State v. Biswell

Citation179 S.W.2d 61,352 Mo. 698
Decision Date03 April 1944
Docket Number38551
PartiesState v. Joe Biswell, Appellant
CourtUnited States State Supreme Court of Missouri

Appeal from Howard Circuit Court; Hon. Aubrey R. Hammett Judge.

Affirmed.

Luman Spry and Jack H. Denny for appellant.

(1) One who has formed an opinion from reading the sworn evidence taken before the coroner is incompetent to serve as a juror. State v. Foley, 144 Mo. 600; State v Culler, 82 Mo. 623; State v. Taylor, 134 Mo 109; State v. Shackleford, 148 Mo. 493. (2) The verdict of the jury is against the evidence and there is no substantial evidence to support the verdict. State v. Hagan, 164 Mo. 654; State v. Johnson, 209 Mo. 346; State v. Gordon, 199 Mo. 561. (3) The verdict is excessive showing that the jury were prejudiced. State v. Petty, 76 Ark. 515. (4) The court erred in refusing defendant's Instruction H on manslaughter. State v. Gadwood, 116 S.W.2d 42; State v. Ellis, 74 Mo. 207; State v. Gore, 237 S.W. 993; State v. Brown, 64 Mo. 367; State v. Grugin, 147 Mo. 39; State v. Gordon, 191 Mo. 114; State v. Reeves, 195 S.W. 1027; State v. Rennison, 267 S.W. 850; State v. Conley, 255 Mo. 185. (5) The court erred in failing to instruct the jury on all questions of law arising in the case which were necessary for the information of the jury in giving the verdict and especially in failing to instruct them on manslaughter committed in heat of passion and "imperfect self defense." State v. Gadwood, 116 S.W.2d 42; State v. Burrell, 252 S.W. 709; State v. Dollarhide, 63 S.W.2d 998; State v. Connor, 152 S.W. 713. (6) The court erred in refusing to give defendant's instructions lettered K, L, M, being the converse of the State's Instruction 8, which the court gave. State v. Cantrell, 234 S.W. 800. (7) The court erred in refusing to admit evidence of previous threats made by the deceased, difficulties between the deceased and the defendant, and did not allow any explanation of said difficulties by the witnesses. 30 C.J. 156-57. (8) The court erred in refusing to allow witnesses to testify that it was their opinion that relatives of the accused were insane, the facts upon which said opinions were based having been previously stated by the witnesses. State v. Porter, 213 Mo. 43; 30 C.J. 221. (9) The court erred in excluding defendant's Exhibit 3, being the remnants of a hearing device which the witness testified was destroyed by the defendant's sister, tending to prove that defendant's sister was insane. State v. Porter, 213 Mo. 43; 30 C.J. 221. (10) The court erred in allowing the wife of the defendant to be cross-examined upon matters not testified to by her in her examination in chief, and in permitting her to discuss confidential communications between her and the defendant. R.S. 1939, sec. 4081; State v. McGraw, 74 Mo. 573; State v. Santino, 186 S.W. 976. (11) Prosecuting Attorney was guilty of misconduct in displaying to the jury the bloody shirt of the deceased draped upon a model while making his closing address. State v. Rennison, 267 S.W. 850; State v. Creed, 252 S.W. 678; State v. Sterling, 72 S.W.2d 70; State v. Deitz, 235 Mo. 332; State v. Porter, 276 Mo. 387; State v. Pagels, 92 Mo. 300; State v. Long, 80 S.W. 2d 154.

Roy McKittrick, Attorney General, and W. J. Burke, Assistant Attorney General, for respondent.

