State v. Butler
| Citation | 309 S.W.2d 155 |
| Decision Date | 08 January 1958 |
| Docket Number | No. 7623,7623 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Hollis BUTLER, Defendant-Appellant. |
| Court | Court of Appeal of Missouri (US) |
Bradley & Noble, John H. Bradley, Kennett, for defendant-appellant.
Leon McAnally, Kennett, for plaintiff-respondent.
Defendant was convicted of stealing a two-bottom tractor breaking plow from the farm of one Hoyt McDaniel. The defendant (age twenty-two) and his brother Belvey owned, or at least occupied, a sixty-acre farm near what is called the Rives neighborhood. Late in the afternoon of a cold December day defendant got in a truck which belonged to his brother Belvey and went to Rives, where he was eventually joined by another young man named Martin. The two rode around awhile, then drove to the house of a youth, one Stinson, and picked him up. From there the trio went to the home of another young man named Sanford, who went along, thus making it a foursome. By that time it was after dark. Just when John Barleycorn joined the part is not clear, but he was riding with it at the time the plow was taken, and it appears that at least three of the four (including defendant, Butler) were drinking. McDaniel's plow lay beside a small shop some little distance from the road and somewhat removed from a tenant house on the place. The party, with defendant driving, drove up approximately opposite the shop, and Martin, Stinson, and Sanford disembarked. Defendant drove his truck up the road, turned around someplace, and returned in about ten minutes. In the meantime the three venturers had got the plow partly out to the road. To use the words of one of them, Hollis did come back and the four of them toted the plow the rest of the way to the truck and loaded it. From there they, with defendant at the wheel, drove the several miles back to the farm occupied by Belvey and Hollis Butler and there put the plow out.
Appellant's first stated assignment is the refusal of the court to permit defendant to make proof of defendant's hard rais'n'. Specifically the offer of proof was that defendant's father and mother separated before defendant was born; that defendant went to his father when he was four years old 'and they batched in the neighborhood with two older brothers until the death of his father some year or so ago.' To this assignment defendant cites no authority, and in his argument he admits he has none. He states that he included it in the brief only for the purpose of predicting what the law 'in the course of evolution' eventually will be, rather than saying what it is. Obviously the matters offered had nothing to do with the issues involved in the trial, and we do not feel called upon to cite authority, because we do not consider the assignment to be contention of a point upon which appellant urges or expects a ruling; nor can we here debate the merits of the English-American common-law system as opposed to the continental or Japanese criminal procedure.
In proceeding to appellant's real assignments, we first suggest that practically all of them are rendered ineffectual by the fact that defendant, on the stand, admitted that he helped steal the plow. He testified that, after the group had got together, it was suggested that they get the plow, and
* * *'
The defendant then testified as to driving away and returning, helping tote the plow to the truck, and taking the plow to the place occupied by him and his brother Belvey, where he said, 'We just kicked it out in the pasture.' The defendant said he was 'pretty drunk' on this occasion; however, it appears from his testimony that he was not so drunk that he could not remember what was said and done; nor was he too drunk to help load the plow and then drive the truck several miles to the place where they kicked the plow out in the pasture. There was no contention that the plow was bailed, borrowed, or taken by mistake, and since the defendant admitted on the stand that he helped steal the plow it would seem that errors in regard to admission of evidence, or in the giving of instructions, which affected the question of whether or not the act was done (as distinguished from justification, avoidance, or mitigation), would be harmless. State v. Owen, 78 Mo. 367; State v. McWilliams, 267 Mo. 437, 184 S.W. 96, 101; State v. Mitchell, 229 Mo. 683, 129 S.W. 917, 921; State v. James, 194 Mo. 268, 92 S.W. 679; State v. Dill, Mo., 282 S.W.2d 456(16); State v. Bray, Mo.App., 278 S.W.2d 49. Nevertheless, we will consider appellant's assignments separately.
One assignment is in regard to questions and statements as follows:
(a) The owner of the plow testified (in reference to dates):
'Judge Bradley: We object to the statement that it was stolen.
'The Court: Sustained.'
The witness had had his plow stolen. Defendant was being tried for stealing it. Later in the trial he admitted stealing it. It seems to us that the court leaned over backward to be considerate of defendant's feelings in refusing to let the witness use the word 'stolen.'
(b) The witness Martin testified that when the young men went to collect Sanford, the last member of the foursome, defendant and Stinson got out of the truck and told Sanford's wife they were going hunting. Martin remained sitting in the truck. Later it developed that the witness did not personally hear the 'going hunting' statement made.
'The Court: That portion of the testimony as to what was said between Sanford and his wife is stricken from the record and the jury is instructed to disregard it.'
Whether the defendant and his companion did, or did not, tell Sanford's wife that they were going hunting, instead of plowstealing, could not have been prejudicial to the defendant under the record in this case.
(c) Witness Martin, in testifying as to what was done with the plow, said, 'We took them to a little house on Belvey's place and dumped them out.'
'
'Judge Bradley: I object to that as leading.
'The Court: Sustained.'
The question could hardly be called leading. It repeated what the witness had just said and was consequently repetitious. But the reference was to the place where defendant himself said they took the plow.
(d) Defendant put on character witness Hockaday. On cross-examination the witness was asked what his business was, and he stated, 'I run a pool hall.'
'Judge Bradley: I object and move that be stricken.
'The Court: It may be stricken.
'Mr. McAnally: I think I have a right to show interest.
We think the inquiry of the prosecuting attorney was competent, not only to show interest but as bearing on the extent of the witness' knowledge. The defendant had placed the witness on the stand to prove reputation. To that extent he vouched for the witness as being qualified to judge reputation.
(e) A character witness for defendant was asked on cross-examination:
'The Court: Sustained and stricken.'
To shed further light on this inquiry: The defendant called several character witnesses who gave him a good reputation 'before these troubles come up.' One of defendant's character witnesses was more explicit.
'Q. You say before these troubles. What do you mean when you say 'these troubles'? A. What he got into here in the last couple of years, I would say.
We are of the opinion that the inquiry was competent to test the witness' knowledge and the value of his testimony. State v. Carson, Mo.App., 239 S.W.2d 532, 535-536; State v. Mitchell, 339 Mo. 228, 96 S.W.2d 341, and cases cited; Rogers v. St. Avit, Mo.App., 60 S.W.2d 698, 700. And obviously the extent of the knowledge of the witness who swears to a good reputation is not be to restricted to an inquiry as to convictions. Reputation can be made or lost by conduct irrespective of whether such conduct does or does not result in conviction. See State v. Casteel, Mo., 64 S.W.2d 286, 288; State v. Carroll, Mo., 188 S.W.2d 22, 23-24; State v. Gurnee, 309 Mo. 6, 274 S.W. 58, 60.
As to all the foregoing complaints it will be noted that in each instance the objection of the defendant was sustained, and when he moved for the answer to be stricken, or that the jury be instructed to disregard, the motion was sustained. He did not ask for reprimand or discharge of the jury. He got all he asked for and was apparently satisfied with it at the time. This is usually sufficient answer to claim of error. State v. Marlin, Mo., 177 S.W.2d 485; State v. Armstead, Mo., 283 S.W.2d 577, 583(13).
But defendant points to the line of cases which hold that a prosecuting attorney is a...
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