The State v. Tippett

• Citation: 296 S.W. 132,317 Mo. 319
• Decision Date: 03 June 1927
• Docket Number: 27821
• Parties: The State v. Sherman Tippett, Appellant
• Court: United States State Supreme Court of Missouri

296 S.W. 132

317 Mo. 319

The State v. 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 the verdict. State v. Bishop, 231 Mo. 415.

Davis, C. Higbee and Henwood, CC., concur.

OPINION

DAVIS

In a verified information filed in the Circuit Court of Stoddard County, defendant was charged with leaving the scene of the accident without stopping and giving his name and residence and without reporting to a police station or judicial officer, after running his automobile against and killing one Fitzpatrick. Upon application of defendant, the venue was changed from Stoddard to Dunklin County, where a trial was had before the court and jury, resulting in a verdict of four years in the penitentiary, defendant appealing from the judgment and sentence entered thereon.

Defendant refused to introduce evidence, standing and relying on the lack of strength in the State's case. The State's testimony develops and warrants the following facts. On February 11, 1925, defendant, driving a Ford coupe, with one Curtis Tucker beside him, while traveling at a fast speed along Highway No. 25 in Stoddard County, about two miles north of Bernie, on the road from Bernie to Dexter, nine miles apart, ran into and killed one Fitzpatrick. When fifty or sixty feet away, Fitzpatrick suddenly moved from behind a truck, parked on the roadside, into the roadway, directly in the path of the on-coming car. Defendant tried to his utmost to avert striking the man, but, being unable to do so, sped on after the striking, failing to report the accident as required by the statute. The evidence tended to show that the accident was unavoidable. No one seems to have witnessed the occurrence except defendant and Tucker, the latter testifying on behalf of the State. Such other facts as are pertinent will be reviewed in the discussion of the issues involved.

I. Defendant takes the position that the testimony of an impeached, contradicted or discredited witness may not be rehabilitated by otherwise showing statements of the witness confirming his trial testimony. This calls for a compendium of the apposite evidence.

Both defendant and Tucker were arrested ten or eleven days after the accident. According to the sheriff, on the occasion of the arrest, Tucker, being quizzed by the prosecuting attorney, denied any knowledge of the accident. The sheriff then stated that the prosecuting attorney said to Tucker that he would make it lighter on him if he told the truth about it. Tucker on the trial testified that defendant was operating the Ford coupe at the time of the accident. To rehabilitate his testimony, on the ground that it was sustaining evidence, the trial court permitted C. A. Crane, a justice of the peace and police judge of Dexter, to testify that Tucker stated that he was with defendant who was driving the car that ran into and killed Fitzpatrick. The State made no attempt to show when Tucker's statement was made to Crane. Again, witness Pretzsch was permitted to relate that Tucker told her that defendant was driving the car that struck Fitzpatrick. The question was asked, "How long was that after Fitzpatrick had been run over that he told you?" and the witness replied, "On Friday night before you caught us on Sunday."

We have lately considered this question in State v. Creed, 299 Mo. 307, 252 S.W. 678. We there held that it is a general rule of law that the testimony of a contradicted, impeached or discredited witness cannot be confirmed by proving that he made similar declarations out of court. However, we recognized an exception to the general rule, to the effect that the testimony of an accomplice in crime may be corroborated by showing that when first arrested he gave the same relation of facts which he had given on oath during the trial. Our statement of the exception, in the Creed case, was too limited, for the exception is not confined to the statement made when first arrested, but it should be extended to hold that when an attempt has been made to prove or show that a witness is testifying under improper motives or influences, then the party, whose witness he is, may...