State v. Brooks

• Decision Date: 08 October 1962
• Docket Number: No. 49327,No. 1,49327,1
• Citation: 360 S.W.2d 622
• Parties: STATE of Missourl, Respondent, v. Lillie Mae BROOKS, Appellant
• Court: Missouri Supreme Court

Page 622

360 S.W.2d 622

STATE of Missourl, Respondent, v. Lillie Mae BROOKS, Appellant.

No. 49327.

Supreme Court of Missouri, Division No. 1.

Oct. 8, 1962.

Thomas J. Allen, Kansas City, for appellant.

Thomas F. Eagleton, Atty. Gen., Allen J. Roth, Special Asst. Atty. Gen., Jefferson City, for respondent.

COIL, Commissioner.

Lillie Mae Brooks was convicted of second degree murder and her punishment fixed at twelve years in the state penitentiary. Inasmuch as she has filed no brief on her appeal from the ensuing judgment, we examine the assignments of error in her motion for new trial.

Assignment 11 was that the trial court erred in failing to sustain her motion for judgment of acquittal at the close of the state's case. Defendant waived that motion by offering evidence in her defense. She does not contend that there was no submissible case at the close of all the evidence.

The evidence tended to show that on July 18, 1961, about 6:45 p. m., defendant and her then husband, Milton Brooks, were walking west on the north side of Lucas Avenue in St. Louis toward their residence. Their automobile was parked facing west at the north curb of Lucas in front of their house. When they had reached a place on the sidewalk approximately even with the rear of the car, Milton went to the rear of the automobile and bent over as though he intended to open the trunk; whereupon defendant walked to a place behind her husband, reached under her blouse and withdrew a knife which she had theretofore concealed with which she stabbed her husband in the back. Milton died shortly thereafter from the wound thereby inflicted. A friend of deceased removed the knife from and assisted Milton to a prone position. The knife dropped to the street after it was pulled from deceased's back and was near deceased's body. Exhibit 3 was identified as a photograph showing the automobile and the knife in the street after deceased's body had been removed. Defendant, arrested about 7:15 p. m., about a block from her residence, was taken to a police station where she told an officer that she and her husband had been arguing about a woman who lived next door; that when they returned to the residence on the occasion in question, the husband went to the back of the car to get some shoes from the trunk; that she, in the meantime, went into the house, got a knife, concealed it in her blouse. and went up to her husband; that he cursed at her and grabbed her arm and then turned around as if to open the trunk and she stabbed him. There was testimony that at the time of her statement defendant's eyes were black and that she had bruises on her arms, which she told the officer had been inflicted by her husband. Defendant's written statement was to the effect that after she had obtained the knife and had hidden it under her blouse, her husband was at the car and locking the trunk when she approached him, that he pushed her back and had a wrench or something in his hand, and, after he turned around, she stuck him in the back. At the trial, defendant testified to numerous assaults and other acts of mistreatment by deceased and said that on the day in question they had been to a picnic and upon their return defendant had mistreated her; that later she found him talking to the 'other woman' and that she and deceased then started walking up Lucas Street arguing; that deceased had tried to push her into a doorway and that he had an open knife in his hand and swung at her with the knife and scratched her arm; that she was in fear of her life, and she doesn't remember whether she stabbed him or just when she did, if so, but that it must have been after he hit her. Further testimony will be related as necessary to the disposition of specific assignments.

Defendant's new trial assignment 1 is that the trial court erred in permitting testimony concerning and in allowing the jury to see state's exhibit 3 when it was held by a witness on the stand. The exhibit was a picture showing the knife in the street at the rear of an automobile. The reason assigned in the new trial motion is that there was no showing as to who placed the knife in the position shown in the exhibit. The record shows that exhibit 3 was never offered or admitted in evidence and that defendant made no objection to the exhibit or to any testimony concerning it. Consequently, there is nothing concerning the exhibit preserved for our review. State v. Bland, Mo., 353 S.W.2d 584, 586[3-5]. We observe, however, that, as indicated in the fact statement above, there was testimony that the knife fell to the position apparently shown on exhibit 3 immediately after being pulled from the back of deceased.

