296 S.W. 132 (Mo. 1927), 27821, The State v. Tippett

Docket Nº:27821
Citation:296 S.W. 132, 317 Mo. 319
Opinion Judge:DAVIS
Party Name:The State v. Sherman Tippett, Appellant
Attorney:Alexander & Coffer, Munger & Munger and Smith & Zimmerman for appellant. North T. Gentry, Attorney-General, and A. B. Lowan, Assistant Attorney-General, for respondent.
Judge Panel:Davis, C. Higbee and Henwood, CC., concur.
Case Date:June 03, 1927
Court:Supreme Court of Missouri

Page 132

296 S.W. 132 (Mo. 1927)

317 Mo. 319

The State


Sherman Tippett, Appellant

No. 27821

Supreme Court of Missouri

June 3, 1927

Appeal from Dunklin Circuit Court; Hon. E. P. Dorris, Special Judge.

Reversed and remanded.

Alexander & Coffer, Munger & Munger and Smith & Zimmerman for appellant.

(1) The defendant's demurrer was well taken. (a) The first count of the information failed to state facts sufficient to constitute an offense. Subdiv. (f), Sec. 27, Laws 1921 (Ex. Sess.) p. 103; State v. Barnes, 280 Mo. 514, 220 S.W. 848; State v. Asher, 216 S.W. 1013. (b) The law on which it is bottomed is unconstitutional. Secs. 28, 55, Art. 4, Mo. Constitution; Wells v. Railroad, 110 Mo. 286; Stocks v. Edwards, 244 S.W. 806. (c) The evidence failed to prove beyond a reasonable doubt that defendant did not report the accident to some police officer or judicial officer. Sec. 241, Kelly's Cr. Law & Prac. (3 Ed.). (d) The second amended information was a departure from the original information and the first amended information, neither of which charged an offense of leaving the scene of accident. Sec. 3908a, Laws 1925, p. 195. (e) The alleged second amended information was filed in Dunklin County when the alleged offense was committed in Stoddard County. State v. Bartlett, 170 Mo. 658; State v. Moore, 272 S.W. 710, 59 L. R. A. 756. (2) The verdict of the jury is not in legal form. (a) It is not in response to the charge in the second amended information. State v. Randolph, 186 S.W. 592; State v. Langford, 293 Mo. 436. (b) It refers back to "some pleading" to determine its finding. State v. Randolph, supra; Kelly's Cr. L. & Prac. (3 Ed.) sec. 406, note 443. (c) It will not legally support the judgment of the court. State v. Bishop, 231 Mo. 441. (3) The motion to quash the second amended information should have been sustained. The purported law on which it was based is unconstitutional and void. Authorities under point one. The courts judicially notice contents of messages of the executive. Wells v. Railroad, 110 Mo. 286. (4) The admission of statements of Tucker, made to witnesses, Crane, Barham, Pretzsch and others, out of the presence and hearing of the defendant was reversible error. 1 Wharton Cr. Ev. (10 Ed.) 448, secs. 222, 225; Wharton Evid., sec 172, et seq.; State v. Loeb, 190 S.W. 299; State v. Blackburn, 273 Mo. 469; State v. Woodward, 191 Mo. 617. (5) The court should have compelled the prosecuting attorney to permit counsel for defendant to be advised as to the statement of witness Tucker. Kelly's Cr. Law & Prac. (3 Ed.) sec. 373, note 111; Underhills Cr. Ev. (3 Ed.) sec. 396. (6) The court erred in not excusing juror Sanford. Sec. 4014, R. S. 1919. (7) Admission of evidence as to what defendant did and said after the accident was prejudicial error. Not res gestae. Defendant was charged only with a statutory crime. Motive, intent, etc., are not elements. Underhill's Cr. Ev. (3 Ed.) secs. 150, 153, note 75; State v. Mohr, 289 S.W. 554; State v. Preslar, 290 S.W. 142.

North T. Gentry, Attorney-General, and A. B. Lowan, Assistant Attorney-General, for respondent.

(1) The information is in the language of the statute and is sufficient. Laws 1921 (Ex. Sess.) sec. 27, (f) p. 103; State v. Hudson, 285 S.W. 735. (2) It is the law now that an information may be amended after a change of venue has been taken in the case. Sec. 3853, R. S. 1919; Sec. 3908A, Laws 1925, p. 195; State v. Dickson, 253 S.W. 746; State v. Rennison, 267 S.W. 850. (3) The court was right in overruling the demurrer to the evidence. There is no conflict in the testimony to the effect that the defendant drove his car against Fitzpatrick and, knowing that he had done so, left the scene of the accident without stopping and giving his name and without reporting to an officer. There being substantial evidence in support of the charge against the defendant, this court will not disturb the verdict of the jury. State v. Concelia, 250 Mo. 424; State v. Field, 262 Mo. 164; State v. Renfro, 279 S.W. 704; State v. Maurer, 255 Mo. 168. (4) In the motion for a new trial the appellant complains that the court permitted certain witnesses to testify that the witness Tucker had told them that the defendant was driving the car that ran against Fitzpatrick and killed him. The court admitted this testimony on the theory that the defendant had shown on cross-examination of some witnesses that Tucker had denied that the defendant was driving the car and because of that testimony the State had the right to show that the witness Tucker had told others that the defendant did drive the car. Whether that theory is right or not, such testimony could not possibly be prejudicial to the defendant because the witness Tucker testified in the case and said that the defendant was driving the car that ran against Fitzpatrick. It is only for prejudicial errors that this court will reverse a case. (5) The defendant was connected with the incident by the testimony that Hardesty and the defendant took the witness Tucker to Memphis and put him on the train there, bound for a distant point, and that the defendant told him to stay out of the State. In view of the last-mentioned testimony, the showing of what Hardesty did, could not have been prejudicial to the defendant. State v. Sherman, 175 S.W. 74; State v. Anglin, 222 S.W. 77. (6) An order refusing to permit defendant and his counsel to examine the written and signed statement of witness Tucker, made at the time of the preliminary hearing of said Tucker on the same charge upon which defendant was tried, was not error. The signed statement was not put in evidence and the prosecuting attorney stated at the time the motion was made that he did not intend to use it. (7) The authorities cited by the appellant thoroughly sustain...

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