State v. Hale, 50000

• Decision Date: 14 October 1963
• Docket Number: No. 1,No. 50000,50000,1
• Citation: 371 S.W.2d 249
• Parties: STATE of Missouri, Respondent, v. Olon HALE, Appellant
• Court: Missouri Supreme Court

Page 249

371 S.W.2d 249

STATE of Missouri, Respondent, v. Olon HALE, Appellant.

No. 50000.

Supreme Court of Missouri, Division No. 1.

Oct. 14, 1963.

Thomas F. Eagleton, Atty. Gen., Richard R. Nacy, Jr., Sp. Asst. Atty. Gen., Jefferson City, for respondent.

HOUSER, Commissioner.

Olon Hale was charged with and found guilty of murder in the second degree. Punishment was assessed at imprisonment in the penitentiary for a period of 10 years. Judgment was rendered accordingly. Defendant appealed but filed no brief. It is our duty to examine all of the assignments of error, lettered A to Q, in appellant's motion for a new trial. Supreme Court Rule 28.02, V.A.M.R.

From the state's evidence and the inferences reasonably to be drawn therefrom the jury could have found these facts: Appellant went to Pearl Ann Moore's third floor living quarters with a loaded pistol in his pocket for the purpose of trying to prevail upon her to resume their former status of living together out of wedlock. She told appellant that she did not want to go back to living with him, and did not want to see him anymore. Pearl said she was going to tell her sister (who lived on the second floor) and make appellant 'get out of there.' Appellant did not want Pearl's sister to know anything about their conversation. When he refused to leave Pearl 'hollered' twice for her sister, whereupon appellant produced the pistol from his pocket and cocked it. He tried to restrain her from leaving the third floor, grabbed her by the arm, pushed and tried to choke her. Pearl went out in the hallway on the third floor to call for her sister. When Pearl reached the head of the stairs, in an effort to escape, appellant intentionally fired the pistol at Pearl, not at close range. The bullet struck Pearl an inch or less behind the left ear, inflicting a wound which caused her death.

Appellant's evidence tended to show that the pistol was accidently discharged in the course of a friendly scuffle between appellant and Pearl for the possession of the gun, without any intent on his part to harm her.

Nine assignments of error relate to the rulings of the court in the admission of evidence.

A. The coroner's physician testified that he performed an autopsy on the body of Pearl Ann Moore and that the cause of death was a gunshot wound of the head with laceration of the brain and subdural hemorrhage. Appellant claims there was no evidence of the identity of the body upon which the autopsy was performed as that of Pearl Ann Moore. Pearl was taken to City Hospital No. 2, where she was treated, X-rayed and a tracheotomy performed. She expired 6 1/2 hours after admission. The next day the coroner's physician performed an autopsy on the body of a woman identified in his report and in his testimony as that of Pearl Ann Moore, in the course of which he removed a bullet from her head and turned the bullet over to a detective in the homicide department. The bullet, Exhibit 8, was shown by ballistic tests to have been fired from the gun which appellant produced and identified at the trial as the gun with which he shot Pearl Ann Moore. This evidence was sufficient to identify the body upon which the autopsy was performed as that of Pearl Ann Moore.

B. Sergeant Fritsche testified that appellant first told the officers that he scuffled with the woman and shot her as she was facing him; that the officers told appellant that was impossible, due to the way the woman was hit, the bullet having entered the back part of her head; that appellant then changed his story and made the incriminatory statement upon which the state relied for a conviction. At the trial this evidence was objected to on the ground that it was a conclusion of the officer, not responsive to the question. In the motion for new trial this evidence was challenged for an entirely different reason, i. e., that 'said testimony was hearsay, was proof of an extrajudicial statement by the witness and invaded the province of the jury and was highly prejudicial.' We cannot review this new and different assignment of error because it raises an objection not made at the time the testimony was offered. State v. Hernandez, Mo.Sup., 325 S.W.2d 494, and cases cited, 496[3, 4].