Assignment 2 charges the trial court with error in making a statement to a member of the jury panel at the time the judge excused the prospective juror by reason of the answer he (the juror) had made to a question. The record shows that defendant's attorney asked the panel whether any member had been the victim of a crime. One answered that he had been held up and that such would tend to prejudice him for or against one of the parties. The court asked whether the juror felt his experience would interfere with his judgment even though the case on trial involved a crime of a different type. The panel member then indicated that he probably would not be influenced by his experience; but the court pointed out that the prospective juror had stated theretofore that he would favor the state and, therefore, he was going to excuse him, adding that he, the trial judge, wished to point out how unreasonable it was for the panel member to let his personal experience in a holdup influence him in a case which involved no such aspect. Thereupon, the panel member was excused. Defendant in his motion for new trial contends that the court's remarks effectively prevented any prospective juror from thereafter stating his true feelings on the question of prejudice even though another panel member might have been the victim of a crime. Aside from the fact that the record does not show that any other panel member answered that he had been the victim of a crime, there was no objection to the court's statement at the time and thus nothing has been preserved for our review. State v. Curtis, 324 Mo. 58, 23 S.W.2d 122, 125; State v. Keller, Mo., 344 S.W.2d 65, 67.

Assignments 3 and 4 charged the court with error in refusing to permit Ethel Sanders, a state's witness, to disclose on cross-examination, as defendant's offer of proof indicated she would, that she had a month prior to her testimony and some 4 1/2 months after the occurrence of the incident on trial, stabbed or cut her brother's arm. The reasons stated in support are: because her brother was a witness endorsed by the state and the jury was entitled to decide whether Ethel Sanders had stabbed her brother to prevent him from testifying; and because such testimony would show that Ethel Sanders 'was herself guilty of a crime and this would reflect on her character and veracity.' The record shows that Ethel Sanders testified that she lived in the same house as the Brookses and was sitting on the front step when she saw defendant stab her husband in the back as he faced the trunk of his automobile. On cross-examination, defendant's counsel elicited the fact that her brother went to the hospital because of a cut arm two days prior to the present trial. The question, how her brother received the cut on his arm, was objected to on the ground that it was immaterial. The trial court, after establishing that the arm injury had occurred about a month ago, sustained the objection and a like objection to the question as to who had stabbed the witness's brother. Out of the jury's hearing defendant's counsel offered to prove that the witness had stabbed her brother 'and this was all tied in together.' The court sustained the objection to the offer, pointed out that no conviction of the witness had been shown, and invited counsel to pursue the matter at a later time, which counsel failed to do. At the trial, defendant's counsel did not disclose directly to the court, and certainly there was no indication from the question asked or the offer of proof made, that he intended to show that the witness, Ethel Sanders, had stabbed her brother to make him unavailable as a witness at the present trial. As to defendant's further contention that Ethel's answer would have impeached her credibility by showing that she was guilty of a crime, we observe that defendant offered no record of the witness's conviction and made no offer to prove otherwise that the witness had committed a crime, and, under those circumstances, the witness could not be compelled to answer a question which might expose her to a criminal charge, even though the answer might have affected her credibility as a witness. The statement of the court in State v. Potts, 239 Mo. 403, 144 S.W. 495, 498, is apropos: 'The rule in this state, as to the scope allowed in the cross-examination of a witness, is that 'he may be compelled to answer any such question, however irrelevant it may be to the facts in issue, and however disgraceful the answer may be to himself, except when the answer might expose him to a criminal charge.' State v. Long, 201 Mo. , loc. cit. 675, 100 S.W. 590, and cases cited. There is this limitation to the rule that, while such questions may be asked, it is largely within the discretion of the trial court as to the extent to which such cross-examination will be permitted.'

Defendant's assignment 5 charges that the trial court erred in permitting a witness who had not been endorsed upon the information to identify a hospital record. There is no merit in that contention. There was no necessity to have endorsed a witness who appeared only for the purpose of identifying a public or hospital record. State v. Malone, Mo., 301 S.W.2d 750, 756 [11, 12].

Assignments 6 and 7 charged the trial court with error in refusing to permit a...