State v. Buechler
| Decision Date | 10 February 1891 |
| Parties | The State v. Buchler, Appellant |
| Court | Missouri Supreme Court |
Appeal from Clark Circuit Court. -- Hon. B. E. Turner, Judge.
Reversed and remanded.
W. L Berkheimer and J. W. Howard for appellant.
(1) The court erred in allowing the attorney for the state to ask the prosecuting witness as to expression of defendant's countenance. Wharton's Crim. Law, sec. 457; Gassenheimer v. State, 52 Ala. 314; Ames v Snyder, 69 Ill. 376; Ashland v. Marlboro, 99 Mass. 41; Russell v. State, 53 Miss. 367; Hawkins v. State, 25 Ga. 207; McAdory v State, 59 Ala. 92. (2) The court ought not to have allowed the state to introduce the coat in evidence in rebuttal. Wharton Crim. Ev., sec. 767; Commonwealth v. Twitchell, 1 Brevort, 561; Cristal v. Craig, 80 Mo. 367; Tierney v. Spiva, 76 Mo. 279; Babcock v. Babcock, 46 Mo. 243; Reed v. Railroad, 60 Mo. 199. (3) The court erred in instructing the jury that they mightfind the defendant guilty of an offense under Revised Statutes, 1879, section 1263. State v. Wilson, 86 Mo. 520; State v. Green, 66 Mo. 631; State v. Degonia, 69 Mo. 485; State v. Gerber, 80 Mo. 94. (4) The court erred in the instruction as to the credibility of the witnesses. State v. Mix, 15 Mo. 153; State v. Brown, 64 Mo. 367; State v. Elkins, 63 Mo. 159; State v. Stout, 31 Mo. 406; State v. Cushing, 29 Mo. 215.
John M. Wood, Attorney General, and T. L. Montgomery, for the State.
(1) The evidence that defendant showed from the expression of his face that he was angry was properly admitted. State v. Ramsey, 82 Mo. 133; State v. Parker, 96 Mo. 382. Even had this evidence been improperly admitted, it did not prejudice the substantial rights of defendant on the merits, and would not justify a reversal of the case. State v. Owens, 78 Mo. 367; State v. Grate, 68 Mo. 22; State v. Holme, 54 Mo. 160. (2) The coat the prosecutor had on at the time of the difficulty was admissible in evidence. Whar. Crim. Ev., sec. 767; State v. Wieners, 66 Mo. 13. It will be observed that the prosecutor testifies that the coat was "just as he pulled it off." Nor was there error committed in allowing this evidence to be offered in rebuttal. The order in which testimony shall be given to the jury is in the discretion of the court. State v. Daubert, 42 Mo. 239; State v. Linney, 52 Mo. 40. (4) No objection was made by defendant to the introduction of evidence in regard to the character of Dr. Leach. (5) Conviction may be had of a less offense, which is necessarily included therein. R. S. 1879, sec. 1655; State v. Burk, 89 Mo. 635; State v. Forsythe, 89 Mo. 667.
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 nine o'clock in the morning, he met defendant also in a buggy in the road, where it passed through a strip of timber. 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, 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 the 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.
I. The prosecuting witness was asked the following question: Another witness was asked substantially just 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 examination of the object, but he testifies about a subject, upon which common experience and knowledge have 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, for 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. 728; Whart. Crim. Ev., sec. 460; People v. Lilly, 38 Mich. 270; Whart. Crim. Ev., sec. 751; State v. Hopkirk, 84 Mo. 278.
II. 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 evidence was introduced, and we must presume it was inadvertently omitted in chief. State v. Daubert, 42 Mo. 239; State v. Linney, 52 Mo. 40. Evidence having been offered that the coat was in the same condition, when exhibited to the jury, that it was when taken off after the shooting, there was no error in admitting it in evidence. Whart, Crim. Ev., sec. 767; State v. Wieners, 66 Mo. 13. Such evidence, showing, as it may, the direction of the ball, might have great weight in determining the respective positions of the parties to each other, and their attitudes when the shot was fired.
III. Evidence was offered by defendant to prove that the prosecuting witness, Leach, had previously made statements which were contradictory to his evidence on the trial. In rebuttal, the state called witnesses who testified in support of his general reputation for truth. The action of the court in allowing this supporting evidence is assigned as error. An examination of the record shows that no objection to this evidence was made and no exceptions saved. It is not, therefore, properly before us, and cannot be considered.
IV. Defendant complains of the action of the court, in giving an instruction authorizing a verdict for an assault, as defined in section 1263, Revised Statutes, 1879. It is rather a strange objection, coming from defendant, inasmuch as said section defines a lower grade of crime and pronounces a lighter punishment than the section under which he was indicted. The wisdom of the law, in allowing juries to scale down the punishment in this class of cases, is manifest from this contention. We are of the opinion the evidence justified...
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