The State v. Jones
| Decision Date | 28 March 1913 |
| Parties | THE STATE v. JOHN L. JONES, Appellant |
| Court | Missouri Supreme Court |
Appeal from Pettis Circuit Court. -- Hon. H. B. Shain, Judge.
Reversed and remanded.
Claude Wilkerson and W. G. Lynch for appellant.
(1) The court erred in admitting evidence of the Vinson trouble. Defendant had no connection with it, and was not present when it occurred. Deceased had no connection with it and was not present when it occurred. It bore no relation to the crime and was not relevant to the issues involved. The admission of such evidence tended to confuse the issues, distract the mind of the jury and inject in their minds a prejudice against the accused that deprived him of a fair and impartial trial. State v. Jackson, 95 Mo. 649; State v Faulkner, 175 Mo. 579; Bank v. Murdock, 62 Mo 70; State v. Martin, 74 Mo. 547; State v. Clayton, 100 Mo. 520; State v. Tabor, 95 Mo. 590; State v. Parker, 96 Mo. 388; State v. Thomas, 99 Mo. 257; State v. Nelson, 166 Mo. 191, State v. Keuhner, 93 Mo. 196; State v. Swain, 68 Mo. 605; State v. Harris, 73 Mo. 288; State v. Elkins, 63 Mo. 159; State v. Turner, 76 Mo. 350. The State should not have been permitted to show that it became necessary for Vinson to call the sheriff to protect him or that it was necessary for the sheriff to go to his rescue. The defendant should not be held responsible for the acts and words of others, or have his own rights prejudiced or imperiled because others did wrong. State v. Faulkner, 175 Mo. 579. (2) The State should not have been permitted to show the strike conditions; that violence was being committed and that pickets were employed by the strikers; that the railroad employed guards to protect men working from the violence of the strikers; and that a sort of miniature warfare was being conducted. Such evidence was obviously irrelevant and prejudicial to the rights of the accused. Cases supra. (3) The State should not have been permitted to show who hauled Vinson the day before the tragedy. Cases supra; State v. Tabor, 95 Mo. 591. (4) It will be noted upon an examination of the bill of exceptions that not once did the court rebuke or reprimand the attorneys for the State on account of objectionable remarks made by them; that the jury was never excluded from the court room while they were being made; and that the remarks objected to were not legal arguments addressed to a point of law, but were either personal abuse of witnesses on the stand, unjust comments on their character or testimony or with reference to matters which were not being investigated, but would greatly prejudice the accused. The remarks evidenced a premeditated and well-contrived campaign of abuse and slander, having for its aim and object the prejudicing of the jury, against defendant. They were harmful and prejudicial, and their effect was in no way cured or removed. State v. Spevy, 191 Mo. 112; State v. Woodward, 191 Mo. 635; State v. Todd, 194 Mo. 377; State v. Mills, 199 Mo. 530; State v. Ferguson, 152 Mo. 92; State v. Hubbard, 149 Mo. 478; State v. Summar, 143 Mo. 220; State v. Punshon, 13 Mo. 44; State v. Johnson, 76 Mo. 121; State v. Griffin, 87 Mo. 608; State v. Kring, 64 Mo. 591; State v. Clapper, 203 Mo. 549; State v. Shipley, 174 Mo. 512; State v. Boyd, 178 Mo. 2; State v. Pageto, 92 Mo. 300; State v. Woolard, 111 Mo. 248; State v. Lee, 66 Mo. 165; State v. Mably, 68 Mo. 315; State v. Reed, 71 Mo. 200; State v. Ulrich, 110 Mo. 350; State v. Young, 99 Mo. 666; State v. Fisher, 124 Mo. 460; State v. Babbot, 131 Mo. 328; State v. Jackson, 95 Mo. 623; State v. Prendible, 165 Mo. 329; State v. Wright, 141 Mo. 333; State v. Jackson, 95 Mo. 623; State v. Gillespie, 104 Mo. 400. (5) The court erred in admitting testimony of the strikers employing pickets and the railroad company employing guards. State v. Thomas, 78 Mo. 343; State v. Nelson, 166 Mo. 203; State v. Faulkner, 175 Mo. 546; State v. Swain, 68 Mo. 605; State v. Spivey, 191 Mo. 112.
Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State; Perry S. Rader of counsel.
