State v. Graves

• Citation: 182 S.W.2d 46
• Decision Date: 05 June 1944
• Docket Number: No. 38734.,38734.
• Parties: STATE v. LEROY GRAVES, Appellant.
• Court: United States State Supreme Court of Missouri

182 S.W.2d 46

STATE v. LEROY GRAVES, Appellant.

No. 38734.

Supreme Court of Missouri.

Division Two, June 5, 1944.

Appeal from Howard Circuit Court. — Hon. Aubrey R. Hammett, Judge.

AFFIRMED.

William M. Stringer and Ray L. Falzone for appellant.

(1) The court erred in overruling the defendant's plea in abatement. Secs. 3867, 3870, R.S. 1939. (2) The information is insufficient to charge any offense under the laws of the State of Missouri, and the court erred in overruling the defendant's demurrer thereto and in overruling the defendant's oral objection to the introduction of any evidence made at the beginning of the taking of testimony. State v. Cook, 1 Mo. 547; State v. Hardwick, 2 Mo. 224; Jan v. State, 3 Mo. 45; State v. Palmer Doll, 4 Mo. 455; State v. Flint, 62 Mo. 393; State v. Leonard, 171 Mo. 622; State v. Border, 199 S.W. 180; State v. Hayes, 24 Mo. 358; State v. Good, 24 Mo. 361; State v. Kenyon, 343 Mo. 1160. (3) Court properly allowed motion for new trial filed 12-1-41 after verdict 10-29-41. Sec. 3735, R.S. 1929; Sec. 4125, R.S. 1939; State v. Ryan, 50 S.W. (2d) 999; State v. Schidt, 46 S.W. (2d) 539. (4) The court erred in permitting the State to cross-examine its own witness, Thorpe, and in striking out the answers of said Thorpe as brought out by the defendant's cross-examination, and highly prejudiced the defendant by accusing the defendant's attorney of being unfair in his examination. (5) The court erred in forcing the defendant on cross-examination, over his objections timely made, to state that he had been convicted, and this was a violation of the defendant's rights under both the State and Federal Constitutions. Cummings v. Missouri, 71 U.S. 277; Secs. 13, 23, Art. 11, Mo. Constitution; Sec. 1, Fourteenth Amend., Constitution of United States. (6) The court erred in admitting in evidence; over the defendant's objection, the pistol and bullet with which defendant killed deceased, after the defendant had admitted in open court before the jury that he had killed the deceased with the bullet and pistol described in the information and opening statement of the prosecuting attorney. State v. Peterson, 154 S.W. (2d) 139; State v. Westmoreland, 127 S.W. (2d) 202; State v. McDaniel, 336 Mo. 671; State v. Shawley, 334 Mo. 352; State v. Long, 336 Mo. 630. (7) It was highly prejudicial to the interests of the defendant for the court to permit the prosecuting attorney, Mr. Lamb, over the defendant's objections timely made, to tell the jury, "I am about to close. My work is done. You shall carry on the prosecution from here." (8) Instruction 1, given for the State, was not in proper form, was confusing, contradictory, and deprived the defendant of his right to have the jury consider his case upon all the evidence and authorized a verdict without considering all the evidence. State v. Cushing, 26 Mo. 215; State v. Buchler, 103 Mo. 203; McCormick v. City of Monroe, 64 Mo. App. 197. (9) Instruction 12, given for the State, was prejudicial error. State v. Gordon, 191 Mo. 114; State v. Malone, 39 S.W. (2d) 786; State v. Painter, 44 S.W. (2d) l.c. 82; State v. Littler, 186 S.W. 1045; State v. Barnett, 203 Mo. 640. (10) Instruction 3, given for the State, was prejudicial error, in that it was a comment on the evidence, leaving out the phrase, "beyond a reasonable doubt", conflicts with Instruction 1, and there was no evidence to support it.

Roy McKittrick, Attorney General and John S. Phillips, Assistant Attorney General, for respondent.

