State v. Day

• Decision Date: 30 June 1936
• Citation: 95 S.W.2d 1183,339 Mo. 74
• Parties: The State v. William Day, Appellant
• Court: Missouri Supreme Court

95 S.W.2d 1183

339 Mo. 74

The State v. William Day, Appellant

Supreme Court of Missouri

June 30, 1936

Appeal from Scott Circuit Court; Hon. Frank Kelly, Judge.

Reversed and remanded.

Dearmont Spradling & Dalton for appellant.

(1) The court erred in refusing to permit the defendant to impeach witness Brunke and witness Little by independent evidence and by contradicting their statements as to interest, bias and prejudice against defendant. (a) A party who interrogates a witness on cross-examination as to bias and prejudice is not bound by his answer but may contradict him by other evidence since the matter is material and not collateral and a refusal to permit such contradiction is error. Where a witness claims to have no animus against the accused, the existence and real extent of his hostility and venom may be shown. Great latitude is generally committed in showing the influence working on a witness, including the relationship of a witness to the defendant. Facts which tend to discredit the witness or to lessen the value of his testimony are never irrelevant or immaterial. State v. Jones, 106 Mo 312; State v. Downs, 91 Mo. 25; State v. Mulhall, 199 Mo. 212; State v. Pruett, 144 Mo. 94; State v. Horton, 247 Mo. 664; Knapp v. Knapp, 183 S.W. 578; Bond v. Frisco Ry. Co., 288 S.W. 784; Jablonowski v. Mfg. Co., 279 S.W. 97; Rogers v. St. Avit, 60 S.W.2d 700; 70 C. J. 992, sec. 1198, p. 1011, sec. 1219; 70 C. J. 948, sec. 1149. (2) The instruction should have required the jury to find beyond a reasonable doubt that the defendant had actual knowledge that the property was stolen, at the time he received it, as distinguished from facts which would put a man of ordinary caution upon his inquiry. The instruction should have required the jury to find that defendant actually was caused to know such facts from the circumstances known to him at the time. The instruction as given relieved the jury from finding or inferring the ultimate fact, to-wit, that defendant did actually know, which fact was necessary for them to find before returning a verdict of guilty. State v. Ebbeller, 222 S.W. 397; State v. Fleischmann, 228 S.W. 461; State v. Weisman, 225 S.W. 950; State v. Ehrenberg, 234 S.W. 830.

Roy McKittrick, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.

(1) The court did not err on its ruling as to the impeachment of witness Brunke. Riner v. Riek, 57 S.W.2d 724; Barraclough v. Union Pacific, 52 S.W.2d 998; State v. Stegner, 207 S.W. 826; Hoagland v. Modern Woodman, 157 Mo.App. 15; State v. Gabriel, 256 S.W. 767; Wells v. Sullivan, 242 S.W. 180; 70 C. J. 995, sec. 1201. (2) The court did not err in permitting the prosecuting attorney to cross-examine appellant's character witnesses as to rumors touching appellant's reputation. Rogers v. St. Avit, 60 S.W.2d 700; State v. Gurnee, 274 S.W. 60. (3) There was substantial evidence of appellant's knowledge of the stolen character of the goods to take the case to the jury and to support the verdict. State v. Hicks, 64 S.W.2d 287; State v. Woodall, 300 S.W. 712; State v. Glazebrook, 242 S.W. 928.

OPINION

Tipton, P. J.

An information was filed in the Circuit Court of Cape Girardeau County, Missouri, charging the appellant with having knowingly received stolen property. On a change of venue, the cause was sent to the Circuit Court of Mississippi County. A trial in that county resulted in a verdict of guilty and the appellant was sentenced to two years' imprisonment in the State penitentiary.

On the night of February 23, 1935, the Vandeven Mercantile Company's store was burglarized by two negroes, David Lee Robinson and W. T. Cooper, who stole a quantity of cigarettes. There is no dispute concerning the burglary or that the cigarettes in question were stolen.

