declares that: "The provisions of law in civil cases, relative to compelling the attendance and testimony of witnesses, their examination, the administration of oaths and affirmations, and proceedings as for contempt, to enforce the remedies and protect the rights of parties, shall extend to criminal cases, so far as they are in their nature applicable thereto, subject to the provisions contained in any statute."

This has been a part of the law of Missouri from a date as early, at least, as 1835. It has been re-enacted repeatedly in the various revisions of the statutes that have taken place since then. Its language to-day is substantially, if not identically, the same that it has been for some fifty years. R. S. 1835 [3 Ed.] p. 490, sec. 15; R. S. 1845, p. 880, ch. 138, sec. 16; R. S. 1855, p. 1191, ch. 127, sec. 18; Gen. Stat. 1865, p. 850, ch. 213, sec. 17; R. S. 1879, sec. 1907; R. S. 1889, sec. 4207.

In civil cases it has been uniformly ruled by this court, from a very early period of its history, that it is not sufficient for the purposes of review to object generally to improper testimony when offered, but that the grounds must be stated to the court with the objection. Fields v. Hunter (1843), 8 Mo. 128; Roussin v. Ins. Co. (1851), 15 Mo. 244; Clark v. Conway (1856), 23 Mo. 438; Weston & Plattsburg Railway Co. v. Cox (1862), 32 Mo. 456; Lohart v. Buchanan (1872), 50 Mo. 201. That rule has thus become a fixed part of our jurisprudence governing the trial of civil causes, and must be regarded as having been in contemplation of the law makers when the revision of the statutes, alluded to, occurred.

Section 1907 (R. S. 1879) should, therefore, be considered as having been re-enacted from time to time with the then prevailing rule relative to the...