State v. Feltrop
| Decision Date | 13 February 1961 |
| Docket Number | No. 1,No. 48186,48186,1 |
| Parties | STATE of Missouri, Respondent, v. Floyd L. FELTROP, Appellant |
| Court | Missouri Supreme Court |
Hugh M. Atwell, Eldon, for appellant.
John M. Dalton, Atty. Gen., James C. Bullard, Sp. Asst. Atty. Gen., for respondent.
HOLMAN, Commissioner.
Defendant, Flord L. Feltrop, was charged with the murder (first degree) of Clifford William Cornett. The trial resulted in a verdict finding him guilty of manslaughter and his punishment was fixed at a fine of $500 and imprisonment in the county jail for a period of one year. Defendant has appealed from the ensuing judgment. Since no brief has been filed by defendant in this court we will consider the assignments properly made in his motion for new trial.
Defendant has questioned the sufficiency of the evidence to support the verdict. A brief statement of the facts will demonstrate that there is no merit in that contention.
There was evidence indicating that there had been bad feeling between defendant and Cornett for some time prior to the date of the homicide. Each had made threats against the other. At about 10 p. m. on June 18, 1959, defendant shot Cornett twice with a .45 caliber Colt automatic and as a result thereof decedent died a few minutes thereafter. After those shots were fired Mrs. Cornett attempted to take the gun from defendant and in the ensuing struggle a third shot was fired which seriously wounded the defendant.
The homicide occurred in Resa's Tavern in Eldon, Missouri. Decedent and defendant had spent most of the evening at the tavern. When defendant entered the tavern he had the gun in question concealed in his shirt. He testified that he had the gun for 'protection' and that he took it out of his shirt and put it between two beer cases located behind the bar near the north end thereof. Dorothy Burlingame testified that she talked with defendant during the early part of the evening and that he showed her the gun and told her that he was going to kill Cornett.
None of the witnesses for the State saw what occurred immediately before the shooting. Most of them heard the first shot and looked up in time to see defendant fire the second shot at deceased. Defendant, in support of his defense of self-defense, testified that he saw Cornett coming toward him with something 'silver colored' in his hand; ; that he reached around the end of the bar to get the gun and it was placed in his hand by Bonnie (a waitress); that about the time he got the gun he was hit behind the ear and 'stunned.'
Defendant complains of error in the admission of evidence offered by the State as follows: With reference to (a) and (b) it will be noted that defendant has not specified the particular evidence about which he complains. We have read the testimony of the sheriff and do not find any evidence which was admitted over defendant's objection which corresponds to the general description in those assignments. We therefore have nothing before us to consider in regard to those points.
Assignment (c), supra, refers to State's exhibits 1 to 6, inclusive, which were items obtained by the sheriff at the tavern shortly after the shooting. All of these exhibits were admitted without objection except exhibit 1, the gun alleged to have been used by defendant. Exhibit 1 was offered during the State's case in chief and then withdrawn when defendant objected that it had not been properly identified. It was thereafter re-offered and admitted during rebuttal over the defendant's objection that 'it should have been offered in the direct testimony.' It is well settled that the trial court has a broad discretion as to the order of proof and in permitting evidence to be admitted in rebuttal which should have been offered during the case in chief. State v. Washington, Mo.Sup., 320 S.W.2d 565; State v. Robinson, Mo.Sup., 325 S.W.2d 465. We find nothing in the record to indicate any abuse of the trial court's discretion in this instance. The contention is overruled.
The next contention in the motion is as follows:
In reference to (a), supra, we have searched the record and have been unable to find any instance where the court excluded evidence offered by defendant relating to an assault made by the wife of deceased. The point therefore cannot be sustained.
Subpoint (b) apparently refers to certain testimony defendant attempted to elicit upon cross-examination from Harold Wilson, the police chief of Eldon. Mr. Wilson testified that a few days after the homicide he arrested George Wickham for being 'drunk and disorderly' and upon searching Wickham took a pocket knife from him. While defendant made no offer of proof it appears that he desired to prove by the witness that Mrs. Wickham had told him that she had found the knife at the tavern the night of the homicide. The prosecuting attorney objected to the questions upon the ground of hearsay and the court properly sustained the objections. The point is without merit.
The contention stated in subpoint (c) apparently relates to a ruling in connection with defendant's cross-examination of Sheriff Abbott. Counsel for defendant asked the sheriff whether he had questioned decedent's wife on the night of the homicide and received an affirmative answer. Then the following question was propounded: The trial court sustained an objection to the question and that ruling is apparently the basis of the instant complaint. While it would seem apparent that the ruling of the trial court was proper we need not (and do not) actually decide that point as defendant did not make any offer of proof. Where the relevancy or admissibility of evidence is not apparent it is not error to exclude the same unless the party seeking its admission states to the trial court the nature of the testimony he expects to elicit and the purpose for...
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