State ex rel. Page v. Terte

Decision Date26 February 1930
Docket NumberNo. 29965.,29965.
Citation25 S.W.2d 459
PartiesTHE STATE EX REL. JAMES R. PAGE, Prosecuting Attorney of Jackson County, v. BEN TERTE, Judge of Circuit Court of Jackson County.
CourtMissouri Supreme Court

H.C. Waltner and Rodman L. Henry for respondent.

(1) The provisional rule should be vacated and relator's petition dismissed, for the reasons that respondent's rulings were in conformity with Sec. 1378, R.S. 1919; the court had jurisdiction over the subject-matter and of the parties and was invested by the statute with "the discretion" of compelling the production of the documents, papers or other written evidence then in the possession, charge or control of relator and connected with the causes, and "in the absence of the abuse of this discretion" the order and citation on relator to permit inspection of such deeds, etc., should be enforced. (2) It was discretionary in the trial court to compel relator to produce the alleged papers and documents for the inspection of the defendant under the provisions of Sec. 1378, R.S. 1919. No abuse of this discretion is shown or claimed. Therefore, the Supreme Court will not reverse the ruling of the trial court in a discretionary matter unless it clearly appears that the discretion has been abused. State v. Fitzgerald, 130 Mo. 407; State ex rel. v. Trimble, 254 Mo. 542; State ex rel. v. Broaddus, 245 Mo. 123. (3) The competency or incompetency of the alleged books, papers, records, etc., sought to be examined was not put in issue by relator before the trial court. For aught that appears from the records it was all competent.

FRANK, J.

Original proceeding in prohibition. Relator, as Prosecuting Attorney of Jackson County, seeks to prohibit respondent, Judge of the Circuit Court of said county, from making and enforcing an order in the cases of State of Missouri v. D.L. Piggott et al., Nos. 10961, 10962 and 10963 pending in said circuit court, requiring relator to produce for the inspection of the defendants in said causes, written statements of witnesses and other documents and papers alleged to be in the possession of said relator.

Briefly stated, the pertinent facts appearing in the petition are that on August 15, 1929, three indictments against D.L. Piggott et al. were pending in the Circuit Court of Jackson County, each charging said defendants with murder in the first degree. There was and is endorsed on the back of each of said indictments the names of seventy-seven witnesses. On August 16, 1929, defendant Piggott was duly arraigned in Criminal Division A of said circuit court and entered a plea of not guilty. On defendant's application a change of venue was awarded, and said causes were sent to respondent, Judge of Criminal Division B of said court. On August 20, 1929, defendant Piggott filed a motion in said court in which he prayed for an order requiring relator to produce for his inspection written statements made by the witnesses whose names were indorsed on the informations, as well as other papers and documents in relator's possession. This motion reads:

"Comes now defendant D.L. Piggott by his attorneys in the three above entitled causes and prays the court for an order on the State of Missouri and the Prosecuting Attorney for Jackson County, Missouri, James R. Page, to produce for the inspection of defendant in said causes the written statement or statements of the following named witnesses now in possession or under the control of the said James R. Page, Prosecuting Attorney, together with all deeds, mortgages, bills of sale, books, documents, papers or other written copies of evidence now in his possession, charge or control, connected in anywise with said causes, to-wit: [Here follows names of witnesses.]

"Defendant says that said statements of said witnesses and such deeds, mortgages, bills of sale, books, documents, papers or other written evidence is or may be material to the issues in said cause."

Respondent, as judge of said court, heard this motion on August 26, 1929, and at the conclusion of said hearing, announced that he was bound to follow the opinion of this court in State of Missouri v. Tippett, 317 Mo. 319, 296 S.W. 132, and make an order compelling relator to produce for defendant's inspection the written statements of witnesses and other documents called for in said motion. Thereafter, upon application of relator, our provisional rule in prohibition issued, prohibiting the making of said order. Respondent made return to the provisional rule in which the facts heretofore stated are admitted. Other facts are alleged in the petition for the writ and in respondents' return which we deem immaterial to a determination of the issue presented.

Respondent contends that our decision in State v. Tippett, 317 Mo. 319, 296 S.W. 132, 135, authorizes the making of the proposed order.

At the October Term, 1929, Division One of this court overruled the Tippett case in an opinion written by GANTT, J., in the case of State ex rel. Missouri Pacific Railroad v. Willard P. Hall, Judge of the Circuit Court of Jackson County, et al., 325 Mo. ___, 27 S.W. (2d) 1027. Because the opinion in that case overruled the Tippett case, it was transferred to Court en Banc, where it is still pending. We approve the law as stated in the opinion in that case, and re-state it here as the law — applicable to and decisive of this case. It is as follows:

"Respondents contend the order is authorized by State v. Tippett, 296 S.W. 132, l.c. 135. In that case it was charged that an automobile driven by the defendant collided with one Fitzpatrick, and that defendant left the scene of the occurrence without giving the information required by law. In the course of the opinion we said:

"`Sometime after his arrest, Tucker, contemplated witness for the State, gave the prosecuting attorney a written statement relative to the accident. Defendant filed a motion to inspect the statement, which the court denied. The contemplated use was then disclaimed by the prosecuting attorney, nor was it used in the trial. The motion goes no further than requesting a rule on the prosecuting attorney to examine a written statement given him by Tucker relative to the accident and then in his possession. This was a document, and, provided it tended to impeach Tucker, was admissible on the part of defendant for that purpose. The general rule denying the inspection of documents in the hands of an adverse party has been greatly relaxed in modern cases. In civil cases an inspection of documents in the hands of opposing parties, such as papers, contracts, and corporation records, upon motion have been allowed. The cases seem to hold that it is a matter of indifference whether the documents to be examined may be of actual benefit to the party filing the motion to inspect. If from the motion the document may be material, the right of inspection obtains. In the instant case the request for inspection relates to a statement given by Tucker relative to Fitzpatrick losing his life on State Highway No. 25, north of Bernie. The motion then shows that the statement may be material. We are unable to perceive why the privilege should not obtain in a criminal case, although we have been unable to find an authority in point. However, State ex rel. v. Wood (Mo. Sup.), 292 S.W. 1033, a civil case, has a bearing on the question. The prosecuting attorney is both an officer of the State and of the court, and his duty extends no further than an impartial, fair and just trial of defendant. If Tucker's statement comprised the truth, it would have availed defendant nothing in the inspection of it. If in any manner it tended to show that defendant was not guilty of the offense charged, he was entitled to the benefit of it. That it was desired that the State's evidence remain undisclosed, partakes of the nature of a game, rather than judicial procedure. The State in its might and power ought to be and is too jealous of according a defendant a fair and impartial trial to hinder him in intelligently preparing his defense and in availing himself of all competent material and relevant evidence that tends to throw light on the subject-matter on trial. Inasmuch as we reverse the judgment and remand the cause on another point, it is unnecessary to decide whether the ruling of the trial court on the record constituted prejudicial error. But we do hold that the right to inspect the statement obtained.'

"The only authorities we have found tending to support this pronouncement follow: Sprinkle v. State, 102 So. (Miss.) 844; Chesapeake & O. Ry. Co. v. Swartz, 80 S.E. (Va.) 568, l.c. 571.

"On the other hand, in State v. Fitzgerald, 130 Mo. 407, l.c. 424, 32 S.W. 1113, the trial court overruled a motion, filed before the taking...

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