(1) The court did not err in allowing the jurors mentioned in defendant's Assignment of Error Number One to become members of a panel even though they had read testimony introduced at the coroner's inquest in newspapers, for the reason that the jurors stated that they could give the defendant a fair and impartial trial. Sec. 4060, R.S. 1939; State v. Stanton, 68 S.W.2d 811; State v. Robinson, 23 S.W. 1066, 117 Mo. 649; State v. Hultz, 16 S.W. 940, 106 Mo. 4; State v. Brown, 71 Mo. 454; State v. Darling, 97 S.W. 592, 199 Mo. 168. (2) There was substantial evidence to support the verdict. State v. Caviness, 33 S.W.2d 940, 326 Mo. 992; State v. Spinks, 125 S.W.2d 60, 344 Mo. 105; State v. Privett, 152 S.W.2d 73, 347 Mo. 1144; State v. Clark, 142 S.W.2d 68; State v. Kennon, 123 S.W.2d 46; State v. Schnelt, 108 S.W.2d 377, 341 Mo. 241. (3) The verdict was not excessive and there is nothing in the record to show prejudice of the jury. Sec. 4378, R.S. 1939; State v. Short, 87 S.W.2d 1031. (4) Defendant's Assignment of Error Number Six in his motion for new trial, which merely states that the verdict is against the law, as declared in the instructions, is insufficient for review. Section 4125, R.S. Missouri, 1939; State v. Keller, 104 S.W.2d 247, pars. 1-3; State v. Conway, 154 S.W.2d 128; State v. Bivens, 151 S.W.2d 1114; State v. Kennon, 123 S.W.2d 46. (5) The court did not err in refusing defendant's Instruction B, which was an instruction calling for a directed verdict of not guilty. (6) The court did not err in refusing to give a manslaughter instruction. State v. Nichols, 130 S.W.2d 485; State v. Hershon, 45 S.W.2d 60, 329 Mo. 469; State v. Stanton, 68 S.W.2d 811; State v. Nienaber, 153 S.W.2d 360; State v. Busch, 119 S.W.2d 265, 342 Mo. 959. (7) The court did not err in refusing defendant's Instruction K, which is a definition of insanity, because the same definition was given in State's Instruction 8. State v. Peterson, 154 S.W.2d 134; State v. Evans, 133 S.W.2d 389, 345 Mo. 398; State v. Pierson, 123 S.W.2d 149, 343 Mo. 841; State v. Wilkins, 100 S.W.2d 889; State v. Cohen, 100 S.W.2d 544. (8) The court did not err in refusing to give defendant's Instruction L, for the reason the same matter was covered in State's Given Instruction 8. See authorities as set out in Point (7). (9) The court did not err in refusing to give defendant's Instruction M for the reason that the same matter was covered by State's Given Instruction 8 for the form of verdict. See authorities as set out under Point (7). (10) The court did not err in refusing to give defendant's Instruction T, for the reason that the same matter is covered by State's Instructions in the forms of verdicts, set out under Instruction 17, and State's Instruction 8. See authorities as set out under Point (7). (11) Instruction Number Two, which is commonly called the "Reasonable Doubt Instruction" states the law, even though the words "throughout the trial" do not appear therein. State v. Stogsdill, 23 S.W.2d 22, 324 Mo. 105. (12) Instruction F, which is defendant's given instruction is proper, even if the same terms appear in Instruction 3, which is the State's instruction. State v. Kaplan, 16 S.W.2d 35; State v. Adams, 98 S.W.2d 632, 339 Mo. 926, 108 A.L.R. 838; State v. Craft, 92 S.W.2d 626, 338 Mo. 831; State v. Bennett, 87 S.W.2d 159. (13) The court did not commit error in giving the latter part of Instruction E, which is an instruction requested by the defendant as to self-defense. State v. Fultz, 142 S.W.2d 39; State v. Raines, 98 S.W.2d 580, 339 Mo. 884; State v. Adams, 98 S.W.2d 692, 339 Mo. 926. (14) Appellant's Assignment of Error Number Nineteen is insufficient for review. Sec. 4125, R.S. 1939; State v. Keller, 104 S.W.2d 247; State v. Conway, 154 S.W.2d 128; State v. Biven, 151 S.W.2d 1114; State v. Kennon, 123 S.W.2d 46. (15) The court did not err in giving that part of Instruction Number Eight, as set out in defendant's Assignment of Error Number Twenty. Sec. 4125, R.S. 1939. (16) Defendant was not harmed by the giving of Instruction 12, which is an instruction on murder in the first degree, because the defendant was not convicted of murder in the first degree. State v. Kaplan, 16 S.W.2d 35. (17) Defendant's Assignment of Error Number Twenty-Two which complains that the verdict was not written upon a separate piece of paper is insufficient for review. Sec. 4125, R.S. 1939; State v. Short, 87 S.W.2d 1031; State v. Layton, 58 S.W.2d 454, 332 Mo. 216. (18) The court instructed on excusable homicide, when it gave Instruction 7E, which is both a State and defendant's requested instruction. Secs. 4125, 4380, R.S. 1939; State v. Nichols, 130 S.W.2d 485; State v. Nienaber, 153 S.W.2d 360. (19) The testimony of the witnesses mentioned in defendant's Assignments of Error Number Twenty-four, Twenty-five and Twenty-six, was admitted in detail and all three assignments are insufficient for review. State v. Gregory, 127 S.W.2d 408, 344 Mo. 525; State v. Huddleston, 123 S.W.2d 183; State v. Jackson, 142 S.W.2d 45, 346 Mo. 474; State v. Vigus, 66 S.W.2d 854; State v. Bagby, 93 S.W.2d 241, 338 Mo. 951; State v. Thompson, 92 S.W.2d 892, 338 Mo. 897. (20) The court did not err in allowing Dr. George W. Robinson to testify as to the sanity of the defendant, even if it could be said he was not a qualified expert. State v. Jackson, 142 S.W.2d 45. (21) Defendant's Assignment of Error Number Twenty-eight is insufficient for review. Sec. 4125, R.S. 1939; State v. Majors, 44 S.W.2d 163, 329 Mo. 148. (22) The counsel for the State was not guilty of misconduct. Paragraph "a" of defendant's Assignment of Error Number Twenty-nine is insufficient and does not comply with Section 4125, R.S. 1939, in that it does not give any reason for any error being committed by the jury in the trial court. State v. Short, 87 S.W.2d 1031. (23) The prosecuting attorney was not guilty of misconduct when he only consumed two-fifths of his time in his opening argument and three-fifths of his time in his closing argument. State v. Kowertz, 25 S.W.2d 113, 324 Mo. 748. (24) Defendant's Assignment of Error, part "c" is insufficient for review. State v. Short, 87 S.W.2d 1031; State v. Hamilton, 102 S.W.2d 642, 340 Mo. 768. (25) Paragraph "d" of this assignment is insufficient for the reason that it does not set out how the defendant was injured or the jury prejudiced by him. Sec. 4125, R.S. 1939.

OPINION

Leedy, J.

Defendant, Joe Biswell, was charged with murder in the first degree in having shot...

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