State v. Beatty

• Decision Date: 20 May 1936
• Docket Number: No. 5627.,5627.
• Citation: 94 S.W.2d 907
• Court: Missouri Court of Appeals
• Parties: STATE v. BEATTY.

94 S.W.2d 907

STATE v. BEATTY.

No. 5627.

Springfield Court of Appeals. Missouri.

May 20, 1936.

Appeal from Circuit Court, Oregon County; Will H. D. Green, Judge.

"Not to be published in State Reports."

John Beatty, Jr., was convicted of disturbing the peace by swearing, threatening, and challenging to fight, and he appeals.

Reversed and remanded.

H. D. Green, of West Plains, for appellant.

Percy W. Gullic, of Alton, for respondent.

BAILEY, Judge.

The defendant, appellant here, was charged by information with disturbing the peace of one Everett English by swearing, threatening, and challenging to fight. On trial to a jury defendant was found guilty and his punishment fixed at a fine of $50. An appeal was granted defendant to this court.

The prosecuting witness Everett English, who was the only witness as to what occurred at the time and place in question, other than defendant, testified in part as follows:

"On August 27th, 1934, I was plowing in my field along the road and John Beatty came along in a car coming South. John drove passed me and said, `Hello, Everett.' He ran past me fifteen or twenty steps and then backed up and said, `This is a hell of a life to live.' I said, `It looks that way.' He said, `Come out here, I want to talk to you.' I said, `No, I don't want to talk to you.' I saw he was drunk. * * *

"By Mr. Green: We object to that statement, as a conclusion of the witness; and for the reason that it is immaterial and irrelevant, and does not tend to prove or disprove any issue in this case, and is prejudicial to the rights of the defendant. We move that a mistrial be declared, and the jury discharged.

"By the Court: Objection overruled. (To which ruling of the Court, counsel for defendant at the time excepted.)

"Witness: After I didn't come out he said, `I'm going to whip hell out of you, you black son of a bitch.' He kept calling me a son of a bitch. His brother in law came along after that time and they left together. This occurred in Oregon County, Missouri."

We have set forth the foregoing testimony and objection in full because of defendant's first assignment of error to the effect that the trial court erred in permitting Everett English to testify that John Beatty was drunk at the time of the alleged disturbance. It appears the statement that defendant was drunk was a voluntary statement made by the witness and not in response to the question asked. Under such circumstances, if defendant desired to object to the answer and save his point as to the ruling thereon, it was his duty to move to strike out such evidence and ask that the same be disregarded. State v. Eisenhour, 132 Mo. 140, loc. cit. 145, 33 S.W. 785. There was no motion to strike. While the evidence objected to was no doubt improper as a conclusion of the witness and irrelevant because of bringing into the case evidence of the commission of a crime of which defendant was not accused, that of driving a car while intoxicated, we are forced to the conclusion the point was not saved. It is true defendant asked for the discharge of the jury, but it is a matter largely within the discretion of the trial judge. State v. Topalovacki (Mo.Sup.) 213 S.W. 104. We are unable to hold the trial court abused its discretion in that respect.

In the cross-examination of defendant's witness Waldo Haubazell, the prosecuting attorney, in an effort to impeach him as a witness, asked him if def...