State v. Emma

• Citation: 26 S.W.2d 781,324 Mo. 1216
• Decision Date: 07 April 1930
• Docket Number: 30138
• Parties: The State v. Domonic Emma, alias Dominic Amma, Appellant
• Court: United States State Supreme Court of Missouri

26 S.W.2d 781

324 Mo. 1216

The State v. Domonic Emma, alias Dominic Amma, Appellant

No. 30138

Supreme Court of Missouri

April 7, 1930

Appeal from Circuit Court of City of St. Louis; Hon. Charles W Rutledge, Judge.

Affirmed.

A Canzoneri and William Baer for appellant.

(1) The court committed reversible error in refusing to give appellant's Instruction I. State v. Johnson, 234 S.W. 796; State v. Cantrell, 290 Mo. 232; State v. Shields, 296 Mo. 369; State v. Hayes, 247 S.W. 168; State v. Majors, 237 S.W. 488; People v. Rischo, 262 Ill. 596; 16 C. J. 971. (2) The court committed reversible error in permitting hearsay evidence to be introduced against appellant. State v. Cooper, 83 Mo. 701; Ferguson v. Fulton Iron Works, 259 S.W 811; State v. Carter, 259 Mo. 349; Wharton's Cr. Ev. (10 Ed.) sec. 483; Wharton on Evidence, sec. 555; State v. Davis, 29 Mo. 397; State v. Burgess, 259 Mo. 383; State v. Newcomb, 220 Mo. 54; State v. Sharp, 183 Mo. 715. (3) The court committed reversible error in excluding the evidence of Carl Laudicana as to the personal relations existing between appellant and deceased. State v. Punshon, 124 Mo. 448; State v. Liolios, 285 Mo. 1; State v. Neal, 300 S.W. 1073; State v. Long, 108 S.E. 288; 30 C. J. 178. (4) The court committed reversible error in refusing appellant's Instruction 4. State v. Walser, 1 S.W.2d 151; State v. Burlingame, 146 Mo. 207. (5) The court committed reversible error in excluding the evidence of Catherman as to the general reputation of appellant for peace and quiet. Cunningham v. Underwood, 116 F. 811; 40 Cyc. 2198. (6) The court committed reversible error in refusing appellant's Instruction 5. State v. Walser, 1 S.W.2d 151; State v. Grant, 152 Mo. 57.

Stratton Shartel, Attorney-General, and Don Purteet, Assistant Attorney-General, for respondent.

(1) The trial court committed no error in refusing appellant's requested instructions numbered 1, 4 and 5. There was no duty upon him to give requested instructions the substance of which had been fully covered in a previous instruction. The subject of reasonable doubt was amply covered by the court's Instruction 7. State v. Finley, 278 Mo. 474; State v. Dooms, 280 Mo. 84. Appellant's requested Instruction 4 seems to deal with the subject of circumstantial evidence in addition to the theory of reasonable doubt. The direct evidence of appellant's guilt was ample, hence an instruction on circumstantial evidence had no place in the case. State v. Stegner, 276 Mo. 427; State v. Emmons, 225 S.W. 894; State v. Hadlock, 289 S.W. 945. Appellant's requested Instruction 5 is nothing more than a rehash or repetition of the court's instruction on the presumption of innocence and the theory of reasonable doubt. It is couched in slightly different language; however, that is no reason for its use by the court, inasmuch as Instruction 7 given by the court on the same subject has received the sanction of this court since the mind of man runneth not to the contrary. (2) The trial court properly permitted the witness Kocher to testify what he had told Assistant Circuit Attorneys Maroney and Wilson and Police Officer Nally and Roach as to the length of his acquaintance with appellant, and there was no error in permitting Maroney, Wilson, Nally and Roach to testify what the witness Kocher had told them as to the length of his acquaintance with the appellant. Prior consistent statements of a witness are admissible to rebut or explain impeachment testimony showing prior inconsistent statements. State v. Hatfield, 72 Mo. 518; State v. Grant, 79 Mo. 113; State v. Whelehon, 102 Mo. 17; State v. Taylor, 134 Mo. 109; State v. Maggard, 250 Mo. 347; State v. Sharp, 183 Mo. 735; Steele v. Railway Co., 302 Mo. 221. (3) The trial court properly excluded the testimony of appellant's witnwess Catherman as to the general reputation of appellant for peace and quiet. The witness was not properly qualified to testify to appellant's general reputation for those characteristics inasmuch as he did not live in the same neighborhood with appellant and he was basing his answers upon information which he had obtained from appellant's co-workers, about six in number, a place altogether different from the neighborhood in which appellant lived. Manifestly, by all elementary rules of admission of evidence, this witness was not competent to testify. Furthermore, had the witness been competent there would have been no reversible error in excluding his testimony, inasmuch as other witnesses testified that the appellant's general reputation for peaceableness and quietness was good.