(1) The information is sufficient in form and substance and follows the wording of the statute. Sec. 4376, R.S. 1939; State v. Kenyon, 126 S.W. (2d) 245, 343 Mo. 1168; State v. Steenbergen, 68 S.W. (2d) 684, 334 Mo. 880; State v. Conley, 164 S.W. 193, 255 Mo. 185. (2) This court has no jurisdiction to consider bill of exceptions in this case since the motion for new trial was not timely filed. State v. LaBreyere, 333 Mo. 1205, 64 S.W. (2d) 117; State v. Hyatt, 71 S.W. (2d) 711; State v. Jones, 164 S.W. (2d) 85; Section 4125, R.S. 1939. (3) Appellant's assignments of error Nos. 1, 2, 18, 19, 20, 21 and 22 are insufficient and do not conform to the provisions of the statute. Sec. 4125, R.S. 1939; State v. Reagan, 108 S.W. (2d) 391. (4) Trial court did not commit error in permitting prosecuting attorney to question witness Thorpe since it was not cross-examination; there was no prejudice to the defendant. State v. Brown, 247 Mo. 715, 153 S.W. 1027; State v. Allen, 246 S.W. 946; State v. Reagan, 108 S.W. (2d) 391; State v. Schmittzehe, 3 S.W. (2d) 235; State v. Baumann, 1 S.W. (2d) 153; State v. Cutter, 318 Mo. 687, 1 S.W. (2d) 96. (5) The court did not commit error as charged in appellant's assignment of error No. 7 in not allowing certain questions to be propounded to witness Thorpe. State v. Talbott, 73 Mo. 347; Prewitt v. Martin, 59 Mo. 325. (6) The court did not commit error in stating that a certain question asked witness Thorpe was "unfair". People v. Treichel, 200 N.W. 950, 229 Mich. 303; Richardson v. State, 61 S.W. (2d) 514; 23 C.J.S. 344, sec. 991. (7) Lower court did not commit error in forcing defendant to testify as to former convictions. Secs. 1916, 4081, R.S. 1939; State v. Combs, 273 S.W. 1037; State v. Miller, 292 S.W. 440; State v. Williams, 6 S.W. (2d) 915, 320 Mo. 296; State v. London, 84 S.W. (2d) 915; State v. Bagby, 338 Mo. 951, 93 S.W. (2d) 241; State v. Ransom, 340 Mo. 165, 100 S.W. (2d) 294; State v. Willard, 346 Mo. 773, 142 S.W. (2d) 1046; State v. Wilson, 242 S.W. 886; Cummings v. Missouri, 71 U.S. 277, 18 L. Ed. 356. (8) The lower court did not commit error in the admission of the pistol and bullet even though defendant admitted the pistol was used by him and the bullet was from said pistol. State v. Ryland, 324 Mo. 714, 25 S.W. (2d) 109; 22 C.J.S., p. 1207, sec. 812; State v. Cooper, 259 S.W. 434. (9) The trial court did not commit error in permitting the closing argument of the prosecuting attorney as charged in complaint No. 11 or in not rebuking attorney. 23 C.J.S., p. 583, sec. 1107; State v. Barker, 322 Mo. 1173, 18 S.W. (2d) 19; State v. Dodson, 29 S.W. (2d) 60; State v. Nichols, 327 Mo. 1237, 39 S.W. (2d) 777; State v. Albritton, 328 Mo. 349, 40 S.W. (2d) 676; State v. Bundy, 44 S.W. (2d) 121; State v. Martin, 56 S.W. (2d) 137; State v. Wilhite, 159 S.W. (2d) 768. (10) Trial court did not err in giving Instruction 22, and the giving of such instruction was not prejudicial to the rights of the defendant: neither was there an objection to such instruction nor exceptions saved thereto. State v. Furgerson, 53 S.W. 427, 152 Mo. 92; State v. Mace, 278 S.W. 718; State v. Mosley, 22 S.W. (2d) 784; State v. Bunch, 333 Mo. 20, 62 S.W. (2d) 439; State v. Herring, 