State v. Bradford

• Decision Date: 19 February 1930
• Docket Number: No. 29970.,29970.
• Citation: 24 S.W.2d 993
• Parties: THE STATE v. CALE BRADFORD, Appellant.
• Court: Missouri Supreme Court

24 S.W.2d 993

THE STATE v. CALE BRADFORD, Appellant.

No. 29970.

Supreme Court of Missouri, Division No. 2.

February 19, 1930.

Appeal from New Madrid Circuit Court. — Hon. Henry C. Riley, Judge.

REVERSED AND REMANDED.

McKay & Peal and Ward & Reeves for appellant.

(1) Plaintiff's witness Jim Flowers was permitted to testify to what Rayburn Thomason said long before the difficulty, and long before defendant was brought into the trouble and without any concerted action or conspiracy shown. Also plaintiff's witness Frazier was permitted to say somebody told him that one of the Thomason boys hit deceased Fulgham. Said testimony was hearsay and not binding on the defendant, but was prejudicial to him. (2) There was no foundation laid for reading the purported testimony of Chapman. It was shown, over the objections of the defendant, by Steinbraker that he was official court reporter of the Circuit Court of Pemiscot County; that he attended the preliminary and took the testimony and transcribed it and made a certificate. It is no authenticity to testimony taken at a preliminary that the court reporter took it. The authenticity of a preliminary cannot be established by certificate of the court reporter, as that is not his duty; and the court erred in permitting such proof. Sec. 12669, R.S. 1919. Neither was the transcript made competent by the proof, over defendant's objection, of the transcript of the justice of the peace, since said transcript did not mention this alleged testimony; did not state that the testimony was taken in writing; did not certify this as the testimony taken at the preliminary, and according to the stenographer this copy was made by him and left with the prosecuting attorney; but the certificate of the justice of the peace was offered and showed it was signed by typewriter and made no reference whatever to this testimony offered or any testimony taken at the preliminary. Secs. 3834, 3825, R.S. 1919. It was error to admit testimony of a witness, even if authenticated, taken at the preliminary examination, and even if the witness was shown to be in another state. State v. Houser, 26 Mo. 431; State v. Harp, 6 S.W. (2d) 562. (3) The instruction on manslaughter is not the correct or proper instruction on manslaughter, nor properly sets forth the necessary elements to constitute manslaughter. State v. Faris, 6 S.W. (2d) 905. And since the defendant was convicted of a higher offense, then it was reversible error to give an erroneous instruction on manslaughter. State v. Little, 228 Mo. 273.

Stratton Shartel, Attorney-General, and A.M. Meyer, Assistant Attorney-General, for respondent.

(1) The testimony of the witness Flowers regarding the question asked deceased by one of the Thomasons at the commencement of the difficulty, was admissible as tending to show concerted action by defendant and the Thomasons. State v. Craft, 299 Mo. 347; State v. Fields, 234 Mo. 615; State v. Miller, 191 Mo. 587. Witness Charley Frazier testified that at the time and place of the affray he heard someone say the Thomason boy hit the deceased. This was a part of the res gestae, and therefore admissible. State v. Baker, 209 Mo. 450; State v. Hart, 309 Mo. 77. But even if the evidence were not so admissible, the defendant could not have been harmed by it since all the testimony on both sides tended to show that one of the Thomason boys hit deceased over the left eye at that time and place. And the witness J.W. Thomason on direct examination on behalf of the defendant stated that he struck deceased, and detailed the circumstances. (2) The testimony of the witness Chapman taken at the preliminary hearing was properly admitted. It is not shown that the testimony read to the jury was not the testimony of Chapman. In fact it is conceded that it was his testimony. Its authenticity was sufficiently established by the testimony of the stenographer who took it. The statute does not require the evidence taken at a preliminary in a homicide case to be separately certified. The certificate of the justice was sufficient. Secs. 3825, 3834, R.S. 1919. The transcript was duly filed by the magistrate in the office of the circuit clerk. Sec. 3834, supra. The admissibility of the testimony in question does not depend upon the directory statutes defining the duty of justices of the peace, but upon questions affecting the reasons for the hearsay rule. Regardless of the form of the justice's certificate: The testimony was taken under oath, with the possibility of prosecution for perjury; there was cross-examination; there was necessity, due to the fact the witness himself was beyond the reach of process, through no fault of the State; there was confrontation. "When the reason for a rule of law fails, the rule fails." The testimony was properly admitted. State v. Harp, 6 S.W. (2d) 562; State v. Butler, 247 Mo. 685; State v. McO'Blenis, 24 Mo. 402.

