State v. Buechler

• Decision Date: 10 February 1891
• Citation: 15 S.W. 331,103 Mo. 203
• Parties: STATE v. BUECHLER.
• Court: Missouri Supreme Court

15 S.W. 331

103 Mo. 203

STATE v. BUECHLER.

Supreme Court of Missouri, Division No. 2.

February 10, 1891.

ASSAULT TO KILL — EVIDENCE — CREDIBILITY OF WITNESS.

1. Where there is an irreconcilable conflict in the testimony, and the veracity of witnesses is impeached, and evidence of contradictory statements is offered, it is proper to instruct as to the credibility of witnesses, but it is error to charge that, "if any witness has made any willfully false statement, they may disregard the whole of said witness' testimony," without limiting it to "willfully false statements," made under oath of some fact material to the issue in the case. Distinguishing State v. Jones, 86 Mo. 623.

2. In a prosecution for assault with intent to kill, testimony that the expression on defendant's countenance was "anger, ferocity, vulgar hate," is not inadmissible, as being opinion evidence.

3. The order of the admission of evidence is largely within the discretion of the court, and, where the coat which the prosecuting witness wore at the time he received the wound is allowed to be introduced in evidence after the close of defendant's evidence, a judgment will not be reversed therefor in the absence of any showing that defendant was prejudiced.

4. An objection to the competency of evidence, not raised in the court below, cannot be considered on appeal.

5. An instruction authorizing a conviction of a lower grade of crime than that charged in the indictment is not prejudicial error, and will not avail the defendant.

Appeal from circuit court, Clark county; BENJAMIN E. TURNER, Judge.

Wm. L. Berkheimer and J. W. Howard, for appellant. The Attorney General and T. L. Montgomery, for respondent.

MACFARLANE, J.

Defendant was indicted for feloniously and of his malice aforethought assaulting one Albert D. Leach with a pistol, with intent to kill. Defendant admitted the shooting, but defended on the ground that he did so in self-defense. Upon a trial in the circuit court of Clark county defendant was found guilty, and sentenced to two years' imprisonment in the penitentiary. From the judgment he appeals to this court.

The evidence discloses that no one was present when the difficulty between defendant and Leach occurred. They were both practicing physicians, living, and practicing their profession, at Athens, in Clark county. Bad feeling had existed between them for a considerable time, and there was evidence offered of threats made prior to the difficulty. On the morning of June 1, 1887, Leach drove in a buggy into the country about eight miles, to see a patient; and on his return home about 9 o'clock in the morning he met defendant in the road, where it passed through a strip of timber, who was also in a buggy. This is as far as the testimony of these two witnesses agree. Leach, the prosecuting witness, testified that defendant stopped his buggy before he reached him; that defendant's buggy stood between two trees, giving barely room for his buggy to pass; that, as he drove past, defendant drew his pistol, and fired one shot, as he passed, another immediately after, and then turned his buggy, and fired a third shot after him; and that by one of these shots he was wounded in the arm. On the other side, defendant testified that when they met in the road they both stopped, and got into a controversy over old disputes; that Leach got out of his buggy, picked up a large club, and struck him one blow over the head and shoulder, and raised the club for a second blow, when he drew his pistol and fired three shots in rapid succession, inflicting a wound in the arm by one of them. A number of other witnesses were examined as to facts and circumstances corroborating and contradicting these witnesses. Evidence was introduced with a view of impeaching the general reputation of some of the witnesses for truth, and of showing that some of them had made at other times statements which were contradictory of their testimony. A great number of objections are urged to the proceedings upon which the judgment was obtained. Such of these as have any particular bearing will be considered in detail.

1. The prosecuting witness was asked the following question: "State what you discovered on defendant's countenance, if anything. Answer. The expression of his face was anger, ferocity, vulgar hate; the meanest look a mortal man's face could have." Another witness was asked substantially the same question as to defendant's appearance just after the affray, and his answer was that he appeared to be angry. These questions and answers were objected to on the ground that the questions called for and the answers gave merely an opinion of the witness. If the expressions of the countenance of one accused of crime could be seen by or reproduced before the jury exactly as it was at the time and immediately before and after the act there can be no doubt it would have great weight in determining the intent and purpose of the accused, and the motives by which he was actuated. Often it would be absolutely convincing. Such being its character, evidence of such expression would certainly be admissible. The general rule, it is true, is that a witness must testify to facts, and the jury draw its conclusions from these facts. There are, however, manifestations, expressions, and conditions which language — at least of ordinary persons — cannot reproduce. Of such matters a witness is allowed to give the impression produced upon himself. This impression may be very near to an opinion. Thus a witness is allowed to testify that an object is red, in order to distinguish it from other colors. This is nothing more than an impression produced upon his mind upon an examination of the object, but he testifies about a subject upon which common experience and knowledge has qualified him to speak. What facts could he state that would give the idea of red as the color of the object. Of the same character is the expression of the countenance. A person of ordinary understanding could not detail facts which would give to a jury the remotest idea of the passions expressed on the countenance, though a child one year old would distinguish anger from love in its mother's face. Witnesses are allowed to testify to their impressions or opinions on such matters far want of any other way to get the evidence before the jury; they admit of no more definite proof. State v. Ramsey, 82 Mo. 133; State v. Parker, 96 Mo. 382, 9 S. W. Rep. 728; Whart. Crim. Ev. § 460; People v. Lilly, 38 Mich. 270; Whart. Crim. Ev. § 751; State v. Hopkirk, 84 Mo. 278.

2. The state was permitted, over defendant's objections, after the close of defendant's evidence, to introduce the coat worn by Leach when he was wounded. The objection made by defendant was on the ground that the evidence was properly in chief, and could not be offered in rebuttal. The order in which evidence may be introduced is a matter of practice, largely within the discretion of the court. If matters properly in chief are introduced out of their order, the opposite party would have the right to offer evidence to rebut them. We can see no substantial rights of which defendant was deprived on account of the time and order in which the coat was introduced, and we must presume it was inadvertently omitted in chief....