State v. Gadwood

• Citation: 116 S.W.2d 42,342 Mo. 466
• Decision Date: 03 May 1938
• Docket Number: 34750
• Parties: The State v. John Gadwood, Appellant
• Court: Missouri Supreme Court

116 S.W.2d 42

342 Mo. 466

The State v. John Gadwood, Appellant

No. 34750

Supreme Court of Missouri

May 3, 1938

[Copyrighted Material Omitted]

Appeal from Jackson Circuit Court; Hon. Darius A. Brown Judge; Opinion filed at September Term, 1937, December 17 1937, motion for rehearing filed; motion overruled at May Term, 1938, May 3, 1938.

Affirmed.

Ira B. McLaughlin, Roy W. Rucker and Ralph S Latshaw for appellant.

(1) The trial court erred in overruling defendant's application for a continuance. (a) The application strictly complies in every respect with all statutory formalities. Sec. 3654, R S. 1929. (b) An application for continuance may be controverted only by counter-affidavit; oral evidence may not be received for such purpose. State v. Hesterly, 182 Mo. 16, 81 S.W. 624. (c) The absent witness was duly subpoenaed; his failure to appear entitled defendant to the relief prayed for on the ground of surprise. State v. Jasper, 324 Mo. 668, 24 S.W.2d 161. (d) The right of the absent witness to claim a privilege from testifying was personal to him and furnished no ground for the erroneous ruling. State v. Shepard, 334 Mo. 423, 67 S.W.2d 91. (e) The interest, if any, of the absent witness, in the result of the trial furnished no ground for the erroneous ruling. State v. Wright, 336 Mo. 135, 77 S.W.2d 459; State v. Maddox, 117 Mo. 667, 23 S.W. 771. (f) The allegations in the application as to what the testimony of the absent witness would be may not be controverted by counter-affidavit or otherwise. State v. Maguire, 69 Mo. 197; State v. Good, 132 Mo. 114, 33 S.W. 790. (g) The utmost diligence on the part of the defendant was shown, without dispute; defendant was entitled to the personal presence of the witness. (h) The materiality of the evidence that the absent witness would give was tacitly admitted and unquestionably established. The trial record reveals that the same facts could not be proved by the testimony of any other witness. (i) On analogous facts, this court has ruled many times that the denial of an application for a continuance was reversible error. State v. Anderson, 96 Mo. 241, 9 S.W. 636; State v. Wade, 307 Mo. 291, 270 S.W. 298; State v. Swafford, 12 S.W.2d 442; State v. Walker, 69 Mo. 274; State v. Klinger, 43 Mo. 127. (2) The trial court erred in failing to require the prosecutor to permit an inspection, by defendant's counsel, of a paper writing used, ostensibly, to refresh the recollection of State's witness Larwood. Traber v. Hicks, 131 Mo. 180, 32 S.W. 1145; State v. Patton, 255 Mo. 245, 164 S.W. 223; State v. Miller, 234 Mo. 588, 137 S.W. 887. (3) The trial court erred in excluding competent, relevant and material testimony offered by the defendant. (a) A conspiracy may be shown by circumstantial evidence and great latitude is allowed in the admission of such evidence. State v. Kinnamon, 314 Mo. 662, 285 S.W. 62. (b) Defendant had the absolute right to explain, in a manner consistent with his innocence, the circumstances proved by the State. Norcott v. United States, 65 F.2d 913; State v. Wilcox, 179 S.W. 479. (c) A prior declaration of a person's intention is competent evidence, where, as here, the question of his intent is in issue. State v. Young, 119 Mo. 495, 24 S.W. 1038; State v. Brandau, 76 Mo.App. 305; State v. Graham, 46 Mo. 490; State v. Matthews, 20 Mo. 55; Koonse v. Mo. Pac. Ry. Co., 322 Mo. 813, 18 S.W.2d 467. (d) Defendant had the right to introduce evidence tending to explain his flight from the scene of the homicide. State v. Mallon, 75 Mo. 355; State v. Barham, 82 Mo. 67. (e) Where, as here, conspiracy is alleged, evidence revealing the relationship between the defendant and the alleged coconspirators is material. State v. McGee, 188 Mo. 401, 87 S.W. 452; Johnston v. United States, 22 F.2d 1; 2 Wharton's Criminal Ev. (10 Ed.), p. 1671, sec. 888. (f) It was reversible error to exclude evidence tending to corroborate defendant's explanation of the circumstances proved by the State. 1 Wigmore on Evidence (2 Ed.), p. 247, secs. 34, 36, p. 497, sec. 239; 2 Wharton's Criminal Evidence (10 Ed.), p. 1499, sec. 753, p. 1825, sec. 947; State v. Gabriel, 88 Mo. 631; State v. Decker, 14 S.W.2d 617; Car v. State, 43 Ark. 99; State v. Prater, 130 Mo.App. 348, 109 S.W. 1047; State v. Isensee, 249 N.W. 898; Mohler v. State, 265 S.W. 553. (4) The trial court erred in refusing to give to the jury Instruction C, on the subject of circumstantial evidence. (a) A principal in the first degree is he that is the immediate actor or perpetrator of the crime. (b) A principal in the second degree is he who is present, aiding and abetting the fact to be done. (c) An accessory before the fact is one who, being absent at the time the crime is committed, doth yet procure, counsel or command another to commit a crime. 