State v. Brotherton

• Decision Date: 08 March 1954
• Docket Number: No. 1,No. 43418,43418,1
• Citation: State v. Brotherton, 266 S.W.2d 712 (Mo. 1954)
• Parties: STATE v. BROTHERTON
• Court: Missouri Supreme Court

Page 712

266 S.W.2d 712

STATE v. BROTHERTON.

No. 43418.

Supreme Court of Missouri, Division No. 1.

March 8, 1954.

Rehearing Denied April 12, 1954.

R. P. Smith, Cape Girardeau, for appellant.

John M. Dalton, Atty. Gen., Donal D. Guffey, Asst. Atty. Gen., for respondent.

HYDE, Presiding Judge.

Defendant appeals from conviction for second degree murder and sentence of 15 years in the penitentiary. Defendant claims error in refusing to direct verdict for him, in rulings on evidence and instructions, in reprimanding him on the witness stand, and in refusing a new trial on the ground of newly discovered evidence.

Deceased, Ernest Bach, proprietor of Spring Lake Tavern, was shot and killed while standing behind the bar in his tavern in Bollinger County. The only persons on the premises at the time were defendant, who was employed by deceased as a caretaker or janitor, deceased's wife, Mrs. Mary Bach, and Gene Barks, a disabled war veteran, who had been at the tavern most of the day. The shooting occurred about 6:30 P. M. on Sunday, May 4, 1952. However, Mrs. Bach was not in the room where deceased was shot, and did not see the shooting. During the afternoon, there had been other people (estimated as about 25) at the tavern and the small artificial lake on the grounds but all of them had left. Barks testified that deceased and defendant 'quarreled around there a little bit' and deceased made defendant leave at the back door. Later he said defendant came back through the front door and deceased insisted that he go back to his cabin. (Defendant lived in a room in the second story of the pump house, 125 feet southeast of the tavern.) Barks said after defendant left, 'and was gone just a few minutes, he came back in with a gun in his hand.' He said it looked like a single barrel 12 gauge shotgun and that defendant fired when close to deceased without saying anything. Barks went out the back door to his car, parked at the northeast corner of the tavern, and drove to a nearby town to get help. As he did so he saw defendant in the driveway at the southeast corner with the gun in his hand, 'in a broke down position.' When the sheriff arrived later in the evening he found an expended 12 gauge shotgun shell near this corner of the tavern. The sheriff also took a loaded 12 gauge shell from defendant's pocket when he arrested him. The next day the sheriff found two other loaded shells at a place where defendant was observed to go on the night of the shooting.

Mrs. Bach testified that before the shooting she heard defendant demand his money (deceased was keeping about $40 for him) and deceased told him he would not give it to him then but would give it to him tomorrow. She said defendant said 'all right' and 'he run out the door.' After defendant left she insisted deceased give him his money and discharge him, but he said the old man was drinking (defendant was 69) and that he would take him to his son's tomorrow and give him his money then. She was on the stairway going upstairs when she heard the shot. After she came back and found deceased, defendant came in the front door and she asked him why he did it, but defendant said: 'I didn't hurt him. It was a tall boy with overalls on that has been hanging around here with a shotgun all day.' Defendant also told the officers, when they arrived, that after he heard the shot he saw a tall man, a stranger, going out the front door. Later that night he told them 'there was nothing to that particular story, that he hadn't seen any mysterious stranger running out the front door at all; he said he had made that up.' One witness who talked to defendant when he was in jail testified that defendant said to him: 'Gene Barks said I was the fellow who fired the shot' and said 'I don't think I did.'

Defendant in his own testimony denied that he shot deceased but said that he used a shotgun belonging to Bob Henson that afternoon to hunt some crows he heard in the woods back of the tavern. He said Henson gave him two shells for a drink of wine earlier in the afternoon. (Henson denied that he gave him any shells or got any wine, but he did leave his gun at the pump house.) Defendant said he did not get a shot at the crows but did shoot into a crow's nest and left the gun under the pump house steps. He said, while he was sitting on the porch of the tavern, he heard a shot inside. He admitted that Mrs. Bach accused him of the shooting when he went in, and that he told her about the tall man in overalls. He said he had seen such a tall man earlier and was excited and 'had that tall fellow on my mind.' He admitted that at that time 'there wasn't anybody there except Gene Barks' and said that he 'was addled up.' After first denying it, defendant also admitted an argument with deceased about his money and said 'he put me out just to quit talking to me.' Barks affirmatively answered a question on cross-examination to the effect that defendant held the gun at or near his right shoulder when he fired at deceased. Defendant testified that he always shot from the left shoulder. However, Barks said: 'I didn't have time to look at all of those details.' Five days after the shooting Henson's gun was found behind a shed 110 feet northeast of the tavern, concealed in a pile of leaves.