The next morning, which was Sunday, Robinson went to the appellant's store and there offered to sell the cigarettes for $ 50, which offer was accepted by the appellant. Later in the day Robinson and Cooper brought the cigarettes obtained in the burglary in a sack to the store of the appellant. At the time the negroes came in witness Brunke was in the store. They were suspicious of Brunke, but were informed by the appellant that he was all right. After an examination of the cigarettes the appellant told the negroes that all he would pay for the cigarettes was $ 40, which proposition the negroes accepted. Both of the negroes and Brunke testified that at the time the negroes came into the store the appellant asked if that was the "corn" to which they replied "yes" and he also told them if they ever had any more to come back. At the same time he told the negroes and Brunke to say nothing about the transaction.

The appellant began to sell the cigarettes for $ 1 per carton which was under the standard price charged for cigarettes. He told the officers who investigated the burglary of the Vandevens' store that he was selling the cigarettes at that price as an advertising proposition. He claimed he bought the cigarettes from a local wholesale house, but later changed his story and stated that this shipment of cigarettes was what was known as a drop-shipment and he was using it for the purpose of stimulating business. After the appellant's son had told the officers that the appellant purchased the cigarettes from the two negroes, the appellant admitted this to be true.

Brunke testified that immediately before the cigarettes were purchased the appellant told him that he had an opportunity to purchase some "hot" cigarettes and appellant asked Brunke advice on the matter. He also testified that he was present when the cigarettes were purchased; that the negroes came in the store through the rear or side door and that the other doors were locked.

The appellant took the stand and for his defense denied that he knew at the time he purchased the cigarettes that they were stolen. He admitted buying the cigarettes from the negroes and selling them at the reduced price. Other pertinent facts will be stated in the course of this opinion.

I. The appellant contends that the court erred in submitting the cause to the jury because there was insufficient evidence to show his knowledge that the cigarettes were stolen. It is not disputed that the goods were stolen. We are of the opinion that the evidence is sufficient to show that the appellant knew that the goods he purchased were stolen. Witness Brunke testified that immediately before the appellant purchased the goods he asked Brunke's opinion as to whether he should purchase some "hot" cigarettes. He bought the cigarettes from two negroes unknown to him on a Sunday morning at a price far below the wholesale price, and when questioned by the officers about the purchase, the appellant told three different stories as to how he came in possession of the goods. This is sufficient evidence to sustain the verdict of the jury. [State v. Woodall, 300 S.W. 712; State v. Hicks, 64 S.W.2d 287; State v. Spires, 65 S.W.2d 1057.]

II. The appellant assigns as error the refusal of the court to permit him to impeach the witness Brunke, by independent evidence to show his interest, bias and prejudice toward the appellant.

On cross-examination Brunke testified that he never had any bad feeling toward the appellant. He stated that he had been employed by appellant's sons-in-law who did not speak to the appellant but stated that he did not know whether he shared their feelings but that if he did he did not know it. He denied that he had been discharged by the appellant for refusing to help carry a piano upstairs. He denied that he had not spoken to the appellant between March and September, 1932. He did not remember whether or not he had told appellant's daughter that appellant was a dirty crook. He stated he did not remember whether he did or not; that he might and he might not. He admitted that the appellant came over to the filling station and took out a desk and chair from the station. When asked whether or not he called the appellant certain vile names and threatened to assault him if the appellant came into the station, he stated, "I don't know whether I said that or not, I don't remember; I don't believe I did." He did not recall whether or not he made the same statements to appellant's daughter, Mrs. Schwach. Witness denied that he had told appellant's son he had lied about appellant to keep himself out of trouble. He did not remember whether he had had a conversation with appellant's son or not. He did not recall whether or not he had advised appellant's son that he would get even with appellant. He denied that he had undertaken to get appellant's wife to leave him or had encouraged her to leave him. Witness denied that he had threatened to stamp the guts out of appellant if he undertook to move a toilet from the premises. He claimed he merely told appellant not to move it and made no threats. He denied any ill will toward appellant.

The appellant tried to show by witnesses, Hazel Wulfers, Mrs. Albert Schach, Laura Day and others that the witness had made statements that would show he was biased and prejudiced toward the appellant, but the trial court excluded this testimony on the ground that it was a collateral matter and the appellant was bound by the answers of the witness.

This was prejudicial error. A party who interrogates a witness on cross-examination as to bias and prejudice is not bound by his answer but may contradict him by other evidence. Where a witness claims he has no animus for the party to the litigation, the existence and real extent of his hostility and venom may be shown by independent evidence. Great latitude should be allowed to show the influence working on the witness including...