C. It was established on cross-examination of Sergeant Fritsche that an official police report was prepared. The officer had read the report on the previous day at the homicide section of police headquarters. Counsel for appellant asked the officer if he would 'go and get the report and bring it.' On objection the court said: 'I sustain that objection, and I won't order him to bring it, and it's not admissible if he does bring it, * * *.' Exception was taken to the ruling and the court's remark on the ground that it was 'totally unnecessary' and uncalled for; that counsel was trying to lay the foundation for possible impeachment of the officer by use of the police report; that the ruling informed the jury that defense counsel was attempting to produce illegal evidence and this prejudiced appellant in the eyes of the jury. There having been no showing as to the contents, materiality or relevancy of the police report, State v. Gilliam, Mo.Sup., 351 S.W.2d 723, and no showing that the report would have impeached the officer, State v. Cochran, Mo.Sup., 366 S.W.2d 360, ¹ no application for the issuance of a subpoena duces tecum under Supreme Court Rule 25.19, and no motion to produce and permit inspection under Supreme Court Rule 58.01, ² there was no error in sustaining the objection to the request that the officer fetch the report. The court's suggestion that it would not be admissible was made in explanation of the reason why the court would not order the officer to produce the report. While unnecessary and better left unsaid, we find therein no prejudice to appellant's rights.

D. Appellant complains that the court improperly limited the cross-examination of Sergeant Fritsche on the question whether during the interview between the sergeant and appellant notes were taken and incorporated in the police report. The record does not bear out the complaint. Counsel for appellant repeatedly asked the sergeant if notes were taken, and the witness repeatedly denied that any notes were taken or memoranda made. We find at least nine instances in which counsel was allowed to make that very inquiry, and no instance in which the cross-examination was limited in this connection.

E. The court sustained the state's objections to appellant's cross-examination of the sergeant in which the sergeant was asked whether he corroborated the information in the report; whether the report dealt with the facts to which the witness had testified, and whether the parts of the report pertaining to what happened when the witness was present were true, on the ground that the report itself was the best evidence of its contents and that the question called for a conclusion. Appellant asserts this was error 'for the reason that defense counsel was attempting to lay a foundation for the possible impeachment of Sgt. Fritsche's testimony by use of the police report,' for 'defendant had reason to believe that the testimony given in Court was in direct conflict with the report * * *.' There is nothing in the record to indicate any basis for appellant's stated belief that the witness' testimony conflicted with the police report. The police report was not the witness' report; was not prepared by him; was not used by him to refresh his memory while on the stand; was not referred to in his direct examination, and was not produced or introduced in evidence. A witness may not be cross-examined as to the contents of a written document which is not introduced in evidence, 58 Am.Jur., Witnesses, Sec. 643, or not covered in the direct examination. 98 C.J.S. Witnesses Sec. 391, p. 163, fn. 47; People v. Sain, 384 Ill. 394, 51 N.E.2d 557. There was no error in the court's ruling.

F. Corporal Ferguson testified that Sergeant Fritsche had told appellant that his version of the shooting could not possibly be true, since the deceased was shot from the back. Appellant contends that it was error to receive this testimony over objection, because this statement is based on hearsay, and is a conclusion which invades the province of the jury, and is therefore incompetent, immaterial and highly prejudicial. This complaint is without merit for the reason that Ferguson's testimony was not offered as evidence of the truth of the fact asserted, but merely for the purpose of establishing the fact that the statement was made by the sergeant. The hearsay rule has no application where the extrajudicial utterance is offered "not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted * * *." Wigmore on Evidence, Sec. 1766, quoted in Mash v. Missouri Pac. R. Co., Mo.Sup., 341 S.W.2d 822, 827; Bond v. Wabash R. Co., Mo.Sup., 363 S.W.2d 1, 5.

G. The assistant circuit attorney testified that as he arrived to interview appellant he encountered Lieutenant O'Neill who told him 'this was one shot.' It is objected that the court erred in not declaring a mistrial; that this was hearsay testimony, highly prejudicial because based upon an erroneous conclusion by the police officers as to how the shooting took place, and that it invaded the province of the jury. On objection the court said to the jury: '* * * whatever your verdict may be in this case, you are not to take into consideration what Lieutenant O'Neill told this man. That doesn't bind this defendant in this case. That conversation didn't take place. In this case, he is not bound by it. Don't base your verdict on that, and don't even remember it happened, just disregard it.' The court's instruction constituted a sustaining of the objection, and the admonition to disregard went further on behalf of appellant than his counsel had requested. No other or further relief was asked; no motion was made for a mistrial. Appellant...