State v. Crouch

• Decision Date: 17 November 1936
• Citation: 98 S.W.2d 550,339 Mo. 847
• Parties: The State v. Virgil Crouch, Appellant
• Court: Missouri Supreme Court

98 S.W.2d 550

339 Mo. 847

The State v. Virgil Crouch, Appellant

Supreme Court of Missouri

November 17, 1936

Appeal from Stoddard Circuit Court; Hon. James V. Billings Judge.

Reversed and remanded.

J W. Farris and Langdon R. Jones for appellant.

(1) The court erred in permitting both the prosecuting attorney and the special prosecutor to make prejudicial argument and statements to the jury over the objections and exceptions of the appellant, and in failing to properly rebuke and reprimand counsel therefor. The learned trial court also erred in adding his own approval to the prejudicial and inflammatory remarks of the prosecuting attorney and the special prosecutor. (2) Counsel for appellant concedes that the general rule is that whether or not an attorney should be rebuked and reprimanded for improper argument, or whether argument is prejudicial or not when condemned by the court is usually a matter resting in the sound discretion of the trial court. Each case usually has to rest upon its own record and it is for the court to say whether that discretion was abused. But appellant earnestly insists that where the improper argument is not condemned but receives the sanction of the court that it constitutes reversible error. State v. Hayes, 19 S.W.2d 887; State v. O'Leary, 44 S.W.2d 52; State v. Mathis, 18 S.W.2d 10; State v. Connor, 252 S.W. 720; State v. Lenzer, 92 S.W.2d 896; State v. Nicholson, 78 S.W.2d 379; State v. Taylor, 8 S.W.2d 36. (3) The learned trial court erred in excluding material, competent and relevant evidence offered in behalf of the defendant. State v. Larkin, 250 Mo. 218, 157 S.W. 600, 46 L. R. A. (N. S.) 13; State v. Stallings, 64 S.W.2d 645.

Roy McKittrick, Attorney General, Wm. Orr Sawyers, Assistant Attorney General, and Max Wasserman for respondent.

(1) The court did not err in overruling instruction to acquit at the close of all the evidence, since the State's evidence made a prima facie case for the jury. State v. Whitman, 248 S.W. 938. (2) Appellant's statement made after the shooting was not admissible as part of the res gestae. State v. Burns, 278 Mo. 441, 213 S.W. 116; State v. Stallings, 64 S.W.2d 644. (3) Evidence of the fact of former difficulties between deceased and appellant, but not of the details of such difficulties, is admissible. State v. Birks, 199 Mo. 263, 97 S.W. 582.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

Charged by information with murder in the first degree, appellant, defendant below, was convicted of manslaughter for the killing of one Jacob Walker, sentenced to ten years' imprisonment in the penitentiary and has appealed. We shall refer to appellant as defendant and to Walker as the deceased. The killing is admitted. Defendant claimed that he killed in self-defense. There is no question as to the sufficiency of the evidence to support the verdict, hence a brief statement of the facts will suffice. The State's evidence tended to show the following:

About noon on November 4, 1934, some fifteen or more men were congregated in the railroad stockpen at the outskirts of the town or village of Grayridge. Some were playing cards, others were watching that game and defendant and deceased, with one or two others, were engaged in a crap game. A scuffle arose among those engaged in the crap game, in an effort to take from deceased a bottle of liquor he was supposed to have in his pocket. No one was hurt and apparently no ill will was engendered in that scuffle. Shortly thereafter there was another scuffle among those engaged in the crap game, the origin, cause and details of which are not clear, in which deceased hit defendant a severe blow on the head with a bottle. Defendant complained that he had got a "dirty deal" in being so struck, and showed to several the bruise on his face or head caused by the blow. Deceased protested that he was "only funning" and had not meant to hurt defendant. Defendant, however, appeared to be very angry. There is evidence to the effect that defendant told deceased in substance that he was not big enough to fight him (deceased was a larger and stronger man than defendant), but intimated that he could go home and get his gun and "play even" or something to that effect. Deceased finally told defendant to go and get his damn gun, adding, "I have mine." Defendant left the stockpen and soon returned, the State's witnesses estimating the time at fifteen to twenty minutes, the defendant saying it was in about ten minutes. He came into the stockpen, walked up to within ten or twelve feet of deceased and after the exchange of a few words with deceased shot the latter with a pistol, which he then drew from his pocket. Deceased died before he could be gotten to his home.

The State called most of those who were present at the time of the shooting. Their stories as told on the witness stand differ as to details but those who saw the shooting substantially agree that when deceased was shot he was "squatted down" by the board on which cards were being played and made no hostile demonstration toward defendant nor any movement with his hands as if to draw a weapon and that no weapon was found upon or about him. Several of them, however, said that he told defendant, before the latter left the stockpen, to go get his gun, that he (deceased) had his. Likewise the witnesses did not hear alike the few words that were spoken between defendant and deceased just before the former drew his pistol and shot the latter. One put it this way: Defendant said to deceased, "Jake, you remember what you said?" Deceased said, "Yes, I remember." Defendant said, "Did you mean it?" Deceased said, "Yes, I meant it." Another testified that defendant said to deceased, "I have got what I went to town after." Others attributed to the parties' language differing somewhat in words but not materially in effect so far as concerns the questions we have to decide. It was also shown that some three weeks previously deceased had made threats against defendant which had been communicated to the latter. Defendant, by numerous witnesses, proved that he bore a good reputation as a peaceable, law-abiding man, which was not contradicted by the State. There was also some evidence that deceased was reputed to be of a turbulent, violent disposition. Aside from said testimony relative to the reputation and character of the two men and some testimony as to the severity of the bruise on defendant's face resulting from the blow he had received, the only evidence offered by defendant was his own testimony, which tended to show that he shot in self-defense. As this testimony will have to be discussed in considering the court's rulings on objections made to the prosecuting attorney's argument to the jury we shall state it in more detail in that connection.

Defendant earnestly contends that the trial was characterized by such undue and unreasonable haste and arbitrariness on the part of the court as to amount to a denial of the fair and impartial trial to which every person charged with crime is entitled. Among other things it is complained that defendant was not allowed reasonable time in which to make his peremptory jury challenges; that about thirty minutes after the jury list, with the State's challenges indicated thereon, was handed to his counsel and they and he were in another room considering their challenges, the court, without notice to defendant or his counsel, and in the presence of the prospective jurors, ordered the defendant's bond forfeited and a capias issued for him; that on the morning of the second day of the trial, court having adjourned about ten o'clock the night before, to convene at eight o'clock in the morning, one of defendant's counsel was fined, in the presence of the jury, for being five minutes late in reaching the courtroom, although he explained that his watch did not accord with the courtroom clock; that when the State closed its case defendant's counsel were compelled to make their statement to the jury without being afforded reasonable opportunity to confer with their client and were also denied opportunity to confer with him before calling him as a witness so that they might determine, in view of the State's evidence, the proper scope of their examination in chief of the defendant. There are other things complained of in this connection. To some of these rulings and actions of the court no exceptions were saved, but to some of them exceptions were duly saved. Were it not for the fact that we think this case must be remanded on other grounds this contention of defendant would require a detailed statement of the facts shown by the record and would call for serious consideration by this court. In justice to the trial judge it should be said that his reason, as he indicated, for hurrying the trial was that he had "another murder case" (defendant complains of the use of that language in the presence of the jury), set for the day following that on which this trial began, in which many witnesses had been subpoenaed and therefore the court had to proceed as rapidly as possible with the instant trial. Promptness and dispatch by trial courts in the disposal of their business is proper and commendable and of course the court has and must be accorded a large discretion in such matters. But it is equally true and important that there should not be haste at the expense of justice, especially where life or liberty is at stake. We need not and do not decide whether or not there was in this case such undue haste as to amount to an abuse of discretion on the part of the trial court and the denial of a fair trial. These complaints will not probably arise on another trial.

We think this judgment must be reversed and the cause remanded because of statements made to...