State v. Brown

• Decision Date: 09 January 1950
• Docket Number: No. 41191,No. 1,41191,1
• Citation: 227 S.W.2d 646,360 Mo. 104
• Parties: STATE v. BROWN
• Court: Missouri Supreme Court

Page 646

227 S.W.2d 646

360 Mo. 104

STATE v. BROWN.

No. 41191.

Supreme Court of Missouri, Division No. 1.

Jan. 9, 1950.

Motion for Rehearing or to Transfer to Court en Banc Denied

March 13, 1950.

Charles E. Rendlen, Rendlen, White & Rendlen, Hannibal, John R. Hughes, Macon, for appellant.

J. E. Taylor, Attorney General, W. Brady Duncan, Assistant Attorney General, for respondent.

DALTON, Judge.

Defendant has appealed from a judgment of conviction of murder in the second degree and a sentence of twelve years imprisonment in the State penitentiary.

The State's evidence tended to show that shortly before November 17, 1941 the defendant hired one Mark Hunolt and paid him $50 to help defendant's minor son Stanley Brown put Mrs. Dora Bachstein into a cistern. About midnight on November 17, 1941 Stanley Brown came to the Hunolt residence for him and the two proceeded to the Bachstein residence in Shelby county where Mrs. Bachstein, a 73 year old widow, lived alone on a farm. They entered her house and forcibly took her from her bed and carried her to an open cistern, where she was shoved in head first and left to drown. Her dead body was found about 8 a.m., November 18, 1941. Defendant was not present when the murder was committed. Evidence tending to show motive will be reviewed later.

Hunolt was apprehended in 1946 and, subsequently, made a statement implicating defendant and his son Stanley and their arrest followed. On the 25th day of August 1946, Hunolt entered a plea of guilty to having murdered Mrs. Dora Bachstein. Sentence was deferred and he testified for the State in this cause.

Defendant denied the charge against him and offered evidence tending to show that, at the time mentioned by Hunolt, he was not at the place where the alleged agreement was made and the consideration paid and, further, that his son Stanley Brown did not go to the Hunolt residence or the Bachstein farm on the night in question or assist Hunolt in the commission of the crime. Numerous assignments of error are presented on this appeal.

Appellant first points out that error is presumed to be harmful and will 'not be declared to be harmless unless it is so without question'; and that, if the testimony of an accomplice in a criminal case is inconsistent, improbable and without corroboration and if the record shows misconduct in the proceedings prejudicial to the defendant and error committed against him, or if 'the evidence is not sufficiently substantial to support the judgment of conviction,' it will work a reversal. No discussion of these abstract principles is required. The evidence was amply sufficient to support the verdict. State v. Koch, En Banc, 321 Mo. 352, 10 S.W.2d 928, 930; State v. Stogsdill, 324 Mo. 105, 23 S.W.2d 22, 27; State v. Pierson, 343 Mo. 841, 123 S.W.2d 149, 156.

Error is assigned on permitting Hunolt to testify without first determining his mental competency. No hearing was requested on this issue, but defendant objected to the introduction of his testimony on the ground of mental incompetency. It was shown to the court that, six years before, to wit, on February 3, 1942, Hunolt was duly adjudged by the Probate Court of Shelby county to be a habitual drunkard and incapable of managing his affairs. He was ordered delivered into the custody of the Superintendent of the State Hospital No. 1 at Fulton, Missouri, to be kept and confined for treatment until cured, discharged according to law, or until the further order of the court. Sec. 509, R.S. 1939, Mo.R.S.A. No further order was shown. The evidence does not show how long Hunolt remained in the hospital, but he subsequently returned to his farm home in Shelby county where he remained until 1944. He was, thereafter, employed in the Kaiser Shipyards in Portland, Oregon, and later in Idaho, Montana and St. Louis. As stated, after his arrest in 1946, he entered a plea of guilty to the charge of murder. The record of the examination and cross-examination of this witness shows an alert mind. The court did not err in permitting him to testify, because prima facie he was a competent witness. He had not been adjudged to be insane, or a person of unsound mind, nor had he been confined in any institution as such. Sec. 1895, R.S. 1939, Mo.R.S.A., and cases based thereon are not controlling. The facts shown were insufficient to establish mental incompetency as a witness. Darby v. Cabanne, 1 Mo.App. 126, 129; 70 C.J. 96, Sec. 124; Annotation 26 A.L.R. 1502; 58 Am.Jur. 91, Witnesses, Secs. 116 and 117; Bennett v. U.S., 8 Cir., 158 F.2d 412, 415.

