Holden v. Berberich

• Decision Date: 27 August 1943
• Docket Number: No. 38273.,38273.
• Citation: 174 S.W.2d 791
• Parties: RUTH HOLDEN, Administratrix of the Estate of MATTHEW DAVID HOLDEN, Deceased, v. WILLIAM BERBERICH, SR., WILLIAM BERBERICH, JR., MABEL BERBERICH, M.A. McEVERS, as Trustee for WILBERT BERBERICH, a Minor, Individuals, Doing Business as BERBERICH'S DELIVERY COMPANY, and SEBASTIAN KRAUS, Appellants.
• Court: Missouri Supreme Court

174 S.W.2d 791

RUTH HOLDEN, Administratrix of the Estate of MATTHEW DAVID HOLDEN, Deceased, v. WILLIAM BERBERICH, SR., WILLIAM BERBERICH, JR., MABEL BERBERICH, M.A. McEVERS, as Trustee for WILBERT BERBERICH, a Minor, Individuals, Doing Business as BERBERICH'S DELIVERY COMPANY, and SEBASTIAN KRAUS, Appellants.

No. 38273.

Supreme Court of Missouri.

Division Two, August 27, 1943.

Rehearing Denied, October 4, 1943.

Motion to Transfer to Banc Overruled, November 1, 1943.

Appeal from Circuit Court of the City of St. Louis. — Hon. James E. McLaughlin, Judge.

AFFIRMED AND REMANDED.

Jones, Hocker, Gladney & Grand and Lon Hocker, Jr., for appellants.

(1) When proof of an indictment is relevant only to show the witness' guilt, and the presumption flowing therefrom: a moral disinclination to tell the truth; then the proof is inadmissible because as to that issue it is merely hearsay and a conclusion. Wigmore on Evidence (2 Ed.), sec. 982, p. 366. (2) But where proof of an indictment discloses a motive for telling the particular story related by the witness it is relevant to a material issue: the bias and interest of the witness. State v. Rose, 339 Mo. 317; State v. Snow, 252 S.W. 629; McAdams v. State, 22 Ala. App. 622, 106 So. 622; People v. Bennett, 249 Pac. 20; Campbell v. State, 169 Ark. 286, 273 S.W. 1035; People v. Moy He, 173 App. Div. 396, 159 N.Y.S. 303; Day v. Lusk, 219 S.W. 597. (3) Similarly, proof of a witness' pending damage suit arising out of the same accident is admissible as illuminating the witness' interest. State v. Decker, 161 Mo. App. 396, 143 S.W. 544; Riner v. Riek, 57 S.W. (2d) 724. (4) The admissibility of evidence is not affected by its prejudicial character, which is relevant only to the question of whether a particular error has caused any real harm. Warner v. Oriel Glass Co., 319 Mo. 1196.

Alexander & Robertson for respondent.

(1) The court erred in permitting defendants' counsel to ask Stanley Best, on cross-examination, if Best had not been indicted over the death of plaintiff's deceased and over the objection and exception of plaintiff and erred in permitting Best to testify that he had been so indicted, over plaintiff's objection. Marrah v. J. & R. Motor Supply Co., 165 S.W. (2d) 271; State v. Menz, 106 S.W. (2d) 440; Hoffman v. Graber, 153 S.W. (2d) 817; State v. Pine, 332 Mo. 314, 57 S.W. (2d) 1087; State v. Wigger, 196 Mo. 90, 98, 93 S.W. 390; State v. Hillebrand, 285 Mo. 290, 225 S.W. 1006; State v. Snow, 252 S.W. 629; State v. Howard, 102 Mo. 142, 14 S.W. 937; State v. Edmundson, 218 S.W. 864; Miller v. Journal Co., 246 Mo. 722, 152 S.W. 40, Ann. Cas. 1914B, 679; Kribs v. United Order of Foresters, 191 Mo. App. 524, 177 S.W. 766; Wigmore on Evidence (2d Ed.), sec. 982, p. 366; Wigmore on Evidence (3d Ed.), sec. 980, p. 545; sec. 949, p. 503, sec. 967, p. 525; 1 Greenleaf on Evidence (16th Ed.), sec. 461 (c), p. 580; 70 Corpus Juris, secs. 1148, 1180, pp. 948, 980. (2) Plaintiff was entitled to new trial on the grounds so assigned as the court erred in permitting defendants' counsel in his opening statement to state that Stanley Best refused to testify at the coroner's inquest over the death of plaintiff's deceased, over the objection and exception of plaintiff, and again erred in failing and refusing to declare a mistrial and to discharge the jury at plaintiff's request, after defendants' counsel had made such statement to the jury, and over the objection and exception of plaintiff. Masterson v. Transit Co., 204 Mo. 507, 103 S.W. 48; Garrett v. St. Louis Transit Co., 219 Mo. 65, 118 S.W. 68; State v. Conway, 348 Mo. 580, 154 S.W. (2d) 128. (3) The trial court has wide discretion in passing on a motion for new trial and where such motion is sustained the Supreme Court will be liberal in upholding the trial court's action. Reichmuth v. Adler, 155 S.W. (2d) 181; Graves v. Dakessian, 132 S.W. (2d) 972. (4) Where error is committed the Supreme Court must presume that the trial court acted correctly in sustaining motion for new trial, though error may not have been sufficient to warrant reversal of the judgment. Thompson v. St. Joseph Ry., etc., 345 Mo. 31, 131 S.W. (2d) 574. (5) A wide discretion is given to a trial court in the conduct of a trial. This must necessarily be the rule, for otherwise the expeditious disposition of litigation could be greatly interfered with. Sanguinet v. May Department Stores Co., 65 S.W. (2d) 162. (6) The trial court has wide discretion in passing upon motion for new trial, and the exercise thereof will not be interfered with on appeal unless the reason assigned was directly contrary to established rules of law, or the order was the result of judicial indiscretion. Beer v. Martel, 55 S.W. (2d) 482.

