State v. Collins

• Decision Date: 12 November 1942
• Docket Number: 38081
• Citation: 165 S.W.2d 647,350 Mo. 291
• Parties: State v. Rufus Collins, Appellant
• Court: Missouri Supreme Court

165 S.W.2d 647

350 Mo. 291

State v. Rufus Collins, Appellant

No. 38081

Supreme Court of Missouri

November 12, 1942

Appeal from Howell Circuit Court; Hon. Gordon P. Dorris Judge.

Reversed and remanded.

W D. Roberts and H. D. Green for appellant.

(1) Where a witness has made prior statements favorable to the prosecution and has been used as a witness for the State at a former trial, such witness was peculiarly available to the State as a witness so that, upon failure of the State to use him as a witness, an inference will arise that his testimony would have been unfavorable to the State. Re Warden, 146 S.W.2d 874; Winkler v. Pittsburgh Ry. Co., 321 Mo 27, 10 S.W.2d 649; McInnis v. St. Louis Southern, 108 S.W.2d 113; Porter v. Chicago R. Co., 28 S.W.2d 1035; Chavaries v. Ins. Co., 110 S.W.2d 790; Huskey v. Ins. Co., 94 S.W.2d 1075; Cooper v. Ins. Co., 94 S.W.2d 1070; Donet v. Ins. Co., 23 S.W.2d 1104. (2) If a party to such action is wrongfully deprived of such inference it is reversible error. McInnis v. St. Louis Southern, 108 S.W.2d 113; Cases under (1). (3) And the State could not be relieved of the unfavorable inference that could be drawn from such failure by suggesting to the defendant by argument to the jury that defendant could have called said witness. McInnis v. St. Louis Southern, supra; Hasenjaeger v. Railroad Co., 53 S.W.2d 1083.

Roy McKittrick, Attorney General, and John S. Phillips, Assistant Attorney General, for respondent.

(1) The court did not err in overruling appellant's objection to argument of prosecuting attorney with reference to appellant not using certain witnesses. State v. Kester, 201 S.W. 62; State v. Linders, 299 Mo. 671, 253 S.W. 716; State v. McCleave, 256 S.W. 814; State v. Watson, 1 S.W.2d 837; State v. Parker, 172 Mo. l. c. 204, 72 S.W. 650. (2) The court did not err in overruling appellant's objection to argument of prosecuting attorney relative to appellant's failure to use witnesses. State v. Kester, 201 S.W. 62; State v. Linders, 299 Mo. 671, 253 S.W. 716; State v. Watson, 1 S.W.2d 837; State v. Parker, 172 Mo. 204, 72 S.W. 650; State v. Pope, 338 Mo. 919, 92 S.W.2d 904. (3) The court did not err in refusing to sustain appellant's objection to prosecuting attorney's argument in which he asked why certain witnesses were not produced by appellant. State v. Watson, 1 S.W.2d 837; State v. Linders, 299 Mo. 671, 253 S.W. 716; State v. Kester, 201 S.W. 62.

Tipton, P. J. Ellison, J., concurs; Leedy, J., dubitante.

OPINION

TIPTON

The appellant was convicted in the circuit court of Howell County of operating an automobile while intoxicated, and his punishment was assessed at a fine of one dollar and costs. From judgment and sentence, the appellant has duly appealed.

This is the second trial of this case. In the first trial the jury was unable to agree upon a verdict. The principal assignment of error by the appellant was that the prosecuting attorney committed reversible error in his closing argument. This will require a brief review of some of the evidence.

Marshall Brooks testified that he was a constable of Cabool, in Texas County, Missouri, and on the day in question, Johnny Puckett came to him in Cabool and reported that appellant had passed him on the highway driving a pick-up truck and was intoxicated, weaving his truck from one side of the highway to the other. Brooks then got in Puckett's car and drove on No. 60 highway towards Willow Springs. They passed the appellant, and the witness stated that appellant was weaving his car from one side to the other of the highway, and, in his opinion, the appellant was intoxicated at that time. He further testified that they drove on to Willow Springs and that the appellant was arrested there. Brooks admitted that Puckett was in the witness court room, but Puckett was not used as a witness by the State, although he was endorsed as a witness on the information and was subpoenaed by the State. At the first trial, Puckett was used as a witness by the State.

In his closing argument, the prosecuting attorney stated: "Mr. Green [attorney for the appellant] referred to the fact that we did not put Johnny Puckett on the stand; well, I want to know why he didn't put him on the stand -- they had a right to put him on the stand if they wanted to do so." The appellant's objection to this argument was overruled. Obviously, this argument was in answer to the argument made by the appellant that since the State did not use Puckett as a witness, the jury had a right to infer that, if the State had used him as a witness, his testimony would have been adverse to the party calling him.

If Puckett was available to both parties, then neither party had a right to comment on the failure of the other party for not using him as a witness. "A party has no right to complain of the opposing party's failure to bring witnesses who are equally available to both parties." Rothschild v. Barck, 324 Mo. 1121, 26 S.W.2d 760, l. c. 763.

"Now the term 'available,' in the sense in which we are using it, does not mean merely available or accessible for the service of a subpoena, since any witness who can be found may be subpoenaed at the instance of either party to a cause. To the contrary, the question of whether a witness is 'available' to one or the other of the contending parties depends upon such matters as the one party's superior means of knowledge of the existence and identity of the witness, the nature of the testimony that the witness would be expected to give in the light of his previous statements or declarations, if any, about the facts of the case, and the relationship borne by the witness to a particular party as the same would reasonably be expected to affect his personal interest in the outcome of the litigation, and make it natural that he would be expected to testify in favor of the one party and against the other. In other words, a witness may be said to have been peculiarly 'available' to one party to an action, so that upon the party's failure to have produced him in court an inference will arise that his testimony would have been unfavorable, when, because of such party's opportunity for knowledge of or control over the witness, or the community of interest between the two, or the prior statements and the declarations of the witness, it would be reasonably probable that the witness would have been called to the trial to testify for such party except for the fact that it was either known or feared that his testimony on the stand would have been damaging rather than favorable." Chavaries v. National Life & Accident Ins. Co., 110 S.W.2d 790, l. c....