The State v. Beckner

Decision Date06 March 1906
Citation91 S.W. 892,194 Mo. 281
PartiesTHE STATE v. BECKNER, Appellant
CourtMissouri Supreme Court

Appeal from Jackson Criminal Court. -- Hon. Jno. W. Wofford, Judge.

Reversed and remanded.

Boyle Guthrie & Smith for appellant; J. S. Brooks of counsel.

(1) The trend of authority is to the effect that a witness may be impeached by showing his general reputation for truth and veracity, and his general moral character for the purpose of affecting his credibility as a witness; but it has always been held in all the courts that a man's bad character for turbulence and violence could not be put in issue by the State unless the defendant had first introduced witnesses to show his character was good. 2 Wigmore on Ev., secs. 891 922, 924; Bakeman v. Rose, 18 Wend. 146; State v. Sibley, 131 Mo. 519; State v. Pollard, 174 Mo. 607; State v. Nelson, 101 Mo. 468; State v Smith, 125 Mo. 7; State v. Weeden, 133 Mo. 82; State v. Hudspeth, 159 Mo. 207. The ruling was especially injurious and prejudicial in this case for the reason that five witnesses were permitted to testify as to the character of defendant as a peaceable and quiet man, or a turbulent and violent one, and thereafter was further extended so as to permit the State to examine the character witnesses which defendant introduced, to specific acts of the defendant, all of which would have been incompetent if the court had ruled properly in the first instance. (2) "The prosecuting attorney has a right to test the knowledge of the witness as to the general reputation of defendant by inquiring of him if he had not heard of conduct which tended to show he was not the peaceable law-abiding man his evidence had tended to prove him to be. We think, however, it was objectionable to descend into the particulars of the number of shots fired in the Transit House difficulty." State v. Parker, 172 Mo. 207. (3) It was error to permit the State to show the health and physical condition of deceased before and at the time of the killing. It was in no way an issue in the case, and evidence to that effect was incompetent. (4) Defendant offered to show threatening language of the deceased used in reference to defendant a short while before the killing. Uncommunicated threats made by the deceased are admissible as tending to show who is the aggressor in an affray. State v. Spencer, 160 Mo. 123; State v. Bailey, 94 Mo. 316; State v. Sloan, 47 Mo. 610; State v. Harrod, 102 Mo. 609; State v. Elkins, 63 Mo. 165; State v. Nelson, 166 Mo. 191; State v. Valle, 164 Mo. 539. It may be urged that the language upon which defendant relies as a threat could not be so construed. That should be a question for the jury, and the evidence is especially valuable in view of the facts of this case, as it clearly demonstrates Brown's attitude toward the defendant at the moment the quarrel started. (5) Instruction 13 given on behalf of the State on self-defense does not properly state the law of self-defense. (a) There is no legal evidence that defendant brought on the difficulty or entered into it for the purpose of taking advantage of the deceased, and he was entitled to an instruction on self-defense clear and simple without any reference to bringing on or entering into the difficulty with or without the intention of taking advantage of and killing or injuring the deceased. (b) The second part of this instruction contained in the last clause which requires the defendant to establish his defense is plainly erroneous. State v. Wingo, 66 Mo. 181; State v. Hill, 69 Mo. 451.

Herbert S. Hadley, Attorney-General, Frank Blake, Assistant Attorney-General, and I. B. Kimbrell for the State.