4 Blackstone's Commentaries, chap. 3, Star pp. 34, 36; 1 Wharton's Criminal Law (11 Ed.), pp. 311, 314, 335, secs. 240, 245, 263; 1 Bishop on Criminal Law (9 Ed.), pp. 469, 486, secs. 648, 673. (d) A principal in the second degree and an accessory before the fact may be charged, tried, convicted and punished in the same manner as the principal in the first degree. Sec. 4446, R. S. 1929; State v. Davis, 7 S.W.2d 264; State v. Davis, 29 Mo. 391. (e) To constitute one a principal in the second degree, (1) there must be a guilty principal in the first degree; (2) the principal in the second degree must be present when the offense is committed. But his presence may be constructive; (3) he must aid or abet the commission of the offense. Some participation is necessary, though it need not necessarily be active. Mere knowledge of the offense and mental approval is not enough. Clark & Marshall on the Law of Crimes (2 Ed.), p. 239, sec. 170; State v. Davis, 29 Mo. 391; State v. Simon, 57 S.W.2d 1062; State v. Ledbetter, 332 Mo. 225, 58 S.W.2d 453; State v. Orrick. 106 Mo. 111, 17 S.W. 176; State v. Porter, 276 Mo. 387, 207 S.W. 774; State v. Hickam, 95 Mo. 322, 8 S.W. 252. (f) Testimony completely impeached is of no probative force. State v. Welton, 225 S.W. 965. (g) Wherever analogous facts are found in decided cases, it is ruled that the evidence required the giving of an instruction upon the subject of circumstantial evidence. Tyler v. State, 53 S.W.2d 64; Davis v. State, 296 S.W. 895; Henderson v. State, 48 S.W.2d 271; Duke v. State, 36 S.W.2d 732; Anderson v. State, 213 S.W. 639; Cain v. State, 146 S.E. 340; Tipton v. State, 253 S.W. 301; Mixon v. State, 90 S.W.2d 832; State v. Ellis, 290 Mo. 219, 234 S.W. 845; State v. Smith, 190 S.W. 288; State v. Stewart, 44 S.W.2d 104; State v. Woolard, 111 Mo. 248, 20 S.W. 27. (h) The following cases, decided by this court, hold that, where the State relies for a conviction upon circumstantial evidence, it is reversible error to fail or refuse to give an instruction on that subject. State v. Swarens, 294 Mo. 139, 241 S.W. 934; State v. Linders, 246 S.W. 558; State v. Burns, 268 S.W. 78; State v. Miller, 292 Mo. 124, 237 S.W. 498; State v. Bennett, 297 Mo. 190, 248 S.W. 924; State v. Fitzgerald, 201 S.W. 86. (5) The court erred in failing to give to the jury Instruction M, requested by the defendant and refused by the court. State v. Bresse, 326 Mo. 885, 33 S.W.2d 919. (6) If Instructions C and M were not in proper form, it became the duty of the trial court to give proper instructions upon the points of law suggested by each of said instructions. The failure of the trial court to instruct upon such suggested points of law is duly preserved in the motion for new trial. State v. Adler, 146 Mo. 18, 47 S.W. 794; State v. Little, 228 Mo. 273, 128 S.W. 971; State v. Goode, 220 S.W. 854; State v. Moncado, 34 S.W.2d 59; State v. Moore, 160 Mo. 443, 61 S.W. 199. (7) The trial court erred in failing to instruct the jury upon the subject of assault with the intent to kill or to do great bodily harm. Sec. 4014, R. S. 1929; State v. Stemmons, 262 S.W. 706; Sec. 3681, R. S. 1929; State v. Lasson, 292 Mo. 155, 238 S.W. 101; State v. Thompson, 238 S.W. 115. (8) The trial court erred in failing to instruct the jury that defendant should be acquitted if he did not fatally wound the deceased and if the alleged principal in the first degree was justified on the ground of self-defense and/or the defense of another. (a) An aider or abettor or a coconspirator can be guilty of no greater crime than that committed by the principal in the first degree. State v. Decker, 14 S.W.2d 617. (b) Where a homicide is committed in defending one's self against an attack by third parties, it is error to fail to instruct on such theory. The case at bar is the converse of this situation. State v. Fiedler, 330 Mo. 747, 50 S.W.2d 1031; State v. Nelson, 231 S.W. 590. (9) The court erred in giving to the jury Instruction 7 on the subject of manslaughter. (a) Instructions should declare the law applicable to the facts in evidence and not give the jury a roving commission. State v. Kauffman, 329 Mo. 813, 46 S.W.2d 843. (b) The instruction required a finding that the homicide was both intentional and unintentional. It was self-contradictory, inconsistent with itself, unintelligible confusing and misleading. State v. Curtis, 70 Mo. 594; State v. Phillips, 24 Mo. 475. (c) Where a homicide is committed under circumstances which, at common law, were justifiable or excusable, a general verdict of not guilty must be rendered. Sec. 3987, R. S. 1929. (d) It was the rule at common law that "One may do in another's defense whatever the other might do in the circumstances for himself." 1 Bishop's Criminal Law (9 Ed.), p. 623, sec. 877; State v. Foley, 12 Mo.App. 431; State v. Totman, 80 Mo.App. 125. (e) One may take human life, justifiably, when necessary to prevent the commission of a violent felony. 1 Wharton's Criminal Law (11 Ed.),...