State v. Chaney

• Decision Date: 11 September 1961
• Docket Number: 48243,Nos. 48242,s. 48242
• Citation: 349 S.W.2d 238
• Parties: STATE of Missouri, Respondent, v. Lawrence F. CHANEY, Appellant. STATE of Missouri, Respondent, v. Herbert METCALF, Appellant.
• Court: Missouri Supreme Court

Page 238

349 S.W.2d 238

STATE of Missouri, Respondent, v. Lawrence F. CHANEY, Appellant.

STATE of Missouri, Respondent, v. Herbert METCALF, Appellant.

Nos. 48242, 48243.

Supreme Court of Missouri, En Banc.

Sept. 11, 1961.

Concurring Opinion Sept. 25, 1961.

W. Stanley Walch, St. Louis, for appellants. Thompson Mitchell Douglas & Neill, St. Louis, of counsel.

John M. Dalton, Atty. Gen., Jerry B. Buxton, and A. Moody Mansur, Asst. Attys. Gen., for respondent.

Thomas F. Eagleton, Atty. Gen., George W. Draper, II, Asst. Atty. Gen., for respondent on Supplemental brief.

HYDE, Chief Justice.

An opinion in this case, adopted in Division No. 1 but transferred to Banc, was not adopted in Banc. The facts from the Divisional opinion, hereinafter set out (without quotation marks), are adopted as a sufficient statement.

Lawrence Chaney and Herbert Metcalf were jointly charged with robbery in the first degree and each was also charged under the Habitual Criminal Act as amended in 1959, V.A.M.S. Sec. 556.280. The trial court found one or more of the previous convictions as to each defendant, a jury found defendants guilty of robbery as charged, and Chaney was sentenced to 10 years and Metcalf to 12 years in the penitentiary. Each appealed from the judgment of conviction and their appeals have been consolidated.

Defendants' sole contention is that the trial court erred in failing and refusing to give an instruction limiting the effect of impeaching evidence.

The state's evidence tended to show that about one o'clock in the afternoon of December 10, 1959, the prosecuting witness was at 3739 Windsor in St. Louis, attempting to collect for merchandise which he had formerly sold; that while in the lighted first floor hall he was accosted by defendants who knocked him to the floor and took from him a $15.03 check which the witness had theretofore cashed for his son, and $15 in cash; that defendants ran from the building and the witness pursued. A school crossing guard in the vicinity saw defendants as they ran and the guard, after talking with the prosecuting witness, furnished police a description of defendants who were arrested at 1:35 that same afternoon. When arrested Chaney had $21.88 and Metcalf $5.

Defendants' evidence tended to support an alibi defense and, in connection therewith, defendants adduced evidence tending to explain their possession of the respective amounts of money found on their persons. Defendants' witness, Marceline Robinson, testified that for some time prior to December 10, 1959, she had been the 'girl friend' of defendant Chaney; that during the morning of the tenth Chaney was at her home; that they quarreled and had decided to 'break up'; that Chaney wanted her to return part of the money that he had theretofore given her and that as a result of that request she gave him $40. It was the witness's opinion that defendant Chaney would have had some of that money left at the time she last saw him about 12:30 in the afternoon of the tenth.

Cross-examination developed these admissions and matters: The day of the alleged robbery and subsequent to defendants' arrest, Marceline had gone to the police station where she told two detectives that Chaney had beaten and robbed her about 10:30 that morning, or that 'They [the detectives] put it that way; they said that's the way it was. * * * I told them what happened and they said it was robbery, is what they said'; that she told the detectives that she was with defendant Chaney when he purchased a shotgun that same day; that the detectives took her to the city hospital because she had received a blow on the head from Chaney; and that she told the police she was afraid to report the matter until Chaney had been arrested.

The foregoing cross-examination was admitted by the trial court for the stated reason that it went to the credibility of the witness. The state correctly concedes on this appeal that the witness's testimony on cross-examination was admissible only for the purpose of impeaching her and was not admissible as substantive evidence against either defendant of the crime charged in the information. We think it needs no demonstration that, at least, most of the testimony developed on cross-examination was admissible to impeach the witness, and that it also need not be demonstrated that such testimony was highly prejudicial to defendants.