(1) The testimony concerning the assault on Vinson by the strikers on the day preceding the homicide, that there was a carmen's strike, and that defendant was a member of the carmen's union, was admissible. The said testimony was a circumstance connected with the crime, and defendant's own testimony connected him with it. Some part of his connection with it was shown by the testimony of Jack Savage, C. O. Schmidt James Vinson and others. Besides there was a strike, Vinson was a fellow-laborer but not a striker, defendant was both a striker and a picket at the Katy station. He testified himself in chief that he was a member of the carmen's union and a striker. State v. Bailey, 190 Mo. 258; State v. Meyers, 198 Mo. 260; State v. Testerman, 68 Mo. 408; State v. Spaugh, 200 Mo. 599; State v. Rudolph, 187 Mo. 83; State v. Earnest, 70 Mo. 520; State v. Tabor, 95 Mo. 585; State v. Forsythe, 89 Mo. 667; State v. Saunders, 106 Mo. 188; State v. Hoffman, 78 Mo. 256. It was also competent as showing motive. State v. Roberts, 201 Mo. 726; State v. Williamson, 106 Mo. 162; State v. Duestrow, 137 Mo. 86, secs. 5 and 6; State v. Hathhorn, 166 Mo. 229; State v. Evans, 159 Mo. 589. (2) In his argument to the jury, Mr. McGruder, special counsel for the State, said: "I hope this seventeenth day of January is not the day when the juries begin to compromise with horse thieves and murderers." The court held that the reference to this defendant as a horse thief was permissible only as affecting his credibility as a witness, but that it was allowable for that purpose. There was no error in either the attorney's remark or the court's ruling. The defendant had himself testified in chief that he had stolen a horse and had served a sentence in the penitentiary on a plea of guilty; and the evidence certainly authorized the State to speak of him as a murder. State v. Barrington, 198 Mo. 91; State v. Phillips, 160 Mo. 505; State v. Summar, 143 Mo. 220; State v. Allen, 174 Mo. 689; State v. Boyd, 178 Mo. 2. (3) The record abounds in useless objections and remarks by the State's special counsel, but of most of them nothing worse can be said than that they were useless and tended to impede the progress of the trial, and perhaps to fret and vex both the defendant's counsel and the court. It will be observed that no exception was saved to the ruling of the court upon the remarks of Mr. Steele. Mr. Lynch interposed a very strenuous objection to those remarks, or "speech" the court calls them, but when the court, after Mr. Lynch interposed his vigorous protest, said, "Now, gentlemen, you have both made your speeches, and the court is going to rule again; I think you are treading on dangerous ground in making these speeches; I have tried as best I could to keep them out," there was no exception saved by appellant. Nor was any further objection made. Nor was any request made that the court reprimand Mr. Steele, or caution the jury. The court ruled that the testimony was competent, and apparently defendant was satisfied with the court's action. He himself injected the horse-stealing incident into the case in his examination in chief. We also frankly admit there were clauses in Mr. Steele's statement that were improper, such as the statement that defendant, in explaining the taking of the horse as a trespass (that "he took the horse and failed to return it"), was coming into court "with this lie in his mouth," and also the statement that "the gentleman is talking about going to the Supreme Court." But Mr. Steele's remarks were not reversible error, for several reasons: (a) There was no exception saved to the court's failure to more vigorously sustain defendant's objection to them. State v. Zorn, 202 Mo. 12; State v. Coleman, 186 Mo. 159; State v. Lamb, 141 Mo. 305; State v. Hilsabeck, 132 Mo. 359; State v. Thurman, 121 Mo.App. 377. (b) It was not improper for the State's counsel to allude to the defendant as a horse thief. Defendant, in his direct testimony, proceeded at once to say he had taken Mr. Brown's horse and had pleaded guilty to stealing it, and prior thereto his counsel, in his opening statement, had said defendant had been sentenced to three years' imprisonment for stealing Brown's horse. It was not prejudicial for the State's counsel to so characterize him. State v. King, 214 Mo. 391; State v. Allen, 174 Mo. 689. (c) A judgment should not be reversed for every transgression by counsel of the legitimate bounds of argument or for improper remarks during the progress of the trial; to warrant a reversal on that ground, the court must be satisfied that the improper remarks were prejudicial to defendant, and had some influence with the jury in arriving at their verdict. State v. Sublett, 191 Mo. 174; State v. Emery, 76 Mo. 348. (4) Exceptions to the remarks of counsel must be made at the time the remarks were made. State v. Volle, 196 Mo. 29; State v. Chenault, 212 Mo. 137; State v. McCarver, 194 Mo. 740; State v. Armstrong, 167 Mo. 257; State v. Scullin, 185 Mo. 709; State v. Grace, 230 Mo. 702; State v. Thavanot, 225 Mo. 546; State v. Foley, 220 Mo. 89; State v. Murphy, 201 Mo. 696. (5) No remarks were made by the State's counsel, either in the progress of the trial or in their argument to the jury, that would justify the Supreme Court in ordering a new trial, and for several reasons: (a) Where the remarks were improper and defendant raised a proper objection, the court in most cases sustained that objection. (b) Where the remarks were improper, if indeed there were any such, and defendant's counsel made a proper objection which the court refused to sustain, no exception was saved to the court's ruling, and therefore those remarks cannot be...
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