Henwood, C. Davis and Cooley, CC., concur.

OPINION

HENWOOD

An information was filed in the Circuit Court of the City of St. Louis by which the defendant was charged with murder in the first degree, one Bennie Amato being the victim of the alleged homicide. The jury found him guilty of murder in the first degree and assessed his punishment at imprisonment in the penitentiary "for his natural life." He was sentenced accordingly, and, in due course, has perfected an appeal to this court.

The following statement of the evidence offered by the State (with some alterations) is taken from the Attorney-General's brief:

"The homicide occurred in the city of St. Louis on the 15th day of November, 1927, between the hours of twelve and 12:15 o'clock noon. It was a dark, misty, clammy day. The scene of the fatal shooting is laid at or near the corner of High and O'Fallon Streets. O'Fallon Street is laid out in an easterly and westwardly direction, while High Street intersects it from the north and south directions. Twelfth Street parallels High Street a block east of High Street. The principals in the tragedy are Italians, Bennie Amato being the deceased.

"William H. Kocher testified: He was in the hauling business on the day of the tragedy. At about twelve or 12:15 o'clock noon, of that day, he was driving a truck west on O'Fallon Street, when about midway of the block between Twelfth and High Streets he observed three men standing on the northwest corner of the market square at High and O'Fallon Streets who appeared to him to be in some kind of deep conversation. As he drew near to the men, he saw two of them step from the curb and immediately thereafter heard shooting. Closer observation revealed that they were shooting at the stoutest of the three men, who was the deceased. The deceased had a closed umbrella in his hand and seemed to be waving it in an attempt to ward off the bullets of his assailants. The two men who were doing the shooting were out on the pavement about five feet west of the west curb of the northwest corner of O'Fallon and High Streets, and were about ten feet southeast of the deceased. He saw these two men level their guns and shoot the deceased, who started staggering across the curb into High Street, where he fell, got up, and staggered across to the opposite side of High Street and again fell, on the sidewalk in front of a door which led into a soft-drink parlor. The two men who had done the shooting stood in the street momentarily and then threw their guns at the body of deceased. At this time he had driven up to the corner of High and O'Fallon Streets. One of the men, who had thrown his gun at the body of deceased, passed directly in front of the truck which he was driving. It was necessary for him to stop the truck in order to prevent it from running over or hitting the man. He got a clear view of the face of this man, inasmuch as he stopped momentarily in front of the truck and looked directly at him at a distance of not more than four feet. The man was wearing an overcoat over a gray suit and had his hat in his hand. After he had thrown the gun at the body of the deceased, he started in a rapid walk east on O'Fallon Street, which ended in a run on Twelfth Street. He identified the defendant as the man who had fired shots at deceased and then threw his gun at the body; also as the man who, without a hat on, had gone past the front of his truck, looking directly at him for a couple of seconds, and then proceeded east on O'Fallon Street at a rapid walk which ended in a run south on Twelfth Street. The deceased, just prior to the fatal shooting, was not making any act of aggression or attempting in any manner to strike the men who shot him, nor did he see anything in his hands other than a closed umbrella, which deceased raised after the shooting commenced in an apparent attempt to ward off the bullets of his assailants. It appeared to him that deceased had turned his back and was in the act of leaving the presence of the two men just immediately before they began shooting. The first time he had seen defendant was about five years previously, having gotten acquainted with him, just casually, around the fruit auction located on Biddle Street; also at the fourteenth block on Thirteenth Street. The occasion for this acquaintance appears to have come about through purchasing, from time to time, some produce from a man who was driving a truck, which had painted on its side a name something like Charley "Garsche" or Charley "Garashia." Upon these occasions, defendant would be on the truck, apparently in the role of an assistant or helper to the man from whom he was purchasing the produce. These purchases would usually take place between six and seven o'clock, mornings. He would see the defendant as much as twice a week, and then perhaps a month or possibly six weeks would pass before he would again see him. These meetings were for a period of six or seven months, that is to say, some five years before he saw him at the scene of the fatal shooting.

"The cross-examination of the witness Kocher revealed that, on defendant's preliminary examination, the witness had testified that he had...