LEEDY, P.J.

This is an action for the alleged wrongful death of Matthew Holden, brought by his widow, as administratrix of his estate. The jury found for defendants, who appeal from the order granting a new trial.

Holden died as the result of injuries sustained in an automobile collision which occurred shortly after 1:30 o'clock on Sunday morning, August 11, 1940, on Illinois State Highway No. 4. He was one of four occupants of a Ford car being driven by Stanley Best. The Ford, south-bound, was en route from Carlinville to Gillespie, both points being in the State of Illinois, when, on a straight and level stretch of highway, it collided with defendants' truck. The truck had been delivering the Sunday edition of a St. Louis newspaper, along its regular route, in charge of Sebastian Kraus, its only occupant. Fries, another passenger in the Ford, was killed. Woodruff, the fourth occupant, testified that he was asleep in the back seat, and although he was not injured, he knew nothing about the collision, nor how he got away from the scene, or anything else until the following morning. Kraus, defendants' chauffeur, remained unconscious for ten days, after which he remembered neither the facts of the accident, nor the events immediately preceding it. There were no other eyewitnesses to the accident.

[1] Plaintiff's principal witness was the driver, Stanley Best. On his cross-examination it was elicited (over plaintiff's objection and exception) that he had been indicted in connection with Holden's death on a charge of driving while intoxicated, and that said charge was then pending and undisposed of. Plaintiff sought, unsuccessfully, to have a mistrial declared on that account. The matter was assigned as error in plaintiff's motion for new trial. The order sustaining said motion and granting a new trial specified such as the ground therefor, and for like error in permitting defendants' counsel, in his opening statement, to tell the jury defendants would show said witness had been indicted for manslaughter over the death of Matthews.

Defendants contend that said statement and proof was something to which they were entitled as a matter of right because relevant to a material issue, i.e., the interest and bias of the witness, and that, therefore, the court erred in ordering a new trial. Such is the limited issue presented by this appeal. Defendants expressly recognize and agree with the well-settled general rule that a witness cannot be discredited by interrogating him on cross-examination concerning a mere accusation or indictment for crime [State v. Howard, 102 Mo. 142, 14 S.W. 937; State v. Edmundson (Mo.), 218 S.W. 864; State v. Snow (Mo.), 252 S.W. 629; State v. Pine, 332 Mo. 314, 57 S.W. (2d) 1087; State v. Menz (Mo.), 106 S.W. (2d) 440; Hoffman v. Graber (Mo. App.), 153 S.W. (2d) 817; Marrah v. J. & R. Motor Supply Co. (Mo. App.), 165 S.W. (2d) 271] but they contend said rule has no application to a situation where, as here, the witness is under indictment for an offense growing out of the very subject under investigation, the argument being that "where proof of the indictment discloses an interest in the witness — a compelling motive to tell a story which will fix blame on defendants, because the same story, if believed, will absolve him from criminal guilt — such proof has always been held proper."

The general rule just noticed has been announced in the many cases construing and applying Sec. 1916 Mo. R.S.A.¹ Said section is the one by which the disqualification of convicts as witnesses was removed, but which in express terms permits the fact of conviction of a witness to be proved "to affect his credibility." It has been held that the statute "by implication at least" excludes a mere charge of a criminal offense as any evidence affecting the credibility of the witness. [State v. Wigger, 196 Mo. 90, l.c. 99, 100, 93 S.W. 390, l.c. 393.] The same case points out that an indictment or information is a mere formal charge and is no evidence of the guilt of the defendant of the charge therein contained, and that the court always so instructs the jury. "This being so," says the court, "how can it be logically or in good reason said that the mere filing of an information or indictment against a party, upon which no conviction has been had, ought to be admitted as affecting the credibility of such a witness?"

As said in 3 Wigmore, sec. 980a, p. 545 (3d Ed.), that, in jurisdictions such as our own, "a mere arrest or indictment will not be allowed to be inquired after; since the fact of arrest or indictment is quite consistent with innocence, and since the reception of such evidence is merely the reception of somebody's hearsay assertion as to the witness' guilt. To admit this would involve a violation both of the Hearsay rule and of the rule forbidding extrinsic testimony of misconduct."

"The fact that an unproven charge has been made against one has no logical tendency to prove that he had been guilty of any offense, or to impair the credibility of his testimony. An indictment is a mere accusation, and raises no presumption of guilt. On the contrary, the indicted person is presumed to be innocent until his guilt is established, by legal evidence...