State v. Baker, 45665

• Decision Date: 08 October 1956
• Docket Number: No. 45665,No. 1,45665,1
• Citation: 293 S.W.2d 900
• Parties: STATE of Missouri, Respondent, v. Woodrow A. BAKER, Appellant
• Court: Missouri Supreme Court

Page 900

293 S.W.2d 900

STATE of Missouri, Respondent, v. Woodrow A. BAKER, Appellant.

No. 45665.

Supreme Court of Missouri, Division No. 1.

Oct. 8, 1956.

Harry C. Blanton, Sikeston, Blanton & Blanton, Sikeston, of counsel, for appellant.

John M. Dalton, Atty. Gen., George E. Schaaf, Asst. Atty. Gen., for respondent.

HYDE, Judge.

Defendant was found guilty by a jury and sentenced to two years imprisonment in the penitentiary for taking indecent improper liberties with a female minor of the age of 7 years 'by then and there putting his hands upon and about her person and the private parts of her body' in violation of Section 563.160. (Statutory references are to RSMo and V.A.M.S.) Defendant has appealed from this judgment of conviction and sentence.

It is not contended that the State failed to make a case for the jury on this charge so it is sufficient to say that the prosecuting witness testified to the acts charged and that it was conceded she was competent to testify as a witness. Defendant denied that he touched her 'in any way, shape or form', although he was alone with her for some time, in the apartment where she lived with her parents, after her young companion (baby sitter) left and before her father arrived. Defendant worked for Periodical Publishers and made a collection the day before from her father at the apartment (for magazines) and said her father had invited him to come back the next evening when he returned from work (as a city policeman) which he expected to be about 4:30 P.M.. However, her father was delayed and did not reach the apartment until after 5:00 P.M.; defendant stayed and talked to him until after 6:00 P.M., discussing the grand jury then in session. The prosecuting witness did not tell her mother about the occurrence until about 8:00 P.M. when she was going to bed. Her parents went at once to the Prosecuting Attorney and defendant was arrested and taken to jail that night.

Defendant contends that he did not have a fair and impartial trial because of several incidents occurring during the trial which he says required the discharge of the jury. We will consider these in the order of their occurrence at the trial. The first was during the cross-examination of the father of the prosecuting witness, who testified as a witness for the State. After it had been brought out that the little girl had been sent to a store for cigarettes while defendant and her father were talking, the following occurred:

'Q. And I will ask you if during her absence if you didn't ask the defendant Baker if he didn't want to go for a ride with you in the country?

'Mr. Gilmore: I will object to that, Your Honor.

'The Witness: I would like to answer that.

'The Court: Overruled; he may answer.

'The Witness: I did not, and if he says I did he's a lying son-of-a-bitch, if he said I did. I may be out of order and I'm sorry, Judge.

'The Court: Be quiet, Mr. Witness----

'Q. (By Mr. Blanton) And I will ask you----

'The Court: Wait a minute----

'The Witness: I'm sorry.

'The Court: (addressing the witness) The Court can appreciate your position but----

'The Witness: Damn right--(At this point the witness began crying and left the witness chair.)

'Mr. Dempster: We would like to move for a recess a moment, Your Honor.

'The Court: Gentlemen of the jury, go in the jury room.'

During the recess and in the absence of the jury, defendant's counsel moved that the jury be discharged 'in view of this outburst from the witness stand.' The Court denied the motion but reprimanded the witness, fined him $15 for contempt of court and warned him that 'any further recurrence of this will be dealt with immediately and severely.' The jury was then brought in and the Court made the following statement: 'The Court: Gentlemen of the jury, you are instructed to disregard statements made by (the witness), now on the stand, which he implied a certain term of the defendant if the defendant said that he said certain things. You are also instructed to disregard the action and demeanor of the witness immediately following that, which occurred immediately before recess. That language is stricken out of the record. You are instructed to disregard the witness' conduct, that is not a part of the evidence in this case, it should have no part in your deliberation in any way, and you are to disregard that and to give it no consideration when the case is finally submitted to you. You will decide it upon the evidence as you hear and believe it from the witness stand, and under the instructions from the Court, as though this conduct had never occurred.'

(Defendant later testified that the father of the prosecuting witness had said to him: 'Would you like to take a ride'; to which he responded, 'Where to?' and he said, 'Out in the country' and defendant then said 'What for?' and he said, 'We can have a little party' to which defendant responded, 'You can get indicted for something like that'. Defendant said he was kidding, but that the response was 'I'm not going to be indicted, and if anybody gets indicted it will be you. When I wear this uniform I'm as big as anybody in town, and don't you forget it.')