92 S.W. (2d) 132; State v. Jackson, 102 S.W. (2d) 612, 340 Mo. 748. (11) The trial court did not commit error in submitting Instruction 1 to the jury. State v. Johnson, 3 S.W. 868, 91 Mo. 439; State v. Brown, 270 S.W. 275; State v. McGehee, 274 S.W. 70, 308 Mo. 560; State v. Willard, 346 Mo. 773, 142 S.W. (2d) 1046; State v. Judge, 315 Mo. 156, 285 S.W. 718; State v. Barker, 322 Mo. 1173, 18 S.W. (2d) 19; People v. Bonifacio, 82 N.E. 1098, 190 N.Y. 150; State v. Norman, 134 N.E. 474, 103 Ohio St. 541; Hopt v. Utah, 7 Sup. Ct. 614, 120 U.S. 430, 30 L. Ed. 708; State v. Futrell, 46 S.W. (2d) 588, 329 Mo. 961; State v. Craft, 92 S.W. (2d) 626, 338 Mo. 831; State v. Busch, 119 S.W. (2d) 265, 342 Mo. 959; State v. Enyard, 108 S.W. (2d) 337; State v. Copeland, 71 S.W. (2d) 746, 335 Mo. 140; State v. Ransom, 340 Mo. 165, 100 S.W. (2d) 294; State v. Robinson, 23 S.W. 1066, 117 Mo. 649; State v. Sykes, 154 S.W. 1130, 248 Mo. 708. (12) The trial court did not commit error in the submission of Instruction 12. State v. Huffman, 220 S.W. 851; State v. Harlan, 240 S.W. 197; State v. Griffith, 311 Mo. 630, 279 S.W. 135; Gann v. Chicago, R.I. & P.R. Co., 319 Mo. 214, 6 S.W. (2d) 39; State v. Nasello, 30 S.W. (2d) 132, 325 Mo. 442; State v. Messino, 30 S.W. (2d) 750, 325 Mo. 743; State v. Johnson, 163 S.W. (2d) 780, 349 Mo. 910. (13) The trial court did not commit error in the submission of Instruction 2; the last two paragraphs specifically complained of reference to murder in the first degree and do not affect appellant. State v. Goodwin, 195 S.W. 725, 271 Mo. 73; State v. Sterling, 72 S.W. (2d) 70. (14) Respondent contends there was no error committed in submission of Instruction 3 to jury. State v. Hart, 309 Mo. 77, 274 S.W. 385; State v. Dollarhide, 63 S.W. (2d) 998, 333 Mo. 1087. (15) There was no error committed by the trial court in submitting Instruction 4. State v. Nasello, 30 S.W. (2d) 132, 325 Mo. 442; State v. Messino, 30 S.W. (2d) 750, 325 Mo. 743; State v. Johnson, 163 S.W. (2d) 780, 349 Mo. 910. (16) Trial court did not commit error in overruling defendant's Instruction B in the nature of a demurrer to the evidence; last clause in assignment No. 18 is insufficient. State v. Harris, 22 S.W. (2d) 802, 324 Mo. 223; State v. Gilman, 44 S.W. (2d) 146, 329 Mo. 306; State v. Craft, 92 S.W. (2d) 626, 338 Mo. 831; State v. Peters, 123 S.W. (2d) 34; State v. Privett, 152 S.W. (2d) 73, 347 Mo. 1144. (17) The trial court did not commit error in failing to offer an instruction on imperfect self-defense, since an instruction thereon was given. State v. Zorn, 202 Mo. 12, 100 S.W. 591; State v. Kretschmar, 232 Mo. 29, 133 S.W. 16; State v. Park, 16 S.W. (2d) 30, 322 Mo. 69; State v. Ancell, 62 S.W. (2d) 443, 333 Mo. 26; State v. Hailey, 165 S.W. (2d) 422; Reed v. State, 11 Tex. App. 509.

ELLISON, J.

The appellant, 24 years old, was convicted of murder in the second degree in the circuit court of Howard county on change of venue from Randolph county, and his punishment assessed by a jury at 31 years' imprisonment in the penitentiary for fatally shooting one George Erickson, 60 or 65 years old. The sole defense on the merits was self-defense. Appellant assigns eight procedural errors, which we...