COOLEY, C.

Defendant, Cale Bradford, was convicted in the Circuit Court of New Madrid County, on change of venue from Pemiscot County, of murder in the second degree, for the killing of one Jesse Fulgham, and sentenced to ten years' imprisonment in the penitentiary, and he appeals.

Deceased lived at Yarbro, Arkansas, a mile or so from the Missouri-Arkansas state line. Defendant lived in Pemiscot County, Missouri, near the state line. On the evening of September 3, 1927, both were at a dance at the home of one Frazier in Pemiscot County. The State's evidence tends to show that about the time the dance "broke up" deceased and one Flowers, a witness for the State, went to deceased's car, intending to go home. They had gotten in the car when defendant, with J.W. Thomason, Rayburn Thomason and Bill Cahoon, approached, and one of them asked Flowers if he were Jesse Fulgham, to which Flowers replied: "No, sir." Thereupon deceased said: "Here I am." One of the Thomasons then asked deceased if he was the son-of-a-bitch who had arrested him (Thomason) and taken a half pint of liquor from him. Deceased denied being that man and said he could prove it. They all started toward the dance platform, seemingly for the purpose of settling the question of identity, but before reaching it J.W. Thomason struck deceased in the face with his fist, causing deceased to stagger backward, and as deceased staggered back from the blow, defendant drew a pistol and shot him through the body, inflicting a mortal wound, from which death ensued about noon the next day. The State's evidence tended to show that there had been no previous quarrel and no angry or offensive language used, except the question above mentioned, prior to the blow by Thomason and the shooting, and that none of the men appeared to be angry. The evidence indicates that there was very little conversation and that defendant said nothing to deceased or deceased to him.

Defendant's evidence was to the effect that he had not previously known deceased or had any difficulty with him; that he and J.W. Thomason were going toward the latter's car, Rayburn Thomason walking ahead of them, when he heard Rayburn speak to Flowers and deceased, and he and J.W. Thomason stopped to hear what was said. The version of the conversation at deceased's car given by defendant and his witnesses differs somewhat from that of the State's witnesses, the chief difference being that, according to defendant's witnesses, the term "son-of-a-bitch" was not used, and the question asked deceased was whether he was the man who had arrested Thomason and taken some money (instead of liquor) from him; that they all started toward the dance platform to settle the question of identity; that Cahoon, who had not been with them at first, was noticed by deceased, who said to Cahoon: "Are you my friend?" To which Cahoon replied that he was everybody's friend, whereupon deceased avowed that he was not afraid of any Goddamned son-of-a-bitch; that Cahoon thereupon took deceased by the arm, telling him not to do that and to come with him, and deceased jerked loose and began to strike defendant who, up to that time, had said nothing and taken no part in the proceedings; that Cahoon then caught hold of defendant and "hollered for some one to get the other fellow;" that deceased continued to strike defendant in the face with his fist and then "made a play back to his pocket" and started toward defendant, taking one step toward him, when defendant shot deceased. There was but one shot fired. There was evidence from defendant's side that the blow received by deceased was struck by J.W. Thomason while defendant was being held by Cahoon and was being struck by deceased, and that the blow staggered or pushed deceased away from defendant, and that it was at this juncture that deceased made a movement toward his pocket and started toward defendant just before the shot was fired. Defendant claimed that he shot deceased in self-defense, believing that his life was in danger; that he had not said or done anything to provoke deceased and did not know deceased was angry until the latter began striking him. There was also evidence offered by defendant to the effect that deceased was intoxicated, and that he had brought whisky to the dance to sell and had sold some there that night. There was no evidence that defendant or the Thomasons were under the influence of liquor.

The court admitted and there was read in evidence, over the objections and exceptions of defendant, the testimony in chief given by one K.W. Chapman at defendant's preliminary examination. Chapman was a resident of Yarbro, Arkansas, and was not called as a witness at the trial. His testimony at the preliminary examination had been taken down in shorthand by the official reporter and thereafter transcribed by the reporter and given to the prosecuting attorney. The reporter identified his transcript at the trial and the aforesaid testimony of Chapman was read from that transcript. This evidence was read for the purpose of proving a dying declaration of...