Defendant says a demonstration such as this is calculated to arouse sympathy or passion and prejudice and should not be permitted, citing State v. Connor, Mo.Sup., 252 S.W. 713; and that in a case of this nature the charge is so abhorrent that conviction is easy and that the utmost impartiality and fairness on the part of the prosecutor and the Court during the trial is required, citing State v. Seay, 282 Mo. 672, 222 S.W. 427; State v. Pierson, 331 Mo. 636, 56 S.W.2d 120, 124; State v. Klink, 363 Mo. 907, 254 S.W.2d 650, loc. cit. 657. We agree with these statements but do not think this incident necessarily required the discharge of the jury; and that was the only action requested.

In this case, the Court did not permit the demonstration by the witness of his feelings to continue, as in the Connor case. On the contrary, before defendant's counsel made any objection or request, the Court sent the jury out of the courtroom and in their absence took vigorous action against the witness before resuming the trial, and after which there was no complaint as to his conduct. The Court also clearly and emphatically admonished the jury to disregard this incident and conduct. Declaring a mistrial for misconduct of a witness or spectator lies largely within the discretion of the trial judge. State v. Topalovacki, Mo.Sup., 213 S.W. 104, 105; State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877, 881; State v. Bolle, Mo.Sup., 201 S.W.2d 158, 160; State v. Cooley, Mo.Sup., 221 S.W.2d 480, 486; see also State v. Swindell, Mo.Sup., 271 S.W.2d 533, 536; State v. Johnson, Mo.Sup., 286 S.W.2d 787, 795. We cannot say there was any abuse of discretion in regard to this matter or that the action taken was insufficient.

The second incident was during the testimony of the Deputy Sheriff (a witness for the State) who went with the Sheriff to arrest defendant. The witness said he was at the front door of defendant's home and saw defendant with his wife and small child inside. The following then occurred:

'Q. (By Mr. Dempster) Did you hear any conversation between Baker's wife and Baker? A. Yes, sir, I did.

'Q. In Baker's presence? A. Yes, sir.

'Q. Tell us what the conversation was. A. The conversation, she said to him, 'This little girl wouldn't accuse you of this if there wasn't something to it.'

'Q. Now, was there anything else said?

'Mr. Blanton: We asked that be stricken as not being binding on the defendant, and highly prejudicial.

'The Court: I don't know, until we get the conversation. It's overruled at this time in view of this question, he's asking now what Mr. Baker said, if anything.

'Q. (By Mr. Dempster) Did Mr. Baker say anything? A. No, sir.

'Q. Did the defendant then come out of the house later? A. Yes, sir, just a few minutes.

'The Court: Now, wait just a minute. Mr. Witness, was the defendant Baker, do you know whether he was under arrest at that time or not?

'The Witness: I suppose the Sheriff had placed him under arrest----

'The Court: Never mind what you suppose, do you know whether he was or wasn't?

'The Witness: Yes, sir, he was.

'Mr. Blanton: Now, we ask that it be stricken.

'The Court: The motion is sustained, the evidence as to what the defendant's wife said is stricken from the record, and the jury is instructed to disregard it, because one accused is not required or obliged to make any answers when they are under arrest.

'Mr. Blanton: And we further ask that because of the impropriety on the part of the employee of the prosecutor that the jury be discharged.

'The Court: Motion denied.'

It is now contended that this testimony was hearsay and that it was also inadmissible because statements of wife to husband are confidential and a wife is incompetent to testify against her husband. No such objection was made at the trial nor were these grounds stated in the motion for new trial; and, in fact, no objection was made at all although the first three questions, set out above, clearly indicated that the conversation between defendant and his wife was being offered in evidence. In fact, on request of any kind was made to the Court until after the conversation had been stated in answer to the third question and a fourth question had been asked about it. See State v. Di Stefano, Mo.Sup., 152 S.W.2d 20, 22; State v. Tyson, 363 Mo. 1242, 258 S.W.2d 651, 655; State v. Burns, Mo.Sup., 280 S.W.2d 119, 122. Thereafter, the Court did strike out the testimony about this conversation upon another ground, also now raised in defendant's brief but which was first raised by the Court itself at the trial. Thus, although no objection was made to these questions, the Court did take the action thereafter requested (that this evidence be stricken) and clearly instructed the jury to disregard this testimony. Furthermore, we have held that a...