State v. Butler
| Decision Date | 10 March 1958 |
| Docket Number | No. 46433,No. 2,46433,2 |
| Citation | 310 S.W.2d 952 |
| Parties | STATE of Missouri, Respondent, v. Hollis BUTLER, Appellant |
| Court | Missouri Supreme Court |
Bradley & Noble, Kennett, for appellant.
John M. Dalton, Atty. Gen., Russell S. Noblet, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant, Hollis Butler, on May 1, 1957, was convicted by a jury in Dunklin County in the circuit court of breaking out of the county jail and escaping, a graded felony under Section 557.380 RSMo 1949, V.A.M.S., and his punishment was assessed at six months in the county jail. He appealed to this court.
The information in substance charged that defendant on March 12, 1956, in Dunklin County, Missouri, while lawfully confined in the county jail upon conviction for the crime of petit larceny, singly and in joint concert, did wilfully, unlawfully and feloniously break such prison, and escape therefrom by cutting, sawing, and forcing a hole through the iron bars and doors of said jail against the peace and dignity of the state.
At the trial the Clerk of the Magistrate Court of Dunklin County appeared and produced the record of that court which showed that on November 23, 1955, the defendant entered his plea of guilty to the charge of petit larceny; and was assessed a fine of $5 and three months' confinement in the county jail, and was granted parole on the jail sentence, conditioned on good behavior. This record also showed that on January 9, 1956, his parole was revoked and that he was again committed to the jail. The Sheriff of Dunklin County testified that defendant was placed in jail on January 7, 1956, where he remained until March 12, 1956. On that date there was a jail break and defendant was one of eight men who escaped. As expressed by the witness: 'There were several bars cut from the door on the north side of the jail, and the prisoners escaped through this hole that was made by cutting the bars.'
Four days later defendant was located in hiding in a nearby county, arrested for escaping jail and taken back into custody.
Defendant testified in his own behalf. He was asked by his counsel:
'Q. Now, Hollis, were you in jail in Dunklin County on the night of March 12, 1956? A. Yes, sir.
'Q. Did you have anything to do with breaking the jail, doing any of the breaking at all? A. No, sir.
'Q. And did you go out when the others did? A. No, sir.
'Q. Except one other, who was that? A. Robert Hickman.
'Q. Robert Hickman. And did you and Robert go out when the other prisoners went out? A. No, sir.
'Q. How long did you stay in there after they went out? A. Oh, it was 20 minutes.
'Q. And how come you to go out, what happened to you to cause you to go out, you decided at the beginning not to, hadn't you? A. Yes, sir.
'Q. How come you to go out? A. Well, he kept saying if I would go he would go.
'Q. That was Hickman? A. Yes, sir.
'Q. And what did you finally decide to do? A. Well, I finally decided to go with him.
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On cross-examination defendant testified that the reason he was in jail at the time of the escape was that he had a 90-day suspended sentence and that he 'broke the sentence' and they put him back in. He was also asked if he had ever been convicted of a criminal offense, to which he replied, 'I have been convicted of petit larceny.'
On redirect examination by his attorney he testified that one of the mentioned convictions for petit larceny is on appeal. Several witnesses for defendant testified as to his reputation. Their testimony varied as to how long they had known defendant, how well they had known him, and what they knew of his reputation.
On this appeal defendant's counsel briefed eight points, several of which are so related that we discuss them together. The first concerns the charge that the trial court erred in giving over defendant's objection Instruction No. 4, a credibility of witness instruction which reads as follows:
'If, upon a consideration of all the evidence, you conclude that any witness has wilfully sworn falsely as to any material matter involved in the trial, you may reject or treat as untrue the whole or any part of such witness' testimony.
"Wilfully' means intentionally, not accidentally.'
Defendant refers directly to the first paragraph of the instruction and claims that the trial court erred in giving the instruction because nothing occurred in the conduct of any witness to justify such instruction. It was cautionary in nature and given in the exercise of the discretion of the trial judge. The first paragraph states only accepted fundamentals inherent in the evaluation of testimony. It merely directs the jury's attention to what their common sense would otherwise tell them. We find nothing improper, misleading or prejudicial in the giving of this portion of the instruction.
Paragraph two, the so-called, 'falsus in uno, falsus in omnibus' portion, is based on the established rule that if the jury members believe a witness has committed perjury in the case on trial by wilfully swearing falsely to a material fact, they may for that reason alone reject the remainder of his testimony if they do not otherwise believe it to be truthful. Such fact furnishes them a valid reason for disbelieving everything else the witness may have said. They are not required to refuse to believe it but may do so. State v. Willard, 346 Mo. 773, 142 S.W.2d 1046, 1052; State v. Abbott, Mo.Sup., 245 S.W.2d 876, 881. Instructions of the type represented by paragraph two are generally of little, if any, assistance to juries, and are subject to the criticism that they may be misunderstood, or misapplied. In the past our appellate courts have looked upon them with disfavor, although as yet this alone has not resulted in a reversal of the particular case. See discussion, 4 A.L.R.2d 1078; 90 A.L.R. 74. This type of instruction (paragraph two) should not be given unless there is some basis for it, and even where there is such basis, the giving or refusal of the instruction is a matter of discretion of the trial court. It has been held that there is no basis for the instruction "unless it is quite evidence that material contradictory testimony has been given' * * * or there is something in the case indicating a wilful effort to misrepresent or suppress a material fact' or other valid reason to believe that perjury has been committed. Farmers' State Bank v. Miller, Mo.App., 26 S.W.2d 863, 865, and cases cited. See also, State v. Douglas, 312 Mo. 373, 278 S.W. 1016, 1027. In the case before us there is evidence which the trial judge properly may have believed indicated that there was an effort by defendant intentionally to misrepresent or suppress a material fact. Defendant testified, and his counsel argued to the jury, that although the defendant was present during the entire time he did not participate in the sawing of the jail bars or in leaving as soon as they were sawed but rather remained aloof from the entire matter until 20 minutes later when a cell mate in effect dared him to leave the jail. He then 'walked out' of the jail. Although he remained away in hiding some four days he intended to return but was apprehended first. He did not know it was unlawful to escape as he did. The otherwise uncontroverted evidence was that the escape hole that must have been used by all the escaping prisoners was only about 12 by 14 inches in size. It is contrary to this evidence and to the physical facts established by it for defendant to have escaped other than by crawling through this hole rather than by just walking out without any physical impediment as he would have the jury and court believe. Further, it is somewhat incredible that defendant did not know or sense that his exit under the circumstances was or might be against the law. His expressed intent to return voluntarily is likewise subject to some doubt. With this conflicting and somewhat implausible, if not incredible, testimony before the trial court, it gave the objected to instruction. Without intending any encouragement to the future use of this type of cautionary instruction (paragraph two) we do not find that its having been given under the particular facts of this case resulted in prejudicial error. We overrule defendant's contention.
Defendant objected at the trial and in his motion for a new trial to Instruction No. 7 for the reason 'it omitted from the charge the information that the defendant broke jail by sawing and forcing a hole through the iron bars of the door of the jail.' In his brief he has changed his contention by asserting that it was error to give Instruction No. 7 because there was no evidence that defendant did 'either alone or with others break said county jail,' and because 'there was no evidence to support the submission that defendant broke jail.' The state correctly contends that his grounds in his brief for...
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