(1) The testimony respecting the general reputation of defendant for being a violent, turbulent and dangerous person was admissible to impeach him as a witness. That any witness in a case may be impeached not only by showing that his general reputation for truth and veracity is bad, but also by showing that his general reputation for morality and for possessing the various attributes of an immoral character is bad, has been the settled law of this State since the case of State v. Shields, 13 Mo. 236, decided in 1850. State v. Shields, 13 Mo. 236; State v. Hamilton, 55 Mo. 520; State v. Breeden, 58 Mo. 507; State v. Clinton, 67 Mo. 380; State v. Miller, 71 Mo. 590; State v. Grant, 79 Mo. 133; State v. Rider, 95 Mo. 486; State v. Parker, 96 Mo. 391; State v. Shroyer, 104 Mo. 447; State v. Day, 100 Mo. 242; State v. Raven, 115 Mo. 423; State v. McLain, 92 Mo.App. 464; State v. Martin, 124 Mo. 514; Sitton v. Grand Lodge, 84 Mo.App. 208; State v. Weeden, 133 Mo. 82; State v. Pollard, 174 Mo. 608; State v. May, 142 Mo. 150; State v. Sibley, 132 Mo. 102. (2) But conceding that this testimony was improper before defendant opened that question, yet defendant waived and cured the error by thereafter opening up that question and introducing evidence that his reputation in this regard was good. A party can not complain that the court permitted witnesses to testify to certain facts over his objection, if subsequently he goes into the same matter brought out over his objection. State v. Goddard, 162 Mo. 226; State v. Moore, 156 Mo. 212. (3) No error was committed in permitting the State to cross-examine defendant's character witnesses, for in testing a witness who speaks to good character, it will expose the unworthiness of his testimony if he admits that rumors of misconduct are known to him; for the knowledge of such rumors may well be inconsistent with his assertion that the person's reputation is good. 2 Wigmore on Evidence, sec. 988; 1 Greenleaf Ev. (16 Ed.), sec. 461; State v. Parker, 172 Mo. 207; State v. Crow, 107 Mo. 341; State v. Boyd, 178 Mo. 2; State v. Brown, 181 Mo. 192. (4) Objection is made because the State was permitted to show the health, physical condition and weight of the deceased at the time of the killing. This evidence was clearly admissible because defendant had introduced evidence to show that the deceased was a large man, weighing over two hundred pounds, over six feet tall and engaged in hard labor. The issue was raised by the defendant and the State had a right to rebut it. (5) The exclusion of the vague threat made six weeks before the killing did not prejudice defendant. State v. Spencer, 160 Mo. 118; State v. Smith, 164 Mo. 567; State v. Downs, 91 Mo. 19; State v. Elkins, 63 Mo. 159; State v. Evans, 65 Mo. 574. (6) Instruction 13, given on behalf of the State, is criticised by counsel for defendant for the reason that defendant was required to establish the facts constituting his defense. The instruction does not shift the burden in the case. It should be read in connection with instruction 11, which tells the jury that the burden of the proof in the case rests upon the State. Instructions similar to the one complained of have been approved in the following cases: State v. Shoultz, 25 Mo. 153; State v. Thomas, 78 Mo. 340; State v. Hicks, 92 Mo. 435; State v. Talmage, 107 Mo. 558; State v. Harper, 149 Mo. 525.

GANTT, J. Burgess, P. J., and Fox, J., concur.

OPINION

GANTT, J.

This is a prosecution for murder begun by the filing of an information in the criminal court of Jackson county, by the prosecuting attorney of said county, wherein he charges the defendant with having, on the first day of January, 1905, at the county of Jackson in the State of Missouri, wilfully, feloniously, deliberately, premeditatedly, on purpose and of his malice aforethought, shot and killed Charles Brown.

The defendant was duly arraigned and entered his plea of not guilty. On the 8th day of May, 1905, defendant was put upon his trial, and on May 12, 1905, the jury returned a verdict finding him guilty of murder in the second degree, and assessing his punishment at imprisonment in the State penitentiary for a term of fifty years.

Motions for new trial and in arrest of judgment were filed in due time, heard and overruled, and thereupon the defendant was sentenced in accordance with the verdict of the jury, and now prosecutes his appeal from the said judgment and sentence.

The homicide occurred on the first day of January, 1905, at the house of Morgan Smitson, in the city of Independence in Jackson county, Missouri. The killing of Brown by the defendant was admitted; the defense interposed was self-defense. The killing was done with a 32 calibre revolver, and occurred about one o'clock in the morning at a dance which was then in progress at the residence of Smitson; the defendant Beckner had accompanied a young girl by the name of Minnie Hook, about fifteen years of age, to the dance. The defendant himself was between seventeen and eighteen years old, at the date of the homicide, and weighed about one hundred and twenty-three pounds. The deceased, Charles Brown, was about twenty-four years old, a teamster, and weighed, when well, about two hundred pounds, and was about six feet high. The evidence tends to show that Brown came to the dance somewhat later than most of the young people, and that he did not participate in the dancing, but sat in the room where the dancing was done. The evidence tended to show that the defendant and Brown were slightly acquainted. There was no evidence of any previous quarrel or illwill between the defendant and the deceased, Brown. About one o'clock in the morning, Miss Minnie Hook notified the defendant that she was ready to go home, and she said he went up-stairs to get their wraps preparatory to leaving the house; these stairs opened directly into a middle room down-stairs; in this middle room, at this time, the deceased Brown, together with O. F. Bolan and Clarence Leftwich, were seated together on the edge of a dresser; Miss Minnie Hook came down the stairs with defendant immediately behind...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT