State v. Davis

• Citation: 225 S.W. 707,284 Mo. 695
• Parties: THE STATE v. SHERWOOD DAVIS, Appellant
• Decision Date: 01 December 1920
• Court: Missouri Supreme Court

225 S.W. 707

284 Mo. 695

THE STATE v. SHERWOOD DAVIS, Appellant

Supreme Court of Missouri, Second Division

December 1, 1920

Appeal from Pemiscot Circuit Court, -- Hon. Sterling H. McCarty Judge.

Reversed and remanded.

S. J Corbett and Ward & Reeves for appellant.

(1) The court erred in the admissibility of testimony. (a) The court erred in permitting the prosecuting attorney to ask and have answered questions calling for conclusions of the witnesses. State v. Wertz, 191 Mo. 569; State v Kozlictkie, 241 Mo. 301; State v. Bostwick, 245 Mo. 483; State v. Schlichter, 263 Mo. 561; State v. Evans, 267 Mo. 163; State v. Pate, 268 Mo. 431. (b) The court should have permitted State's wittnesses to be cross-examined as to the birth of the illegitimate child of Little's daughter. Muller v. Hospital, 73 Mo. 242; Muller v. Hospital, 5 Mo.App. 401; State v. Hack, 118 Mo. 92; Carp v. Ins. Co., 104 Mo.App. 520; Cantrill v. Davidson, 180 Mo.App. 420; State v. Long, 201 Mo. 675; State v. Potts, 239 Mo. 413. (2) The court erred in giving instruction 6, which did not properly declare the law, either for communicated or uncommunicated threats. In law and in this case we have to deal with two kinds of threats, communicated and uncommunicated threats -- both appearing in this case. In communicated threats the jury should be instructed to take the same in consideration in determining whether or not the defendant was justified in acting on appearances in killing deceased, and in explanation of the conduct of the parties at the time of the fatal difficulty. State v. Greaves, 243 Mo. 540; State v. Birks, 199 Mo. 276. Uncommunicated threats may be taken into consideration by the jury in determining who was the aggressor, and throwing light upon the actions and conduct of the deceased. State v. Edwards, 203 Mo. 546; State v. Birks, 199 Mo. 276; State v. Heath, 237 Mo. 264; State v. Nelson, 166 Mo. 202. This identical instruction has been held in judgment by this court to be erroneous. State v. Evans, 158 Mo. 607. (3) The court erred in refusing to rebuke attorney assisting the State. State v. Spivey, 191 Mo. 87; State v. Woodward, 191 Mo. 619. (a) It is error to permit the counsel to argue to the jury law not given by the court in written instructions. Dean v. Chandelor, 44 Mo.App. 338. (b) It is error for the state prosecutor to argue to the jury, and the court to sanction such argument, that a justice of the peace had a right to carry concealed weapons. There were no such written instructions, and besides, this is not the law. Sec. 4496, R. S. 1909; 40 Cyc. 865; State v. Julian, 25 Mo.App. 133; State v. Wisdom, 84 Mo. 177. (c) Deceased Little would not be entitled to carry concealed weapons in self-defense, because his life was threatened, since the amendment in 1909 of the statute, regulating carrying of concealed weapon. State v. Keet, 269 Mo. 206. (4) The court erred in many remarks and conduct. And in fining defendant's attorney $ 50 without the least sort of excuse in the presence of the jury, thereby showing partiality to the State, and ill-feeling against defendant. Drayfust v. Ry. Co., 124 Mo.App. 585; State v. Jones, 197 S.W. 158; Schmidt v. Railway, 149 Mo. 283; Rose v. Kansas City, 125 Mo.App. 236; Wright v. Richmond, 21 Mo.App. 76; State v. Hyde, 234 Mo. 255. While one remark or one statement of the court might not of itself be a reversible error, yet, when taken together, and when they indicate an attitude of mind on the part of the judge, calculated to influence the decision against the defendant, they may constitute a reversible error. State v. Drew, 213 S.W. 107; 38 Cyc. 1321; State v. Davis, 217 S.W. 91. The court committed a grievous error when, in the presence of the jury, without any justification or excuse, it fined defendant's counsel $ 50 for excepting to the remarks of the court, and which acts and conduct of the court were calculated to disparage counsel in the eyes of the jury, and to assume a manifestly hostile attitude towards the counsel of defendant, and creating in the mind of the jury that the defendant's counsel was seeking to take advantage of the witnesses and was transgressing the law, thereby prejudicing the minds of the jury against defendant's counsel and defendant. 38 Cyc. 1322; 21 Encyc. of Pl. & Pr., 1000; Walker v. Coleman, 55 Kan. 381; House v. State, 57 S.W. 825; Hine v. Ry. Co., 115 Mich. 204; Wheeler v. Wallace, 53 Mich. 355.

Frank W. McAllister, Attorney-General, George V. Berry, Assistant Attorney-General, for respondent.

(1) The questions of counsel for State did not call for an opinion or conclusion of the witness. If they had, an opinion would have been competent. State v. Evans, 267 Mo. 184; State v. Meyers, 198 Mo. 229; State v. David, 131 Mo. 395; State v. Buckler, 103 Mo. 206; State v. Parker, 96 Mo. 293; Heimbach v. Heimbach, 274 Mo. 316; Black's Law Dic. page 855; Crowell v. State, 56 Tex. Crim. 481; Henderson v. State, 49 Tex. Crim. 271; 16 C. J. 751. (2) Quincy Little Bilby having denied being the mother of an illegitimate child, defendant was bound by her answer. Such cross-examination is in the discretion of the trial court. State v. Potts, 239 Mo. 413; State v. Long, 201 Mo. 675; State v. Parker, 96 Mo. 390; Wendling v. Bowden, 252 Mo. 696; Miller v. Journal Company, 246 Mo. 724; Goins v. Moberly, 127 Mo. 118; 1 Greenleaf on Evidence, sec. 46lb. (3) Instruction 6 was a correct declaration of the law on communicated and uncommunicated threats. Defendant lodged no specific objection against it. State v. Greaves, 243 Mo. 551; State v. Birks, 199 Mo. 276; State v. Hale, 238 Mo. 511; State v. Heath, 237 Mo. 264; State v. Smith, 114 Mo. 419; State v. Hicks, 92 Mo. 436; State v. Fletcher, 190 S.W. 323; State v. Davis, 217 S.W. 87; State v. Katz, 266 Mo. 503; State v. Lewkowitz, 265 Mo. 636. (4) The court did not err in refusing to rebuke counsel for the State. He was not making an improper argument. State v. Baker, 246 Mo. 376; State v. Rasco, 239 Mo. 580; State v. Harvey, 214 Mo. 411; State v. Church, 199 Mo. 638; State v. Allen, 174 Mo. 698; State v. Gartrell, 171 Mo. 512; State v. Spivey, 191 Mo. 113; State v. Hibler, 149 Mo. 484; State v. Brooks, 92 Mo. 589. (a) A justice of the peace being a conservator of the peace, may carry a concealed weapon. Secs. 4496, 7382, 4972, 4686, 5285, R. S. 1909; Kelley's Crim. Law & Prac. secs. 59, 60, 1184; State v. Mosby, 81 Mo.App. 207; State v. Pollock, 49 Mo.App. 447; State v. McBrien, 265 Mo. 604; State v. Levy, 262 Mo. 190. (5) There was no misconduct on the part of the court. The fining of counsel did not prejudice defendant's case. State v. Fletcher, 190 S.W. 323; State v. Teeter, 239 Mo. 483; State v. Hyde, 234 Mo. 255; State v. Walton, 255 Mo. 244; State v. Miles, 199 Mo. 547; State v. Sublett, 191 Mo. 174; State v. May, 172 Mo. 646; State v. Dewitt, 152 Mo. 86; State v. Nickens, 122 Mo. 611; State v. Pagels, 92 Mo. 310; Copeland v. Ins. Co., 191 Mo.App. 445; Steptowski v. Transit Co., 108 Mo.App. 309.

WHITE, C. Railey and Mozley, CC., concur.

OPINION

WHITE, C. --

On a trial in the Circuit Court of Pemiscot County the defendant, Sherwood Davis, known as "Bill" Davis, was convicted of murder in the second degree and his punishment assessed at imprisonment in the penitentiary for a term of fifteen years. From that judgment he appealed.

This is the second appearance of this case. The defendant was convicted on a former trial and appealed to this court where the judgment was reversed; the case is reported in 217 S.W. 87. The facts are fully stated in the opinion rendered at that time. The evidence on the latter trial varied very little, substantially, from the evidence produced at the first trial; therefore it is unnecessary to state it except briefly.

The homicide occurred in April, 1918. The defendant was within the draft age, and H. P. Little, the man he killed, was justice of the peace. It appears from some of the testimony that the defendant had a wife and two children, and Little had been instrumental in getting his classification changed from fourth class to first class; there was ill-feeling between the defendant and Little on that account, and possibly on other accounts.

On the day of the homicide the defendant was arrested and brought by the constable before Little, where he had an altercation with the justice of the peace in regard to giving a bond. That was in the forenoon. Early in the afternoon of that day, while Little was standing on the street talking to a man named Lumley, the defendant approached with a knife in his hand demanding to know why Little and a man named Duffy, defendant's father-in-law, had tried to get defendant taken from his family and transferred from class four to class one, by the draft board. He advanced upon Little with his knife; Little drew a revolver from his pocket, and snapped it at the defendant who continued to advance; Little backed off, stumbled over a pole and fell. As he lay upon the ground, apparently stunned, the defendant came up to him, drew back his coat, and stabbed him in the breast with a knife, and made a stroke at his throat. He then took the pistol which had fallen from Little's hand and struck Little on the head with that. Lumley then tried to help Little to his feet; Davis assisted him and said: "Old man, I guess I have killed you; that is what I aimed to do." Several witnesses were in sight of the encounter, and with slight variations testified for the State to the same facts. The State also showed threats made on different occasions by the defendant against Little.

The defendant offered testimony tending to show that he approached Little in a good humor without any intention to assault him, that the first hostile demonstration was made by Little himself in drawing...