State v. Burnett

• Court: Missouri Supreme Court
• Writing for the Court: Tipton, J.
• Citation: State v. Burnett, 206 S.W.2d 345, 357 Mo. 106 (Mo. 1947)
• Decision Date: 08 December 1947
• Docket Number: 40203
• Parties: State v. H. H. Burnett, Appellant

206 S.W.2d 345

357 Mo. 106

State v. H. H. Burnett, Appellant

No. 40203

Supreme Court of Missouri

December 8, 1947

Appeal from Mississippi Circuit Court; Hon. James C McDowell, Judge.

Reversed and remanded.

J M. Haw and Claude F. Cooper for appellant.

(1) The plea in abatement should have been sustained, because the defendant's constitutional rights have been violated to his great prejudice because, while the defendant was under arrest and investigation for the alleged offense of murder he was forced to testify in detail about the facts and circumstances connected therewith. Amend. 5, Constitution of the United States; Mo. Constitution, Art. II, Secs. 22, 23; United States v. Aaron Burr, 25 F. 38; 1 Burr's Trials 244; Counselman v. Hitchcock, 142 U.S. 547; Ex parte Eichel, 122 S.W. 743; Ex parte Gauss, 122 S.W. 741; Ex parte Arvin, 112 S.W.2d 113; Ex parte Naughton, 221 Mo. 398, 120 S.W. 53; State v. Conway, 348 Mo. 586, 154 S.W.2d 128. (2) He was not informed or advised of his rights before he was forced to testify. Same cases as above cited under (1). (3) At the inquest hearing he was placed under the rule, and was not even accorded the right to be face to face with the witnesses testifying. Same cases as above cited under (1). (4) He was forced to testify without an opportunity to employ counsel. Same cases as above cited under (1). (5) He was forced to disclose circumstances of the offense and furnish evidence, the source from which and by reason of which the information charging him with murder in the first degree was filed against him. Same cases as above cited under (1). State ex rel. v. Simmons Hdwe. Co., 109 Mo. 118; 1 Wharton on Evidence (3rd Ed.), sec. 536. (6) The evidence which he was forced to give without being advised of his rights, without knowledge of his rights, without the advice of counsel, was a clear violation of his constitutional rights at least, furnishing "a link in the chain of evidence which evidently brought about and was the cause of the prosecuting attorney filing the charge he did against him." Same cases as above cited under (1) and (5). State v. Blackburn, 201 S.W. 96. (7) The only way that a defendant's constitutional rights, under conditions and circumstances of this kind, can be safeguarded effectively is to quash or abate the indictment or information which charges them with an offense about which they have been compelled to testify. State v. Naughton, 221 Mo. 398; State v. Pearson, 270 S.W. 347; State v. Smith, 22 S.W. 455; State v. McDaniel, 80 S.W.2d 186; Cases cited above under (1). (8) The motion challenging the jurisdiction of the court, and asking that the defendant be discharged should have been sustained, for the reason that, no preliminary examination was accorded the defendant and same was not waived by him, and after he obtained counsel and the advice thereof, and before pleading in due and apt time, filed his plea in abatement and said motion. Sec. 3893, R.S. 1939; State v. Sassaman, 214 Mo. 695, 114 S.W. 590; State v. McKee, 212 Mo. 138, 110 S.W. 729; State v. McBride, 12 S.W.2d 46; State v. McKinley, 111 S.W.2d 115; State v. Casteel, 64 S.W.2d 286; State v. Waymore, 132 S.W.2d 979; State v. Conway, 348 Mo. 586, 154 S.W.2d 128; State v. Person, 270 S.W. 347; State v. Smith, 22 S.W. 455; State v. McDaniel, 80 S.W.2d 186. (9) The transcript of the testimony of the defendant, H. H. Burnett and Susie Burnett taken at the coroner's inquest was inadmissible, for the reason these witnesses were present in court. State v. Lloyd, 87 S.W.2d 418, 337 Mo. 990; State v. Gallina, 178 S.W.2d 433, 354 Mo. 557. (10) The court erred in permitting counsel for the state to read to the jury testimony from the transcript of the evidence taken before the coroner's jury. State v. Lloyd, 87 S.W.2d 418, 337 Mo. 990; State v. Gallina, 178 S.W.2d 433, 354 Mo. 557. (11) The court erred in admitting the transcript of the evidence of Albert Wilson, given at the former trial, for the reason that no proper foundation was laid for the admission of the testimony. State v. Lloyd, 87 S.W.2d 418, 337 Mo. 990; State v. Gallina, 178 S.W.2d 433, 354 Mo. 557. (12) The defendant would be justified in using sufficient force to repel an assault by the deceased, either upon his wife or son or himself, and, if necessary, had a right to shoot and kill the deceased. Sec. 3893, R.S. 1939; State v. Custer, 336 Mo. 514, 80 S.W.2d 176; State v. Dollarhide, 337 Mo. 962, 87 S.W.2d 156. (13) The deceased, although a peace officer, had no lawful authority to arrest Gene Burnett and in attempting to do so under the circumstances he became a trespasser. Under these circumstances, the defendant had a lawful right to eject the deceased, and if necessary to use force commensurate with the apparent necessity. Greaves v. Kansas City Junior Orpheum Co., 229 Mo.App. 663, 80 S.W.2d 228; Wehmeyer v. Mulvihill, 150 Mo.App. 197, 130 S.W. 681; State ex rel. Patterson v. Collins, 172 S.W.2d 284. (14) The defendant requested several instructions on material issues which were by the court refused. It is the duty of the court to instruct the jury on all material issues and an offered instruction erroneous as to form is a sufficient request for a correct instruction on the issue. State v. Matthews, 20 Mo. 55; State v. Jones, 61 Mo. 232; State v. McKenzie, 228 Mo. 385; State v. Jurnee, 309 Mo. 6; State v. Burnett, 188 S.W.2d 51.