Error is assigned (1) on the overruling of defendant's motion to require the prosecuting attorney to produce (for inspection, copying or photographing) two written statements duly sworn to by witness Hunolt, one obtained by the prosecuting attorney and one by the sheriff's office in cooperation with the State Highway Patrol; and (2) on the alleged suppression by the prosecuting attorney of facts capable of establishing the innocence of the accused. The motion alleged that the inspection, copying or photographing was 'necessary to defendant to prepare his case for trial'; and that defendant could not safely proceed to trial without such inspection. Defendant charged that a comparison of these statements would show Hunolt had 'made different statements of essential and material matters.' The motion stated conclusions and not facts and showed upon its face that it was a 'fishing expedition' seeking to discover something of benefit to defendant. No facts were stated to show any materiality of the statements to defendant's defense, since they were hearsay and inadmissible except by way of impeachment, if the witness should testify differently. What were considered 'essential and material matters' was not stated. The application for the inspection and the charge of suppression of evidence are both based wholly upon supposition, conjecture and surmise unsupported by any facts, as appellant in effect concedes by his argument that 'if there is nothing to conceal, why conceal it? If there is nothing to suppress why suppress it?' Such is the essence of appellant's position. The court did not err in overruling the motion. State ex rel. Page v. Terte, En Banc, 324 Mo. 925, 25 S.W.2d 459; State ex rel. Mo. Pac. R. Co. v. Hall, 325 Mo. 102, 27 S.W.2d 1027, 1028(3); State v. Fitzgerald, 130 Mo. 407, 424, 32 S.W. 1113, 1117; State v. Hancock, 340 Mo. 918, 104 S.W.2d 241, 246; State v. McDonald, 342 Mo. 998, 119 S.W.2d 286, 288; State v. Richetti, 342 Mo. 1015, 119 S.W.2d 330, 344. No suppression of evidence which would have tended to establish the innocence of the accused is shown by this record.

Error is assigned on the alleged erroneous restriction or denial of cross-examination of witness Hunolt. It is contended that the cross-examination was limited or denied in some twenty five instances and that part of Hunolt's testimony at the preliminary hearing, offered on the theory of impeachment and contradiction, was erroneously excluded. Defendant's motion for a new trial complained that the cross-examination of Hunolt was limited (1) as to the time, extent, continuity and duration of drunkenness and irresponsibility; (2) as to whether witness was rejected for army service because of mental incapacity, deficiency or irresponsibility; (3) as to knowledge of Stanley Brown being an honor student in the Clarence high school and subsequently attending a Teacher's College; (4) as to knowledge of the size, weight, height, age, strength and vigor of defendant, showing defendant more able to do for himself with greater security than by sending Hunolt; and (5) as to whether Hunolt had been asked and answered at the preliminary hearing, as follows: 'Q. When you picked her up how did you know it was Mrs. Dora Bachstein? A. I didn't know.' The other assignments need not be considered. Sec. 4125, R.S.1939, Mo.R.S.A.

The evidence alleged to have been offered and excluded under point 1, was 'that witness would testify he was a confirmed drunkard and because of such was incapable of managing his affairs.' Hunolt denied that he was a habitual drunkard prior to 1941, but admitted the adjudication in that year. He was fully cross-examined as to that matter and as to his continuous use of intoxicating liquors. Rejection for army service on the ground mentioned was offered as proof of incapacity and irresponsibility and not for impeachment. Knowing of Stanley Brown's being an honor student and attending college was offered apparently on the theory that such knowledge by Hunolt tended to impeach Hunolt's testimony. His knowledge of defendant was apparently on the same theory. Stanley Brown subsequently testified concerning his educational attainments and defendant was before the jury as a witness. The statement of Hunolt at the preliminary hearing was not in impeachment, since it was consistent with his testimony at the trial. He did not personally know Mrs. Bachstein. A careful examination of the record as to all assignments under this heading fails to disclose any error. No abuse of the court's discretion in limiting cross-examination is shown. State v. Stegner, 276 Mo. 427, 207 S.W. 826, 830; State v. May, 172 Mo. 630, 646, 72 S.W. 918.

Error is assigned on the court's refusal of Instruction 'B' which would have told the jury that they could infer that the testimony of any uncalled or unquestioned available witness, possessing knowledge of material facts or circumstances concerning a party's cause, 'would not sustain the contention of such party in this cause.' It is further said that, if the instruction is erroneous, the court erred in failing to give a correct one. Reference is made to specification 36 of the motion for a new trial wherein defendants stated that Hunolt's brother-in-law and sister were available witnesses and would or should have known whether Hunolt stayed at their house on the night Hunolt said he helped put Mrs. Bachstein in the...