State v. Barrett

• Decision Date: 27 February 1912
• Citation: State v. Barrett, 240 Mo. 161, 144 S.W. 485 (Mo. 1912)
• Parties: STATE v. BARRETT.
• Court: Missouri Supreme Court

144 S.W. 485

240 Mo. 161

STATE v. BARRETT.

Supreme Court of Missouri, Division No. 2.

February 27, 1912.

1. WITNESSES (§ 337) — CHARACTER EVIDENCE — REBUTTAL.

After accused had testified as a witness in his own behalf, the state was entitled to introduce proof of his bad moral character in rebuttal.

2. HOMICIDE (§ 188)—EVIDENCE—PARTICULAR ACTS OF VIOLENCE.

In a prosecution for murder, evidence of prior particular acts of violence committed by deceased against others than defendant, of which defendant had no knowledge at the time of the homicide, was properly excluded.

3. CRIMINAL LAW (§ 448)—EVIDENCE—REPUTATION OF DECEASED—OPINIONS.

Mere opinions as to deceased's reputation for violence, and as to whether deceased had not been the "most dangerous man" in the county, were properly excluded, where the same witnesses testified to the fact that deceased was a man of a bad reputation.

4. CRIMINAL LAW (§ 1137) — EVIDENCE ADMISSIBLE— RIGHT TO OBJECT.

Where, in a prosecution for homicide, defendant, on cross-examination of impeaching witnesses who testified to defendant's bad reputation, sought to show that such reputation was the outgrowth of matters of no great consequence, so far as concerned the trait of character with respect to which the state was endeavoring to impeach defendant and his witness, H., defendant could not object to evidence offered by the state to show that defendant was in the habit of drinking, and also to show specific acts of wrongdoing for the purpose of impeaching H.

5. HOMICIDE (§ 309)—DECREE—FOURTH DEGREE MANSLAUGHTER.

Where, in a prosecution for homicide, there was no testimony that at the time defendant shot deceased deceased had assaulted defendant to an extent amounting to personal violence, the court properly refused to charge on manslaughter in the fourth degree.

6. HOMICIDE (§ 300)—DECEASED'S BAD REPUTATION —KNOWLEDGE—LIMITATION OF EVIDENCE.

Where there was no evidence that defendant had knowledge of deceased's bad reputation as a dangerous man at the time of the killing, so that such reputation could not have affected deceased's apprehension of death or great bodily injury at the hands of deceased, the court did not err in refusing to charge that the jury might consider such evidence as throwing light on defendant's apprehension, if any, at the time of the shooting, and on the conduct and demeanor of deceased during the difficulty.

Appeal from Circuit Court, Pemiscot County; H. C. Riley, Judge.

Frank Barrett was convicted of second degree murder, and he appeals. Affirmed.

C. P. Hawkins, for appellant. The Attorney General, for the State.

KENNISH, J.

Convicted in the Pemiscot circuit court of murder in the second degree, defendant appealed.

The evidence for the state tended to show that in company with others deceased and defendant, on the day of the killing, had participated in a drinking bout at the home of one Fronan, a witness for the state. Deceased and defendant were on friendly terms when they reached Fronan's; the gun (unloaded) which defendant had and the knife in Sells' (deceased's) possession being taken for no unlawful purpose, so far as the evidence in this record indicates. Fronan, aware of deceased's dangerous disposition, secured the latter's knife in advance of and in order to prevent trouble, but did not deem it necessary to deprive defendant of his gun. After drinking considerably and engaging in some boisterous conduct at Fronan's, and after defendant had searched deceased (whether for weapons or whisky the evidence is not clear), the two left Fronan's and went to the hotel, where their conversation indicated that a quarrel had been in progress, and where the evidence of one witness indicates defendant threatened to kill deceased, but, though armed with his shotgun, made no effort to do so. Sells, the deceased, left the hotel, and defendant went to his room and soon came out, loading his gun. He then went to the front of a lumber company's office and sat down upon the steps. In a short time, Sells came into view and walked down to a store some 40 feet from where defendant was sitting, looked into the store, turned, retraced his steps, procured an oak club, a piece of stacking stick, about three feet long, one inch thick, and two inches broad, and walked rapidly, weapon in hand ("like he was looking for something"), past the store mentioned, along the porch toward where defendant was sitting. As he approached, the latter jumped off and away from the steps, and deceased leaped toward him, "but not quite facing him," and as he reached the ground a few feet from defendant the latter fired; the charge striking Sells on the right shoulder. This shot was fired at such close range that it set fire to deceased's clothing, and, though the injury inflicted was not a fatal one, the wounded man dropped his club and ran "between 15 and 25 feet" to a fence, when defendant raised his gun and fired a second time. Sells was looking sidewise toward defendant, but turned just as the shot was fired, so that it struck him in the back of the head, and caused his death in a few minutes. It appears from the testimony of the physician who reached Sells in a very short time that this second shot singed or burned the hair along the neck. On cross-examination several witnesses for the state testified that deceased had the reputation of being a violent, turbulent, and dangerous man.