J. E. Taylor, Attorney General, and Arvid Owsley, Assistant Attorney General, for respondent.

(1) The information is in proper form and follows the statute, and charges the defendant with murder in the first degree. The state waiving the charge of murder in the first degree the information authorizes a conviction of manslaughter. Secs. 4376, 4844, R.S. 1939; State v. Culbertson, 24 S.W.2d 980. (2) Appellant's Assignments of Error Nos. 2, 3, 4, 5, 47 and 48 are insufficiently preserved in the motion for new trial. Sec. 4125, R.S. 1939. (3) Appellant's Assignments of Error Nos. 20, 26, 28, 32, 33, 34, 35, 36, 38, 43, 44 and 45, being abandoned in the appellant's brief, are treated as waived. State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245. (4) There was sufficient evidence to support the verdict of manslaughter. State v. Nolan, 192 S.W.2d 1016; State v. Burnett, 188 S.W.2d 51. (5) The court did not err in refusing to sustain defendant's plea in abatement, filed in the Circuit Court of New Madrid County, Missouri. Sec. 4005, R.S. 1939; State v. Jamerson, 252 S.W. 682; Walker v. United States, 93 F. 383; State v. Tummons, 34 S.W.2d 122; State v. McBride, 12 S.W.2d 46. (6) The court did not err in refusing to sustain defendant's plea to the jurisdiction, in abatement and for release, filed in the Circuit Court of Mississippi County, Missouri, on October 17, 1945. Sec. 4005, R.S. 1939; State v. Jamerson, 252 S.W. 682; Walker v. United States, 93 F. 383; State v. Tummons, 34 S.W.2d 122; State v. McBride, 12 S.W.2d 46. (7) The court did not err in overruling defendant's objection to the calling of any panel of jurors and proceeding to trial of the defendant. Sec. 4005, R.S. 1939; State v. Jamerson, 252 S.W. 682; Walker v. United States, 93 F. 383; State v. Tummons, 34 S.W.2d 122; State v. McBride, 12 S.W.2d 46; State v. Bartley, 337 Mo. 229, 84 S.W.2d 637. (8) The court did not err in requiring a panel of twenty-four jurors. Sec. 4063, R.S. 1939; State v. Yowell, 331 Mo. 716, 55 S.W.2d 991; State v. Naylor, 328 Mo. 335, 40 S.W.2d 1079. (9) The court did not err in allowing the defendant and witnesses to be cross-examined as to what they testified to at the coroner's inquest. State v. Gatlin, 170 Mo. 354, 70 S.W. 885; Farrar v. Railroad, 249 Mo. 210, 155 S.W. 439; State v. Coats, 43 P.2d 772. (10) The court did not err in overruling defendant's motion to quash, suppress and strike from the record, and to instruct the jury to disregard the evidence admitted as testimony given at the coroner's inquest. State v. Gatlin, 170 Mo. 354, 70 S.W. 885; Farrar v. Railroad, 249 Mo. 210, 155 S.W. 439; State v. Coats, 42 P.2d 772. (11) The court did not err in admitting the testimony of Leo Hedgepath, Acting Coroner, with reference to the transcript of evidence at the coroner's inquest. State v. Bartley, 337 Mo. 229, 84 S.W.2d 637. (12) The court did not err in allowing cross-examination of the defendant. Sec. 4081, R.S. 1939; State v. Davit, 343 Mo. 1151, 125 S.W.2d 47; State v. Gatlin, 170 Mo. 354, 70 S.W. 885; Farrar v. Railroad, 249 Mo. 210, 155 S.W. 439; State v. Coats, 42 P.2d 772. (13) The court did not err in refusing defendant's requested Instructions Nos. 17, 19, 20, 21 and 22. Sec. 4379, R.S. 1939; State v. Howard, 352 Mo. 410, 177 S.W.2d 616.

OPINION

Tipton, J.

This is the second appeal in this case. An information was filed in the circuit court of New Madrid County, Missouri, charging appellant with murder in the first degree for having killed Hughey Kitchen on April 17, 1943. On change of venue the case was sent to the circuit court of Mississippi County and at the first trial the appellant was found guilty of murder in the second degree. That sentence was reversed and remanded by this court for the failure to give certain instructions. The case is reported in 354 Mo. 45, 188 S.W. 2d 51. At the second trial the appellant was found guilty of manslaughter and his punishment was fixed at seven years' imprisonment in the state penitentiary. From that sentence he has duly appealed to this court.

The appellant contends that the evidence is insufficient to support the verdict finding him guilty of manslaughter. The evidence at the second trial was substantially the same as that produced at the first trial. We will therefore very briefly outline the evidence most favorable to the state.

The deceased was killed in appellant's restaurant...