Defendant argues Barks' credibility, the improbability of his testimony, discrepancies as to the time element between the time defendant went out of the tavern after the argument with deceased and came back with the gun, the testimony as to the shoulder against which defendant held the gun, and the circumstances under which the gun was found. All of these were jury issues and, taking the view of the evidence most favorable to the State, as we must in deciding this question, it is obvious that the State made a submissible case.

Defendant alleges error in refusing to permit cross-examination of Barks concerning certain absences from his home claimed to have been due either to prolonged drunkenness, blackouts or amnesia, and also in refusing to permit questions to other witnesses about specific instances concerning these same matters, citing State v. Davis, 284 Mo. 695, 225 S.W. 707, 709; State v. Potts, 239 Mo. 403, 144 S.W. 495, 498; State v. Long, 201 Mo. 664, 675, 100 S.W. 587. These cases state the rule, 201 Mo. loc. cit. 675, 100 S.W. loc. cit. 590, that "When a witness is cross-examined he may, in addition to the questions hereinbefore referred to (concerning commission of a crime), be asked any questions which tend to test his accuracy, veracity, or credibility, or to shake his credit by injuring his character." However, in the Long case we also said: 'The better doctrine would seem to be that while such questions may be asked the witness on cross-examination it is a matter largely within the discretion of the court before whom the case is to be tried.' This statement was reaffirmed in the Potts case; see also State v. Murrell, Mo.Sup., 169 S.W.2d 409, 411; State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920, 924; State v. Walton, 255 Mo. 232, 164 S.W. 211. None of these cases are authority for asking other witnesses about remote specific collateral acts of the witness who was cross-examined. See State v. Hewitt, Mo.Sup., 259 S.W. 773, 782; 58 Am.Jur. 345, Secs. 624-625, p. 432, Secs. 783-784; 70 C.J. 638, Sec. 809, p. 764, Sec. 924, p. 804, Sec. 1010. Barks was a veteran of World War II, with 70% disability from a mine explosion in France. Defendant's cross-examination showed that he had been around the tavern, all of the day of the shooting, drinking beer 'off and on, not continuously.' (Defendant had testimony that Barks was intoxicated in the afternoon of the day of the shooting.) Barks was asked if he had been subject to blackout spells and answered 'no'. He was then asked if he had gone off on prolonged drinking spells in the last couple of years and been gone several days at a time. He answered: 'I went out for a day or two yes.' He was then asked about a specific instance concerning a disappearance when he was found at a cemetery. Objection was sustained and defendant made an offer of proof of two other similar incidents. We do not think we can say that the Court abused its discretion in limiting the cross-examination to the general questions and refusing to go into collateral specific incidents, remote from the day of the shooting of deceased. Therefore, these assignments are overruled.

Defendant also alleges error in the admission of certain exhibits offered by the State. These exhibits were Henson's shotgun, the expended shell found near the porch of the tavern, a loaded shell that was in the gun when it was found, the two loaded shells found near the tavern on the day after the shooting, a loaded shell taken from the gun in the afternoon of May 4, 1952 by a witness who said he hid the gun after he had seen defendant with it (he said he hid it because defendant was not 'at himself' but then told Henson where it was), a test shell and pellets from it fired by a ballistic expert, and enlarged photographs of the shells to show marks made by the firing pin, breech and ejector. Defendant's contention is that these exhibits were not connected with the crime nor with defendant, citing State v. Maddox, 339 Mo. 840, 98 S.W.2d 535; State v. Darling, 202 Mo. 150, 100 S.W. 631; State v. Swain, 68 Mo. 605. These cases did not involve exhibits and are not in point. Defendant's contention is without merit. See State v. Richetti, 342 Mo. 1015, 119 S.W.2d 330. Henson identified the gun at the trial and said he had left it at the pump house. Defendant admitted having had possession of Henson's gun and Barks said defendant used a gun of that type in shooting deceased. A ballistic expert from the State Highway Patrol showed the gun made the same marks as were on the expended shell found near the tavern porch the night of the shooting. Defendant himself, when the gun was brought to him at the jail the day it was found, said: ...