Defendants offered and the court refused to give instruction C by which defendants sought to limit the purposes for which Marceline Robinson's testimony with respect to Chaney's purchase of a shotgun and concerning the alleged charges which she placed against Chaney on December 10 was to be considered by the jury. That instruction was:

'The Court instructs the jury with respect to the testimony concerning the purchase of a shot gun by Lawrence Chaney on the morning of December 10th, and concerning the alleged charges which the witness Marceline Robinson placed against the defendant Lawrence Chaney on December 10, 1959, that this testimony was admitted only for the purposes of the credibility of the witness in question and does not bear upon the guilt or innocence of either of these defendants. In other words, this testimony was admitted merely to determine whether the witness, Marceline Robinson, was telling the truth and could be believed upon the other matters to which she testified, and it is not to be used by you nor considered in any way in making your determination as to the guilt or innocence of these defendants or either of them. This testimony is irrelevant and immaterial to the issue of whether these two defendants, Lawrence Chaney and Herbert Metcalf, robbed David Chaskelson at 3937 Windsor Place, and may only be considered by you in connection with the weight you give the testimony of Marceline Robinson.'

The state agrees that the testimony of Marceline Robinson could only be elicited to impeach her and says that is all it sought to do by this cross-examination. However, the state says she 'was called by defendant Chaney to play a vital part in his alibi defense, that he received the money in his possession from her, not by robbing Chaskelson, and by such an instruction he would have limited any consideration of her testimony for even this purpose'; but we do not see how the state could complain about that. The state also says that by stating in the instruction that her testimony was 'irrelevant and immaterial' as to whether defendants committed the robbery, they 'are in fact saying, we called her to testify but she did not prove a favorable element of our defense, so why not totally exclude any consideration of her testimony.' This also would seem to be harmful to defendant rather than to the state. However, the instruction was repetitious (saying substantially the same thing three times) and the language of the last clause of the second sentence was too broad (in using the phrase 'in any way') so that the court was justified in refusing it as offered. Nevertheless we should observe that it was necessary and not improper, as the state contends, for the instruction to specifically identify the particular testimony by the particular witness which was to be considered only for the limited purpose stated in the instruction.

The question for decision is: What is the duty of the trial court in a criminal case when the defendant offers an erroneous instruction?

Sec. 546.070(4), now Rule 26.02, V.A.M.R., requires the court to instruct the jury 'upon all questions of law arising in the case which are necessary for their information in giving their verdict.' (Statutory references are to RSMo and V.A.M.S. unless otherwise noted.) This statute came into out law in 1879 as Sec. 1908. It was amended in 1889 (Sec. 4208 RS 1889) to make failure to so instruct good cause for granting a new trial; and in 1895 (Laws 1895, p. 161) to include 'the subjects of good character and reasonable doubt' in its requirements. It was amended again in 1901 (Laws 1901, p. 140) to add the phrase 'whether requested or not.' As to the effect of this, we said in State v. Foster, 355 Mo. 577, 197 S.W.2d 313, 317: 'Our statutes divide the instructions in a criminal case into two general classes. The first includes those which Sec. 4070(4) mandatorily requires the court to give whether requested or not, 'upon all questions of law arising in the case which are necessary for their (the jury's) information in giving their verdict; which instructions shall include, whenever necessary, the subjects of good character and reasonable doubt.' [Statutory references in the Foster case were to RS 1939.] It is held these instructions must cover "all the essential elements of an offense embraced within the charge," or, as put another way, they must declare the law "applicable to every crime, or grade of crime, of which, under the evidence, the jury might convict the accused." Instructions not belonging in that class, such as instructions on evidence and procedure, are called 'collateral,' and fall in the second class. As to them, Sec. 4083 provides 'the court may instruct the jury in writing on any point of law arising in the cause.' But the defendant must request or tender instructions of that class, save exceptions and preserve the point in his motion for new trial.' See also State v. Starr, 244 Mo. 161, 182, 148 S.W. 862, construing these statutes.

'Collateral' means 'collateral to the main issue,' State v. English, 308 Mo. 695, 274 S.W. 470, 474. 'We have said that the law of the case comprehends the elements of the offense charged as shown by the evidence. State v. Conrad, 14 S.W.2d 608; State v. Decker, 14 S.W.2d 617. All other matters are collateral.' State v. Headley, Mo.Sup., 18 S.W.2d 37, 39; see also State v. Rowe, 324 Mo. 863, 24 S.W.2d 1032, 1038; State v. Miller, Mo.Sup., 292 S.W. 440, 442. In State v. Conway, 241 Mo. 271, 287, 145 S.W. 441, it was said our 1879 statute [now Sec. 546.070(4)] was taken almost verbatim from...