146 S.W. 1160 (Mo. 1912), State v. Philpott

Citation:146 S.W. 1160, 242 Mo. 504
Opinion Judge:KENNISH, J.
Party Name:THE STATE v. WILLIAM PHILPOTT, Appellant
Attorney:Scott J. Miller for appellant. Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
Judge Panel:KENNISH, J. Ferriss, P. J., and Brown, J., concur. Ferriss, P. J., and Brown, J., concur.
Case Date:May 09, 1912
Court:Supreme Court of Missouri
 
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Page 1160

146 S.W. 1160 (Mo. 1912)

242 Mo. 504

THE STATE

v.

WILLIAM PHILPOTT, Appellant

Supreme Court of Missouri, Second Division

May 9, 1912

Appeal from Livingston Circuit Court. -- Hon. A. B. Davis, Judge.

Affirmed.

Scott J. Miller for appellant.

(1) The court committed error in permitting testimony of witnesses used by the State, over the objection of the defendant, to prove the defendant's reputation for morality was bad, because the only issue, if competent at all, would be the question of truth and veracity, and not of morality or general worth. State v. Wertz, 195 Mo. 579. (2) At the close of all the testimony, when all the evidence was in, and the degree of the crime, if any committed, could be ascertained by the court, the defendant insisted that the court should instruct on murder in the first degree, and first degree alone; that the issue should be defined by the court to first degree murder, second degree murder or manslaughter in the fourth degree. The court overruled the suggestions of the defendant, leaving the three degrees of murder before the jury, but did not instruct on manslaughter in the fourth degree, which, under the testimony in this case, is error. (3) When the jury brought in the verdict, it was rewritten by the court, and the verdict found by the jury was in open court and not in the seclusion of the jury room, and was the verdict, as written, of the court and not of the jury. While it might have been the intention of the jury, and probably was, to sentence the defendant to ten years in the penitentiary, yet it was the jury's duty to make the verdict in due form, and not the court's. The court should have sent the jury back to their room with proper instructions. (4) The court should have instructed on manslaughter in the fourth degree. If there ever was a case in this court where manslaughter in the fourth degree was proper, this is one of them. At the close of the case, for some reason, the record does not state the fact as it should, by the insertion of the word "not." The quibbling, at the time, was the request that the court instruct on all the law of the case, and the insistence that the prosecuting attorney, not having elected to stand on murder in the first degree, the court should instruct on manslaughter in the fourth degree and murder in the second degree; and these matters are made points of error in the motion for a new trial, and were specifically called to the court's attention in said motion. State v. Maupin, 196 Mo. 177.

Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.

Where appellant testified in his own behalf, the State can impeach his credibility as a witness by showing his reputation for morality is bad, and it makes no difference whether or not appellant offers testimony sustaining his character. In such case he occupies the same position, as to being impeached and discredited, as any other witness. State v. Priest, 215 Mo. 1.

KENNISH, J. Ferriss, P. J., and Brown, J., concur.

OPINION

[242 Mo. 507] KENNISH, J.

This is an appeal from the circuit court of Livingston county. Appellant, William Philpott, at the January term, 1910, of said circuit court, was convicted of murder in the second degree for having killed John Shellhorn by stabbing him in the neck with a butcher knife. The jury assessed his punishment at imprisonment in the penitentiary for a term of ten years, and from the sentence pronounced and judgment entered he appealed to this court.

The State introduced evidence tending to show the following facts:

The defendant, a man sixty-four years of...

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