On the part of the defense, the evidence tended to show that deceased, knife in hand, had been looking for defendant, declaring he intended "to cut his throat if he could find him"; that immediately before he was killed, as he approached the place where defendant was sitting, he told one witness (referring to defendant) that he was "going to kill the son of a bitch before night"; that as he walked straight to where defendant was sitting the latter arose from the steps, and, as Sells, after coming down the steps, advanced upon him with the club raised to strike, drew his gun up and fired twice in rapid succession; Sells wheeling as the first shot was fired. Threats on the same day by Sells to kill defendant "before he slept a wink," and the like, were in evidence, and witnesses (including officials) for the defense, as well as those for the state, testified to the fact that deceased had the reputation of being a violent, dangerous, and desperate man, and the record of his conviction for felonious assault and sentence to the penitentiary was in evidence. There was also evidence that during the afternoon Sells had drawn a knife on defendant, and, with vile epithets, declared he "had it in for him, and this is as good time to settle it as we will ever get."

Defendant's version of the matter was that, after being threatened by deceased during the afternoon, he concluded to leave the town to avoid trouble and took his shotgun to kill rabbits for bait on his trot line; that he came around the back way to avoid being seen by Sells, and when he reached a point between the store and the office, Sells was on the office porch with a knife and a club, and immediately declared he was going to "cut his [defendant's] head off" and "beat him up," and started for him; that Sells jumped off the porch, and was coming at him, when he fired twice, as quickly as he could; and that he shot because he had to do so to save his own life. The state offered some evidence that defendant's reputation for morality was bad. Cross-examination developed the fact that this was due practically entirely to his habit of drinking too much.

Numerous exceptions were saved to the rulings of the trial court. In answer to the objections made to the information, nothing need be said, save that previous decisions (State v. Bailey, 190 Mo., loc. cit. 263, 88 S. W. 733; State v. Barnett and Baker, 203 Mo., loc. cit. 645, 102 S. W. 506; State v. Hudspeth, 150 Mo., loc. cit. 19, 51 S. W. 483; State v. Turlington, 102 Mo., loc. cit. 647, 15 S. W. 141) attest its sufficiency; and no further reply need be made to the complaint of the ruling of the trial court in admitting evidence of defendant's bad moral character, in rebuttal and after he had testified as a witness, than that the ruling was in accord with the settled law of this state. State v. Beckner, 194 Mo. 281, 91 S. W. 892, 3 L. R. A. (N. S.) 535; State v. Priest, 215 Mo., loc. cit. 7, 114 S. W. 949.

The ruling excluding evidence of prior particular acts of violence committed by deceased against others than defendant, of which defendant had no knowledge of any kind at the time of the homicide, was in accord with the rule long adhered to in this state. State v. Green, 229 Mo., loc. cit. 652, 129 S. W. 700; State v. Elkins, 63 Mo., loc. cit. 165. There was ample evidence that deceased was generally reputed to be of violent, dangerous, and desperate character. In fact, there was no contention to the contrary; witnesses for the state and defendant agreeing in this particular.

Nor was it error to exclude mere opinions as to the deceased's reputation in the respect mentioned, and opinions as to whether deceased had not been the "most dangerous man" in the county. The same witnesses testified to the fact of bad reputation, and comparisons with an uncertain and undefined standard of this kind could not have aided the jury or benefited the defendant in this case.

Complaint is also made that the court permitted the state to show that defendant was in the habit of drinking and to show specific acts of wrongdoing, for the purpose of impeaching the witness Hill. A careful examination of the record discloses that there is no foundation therein for this assignment. These matters were brought out by defendant's counsel on the cross-examination of impeaching witnesses, and seem to have been purposely elicited to break the force of the general answers given by such witnesses by showing that the bad reputation to which they had testified was the outgrowth of matters of no great consequence, so...