State v. Hannebrink

• Decision Date: 01 December 1931
• Docket Number: 31426
• Citation: 44 S.W.2d 142,329 Mo. 254
• Parties: The State v. Bill Hannebrink, Appellant
• Court: Missouri Supreme Court

44 S.W.2d 142

329 Mo. 254

The State v. Bill Hannebrink, Appellant

No. 31426

Supreme Court of Missouri

December 1, 1931

Appeal from Cape Girardeau Circuit Court; Hon. Frank Kelly Judge.

Affirmed.

W E. Coffer for appellant.

(1) The court erred in holding that defendant could not show all the things that happened at Hannebrink's house, when Davis was there at breakfast and admitted he did not know who hit him. Impeachment of a witness on matters material to the main fact is never a collateral matter. State ex rel. v Daues, 10 S.W.2d 931; Jablonowski v. Mfg. Co., 312 Mo. 173, 279 S.W. 89; 40 Cyc. 2704, notes 44, 45 and 46; State v. Wertz, 191 Mo. 569; State v. West, 95 Mo. 140; State v. Burns, 148 Mo. 167. The rule in Baublits case, 27 S.W.2d 15, and kindred cases is not applicable, and the rule in those cases is unsound as the impeachment of a witness, on matters embraced in the inquiry on relevant facts, is never collateral. State v. Long, 257 Mo. 223; McElvain v. McElvain, 20 S.W.2d 912; Luzadder v. McCall, 198 S.W. 1144; State v. Earnest, 70 Mo. 520; 16 C. J. 870, sec. 2189, note 60. (2) The remarks of the court were argumentative, erroneous and invaded the province of the jury and belittled the effect of impeachment of Davis. Murphy v. Tumbrink, 25 S.W.2d 135; Atkinson v. U. Rys. Co., 286 Mo. 634, 228 S.W. 483; 38 Cyc. 1517, notes 61, 62, 63 and 64; 16 C. J. 932, notes 12 to 16; State v. Hyde, 234 Mo. 255. (3) The indictment was bad for uncertainty. It did not advise the defendants of the nature and cause of the accusation against them. Art. 2, sec. 22, Mo. Constitution; State v. Griffith, 279 S.W. 138; State v. Terry, 109 Mo. 601; State v. Watson, 216 Mo. 420; Kelly's Cr. L. & Prac. (3 Ed.) sec. 582, note 98. (4) The question about a lug wrench propounded to Dr. Fuerth assumed something not proven and was error. Kelly's Cr. L. & Prac. (3 Ed.) sec. 373, note 122; State v. Brown, 181 Mo. 215; Hicks v. Railroad, 124 Mo. 115; State v. Dunn, 179 Mo. 95; Root v. Railroad, 195 Mo. 348, 6 L. R. A. (N. S.) 212; Schultz v. Railroad, 4 S.W.2d 768. (5) The last part of Instruction 1, "that should not prejudice you against the State," was a prejudicial comment, and invaded the province of the jury, and the fact that he was not convicted under this instruction is immaterial, as that part of the instruction went to affect the merits of the whole case. Strother v. Milling Co., 261 Mo. 27; Honea v. Railroad, 245 Mo. 621; Sec. 3694, R. S. 1929; State v. Stubblefield, 239 Mo. 526; State v. Rutherford, 152 Mo. 124; State v. Cole, 213 S.W. 110; Kelly's Cr. L. & Prac. (3 Ed.) sec. 391. (6) Instruction 2 assumed a weapon was used, a controverted issue. It also permitted the jury to convict if the defendant struck Davis on the "body" and submitted matters outside the evidence. State v. Harris, 209 Mo. 438; State v. Grant, 152 Mo. 57; State v. Hall, 7 S.W.2d 1006; State v. Hersh, 296 S.W. 433; State v. Little, 67 Mo. 624; State v. Samuels, 144 Mo. 68. It did not define or tell the jury how to determine what was a dangerous and deadly weapon. State v. Harris, supra. (7) Asking Fred Hannebrink if he did not try to get Hilda Hoffman to change her testimony without any showing or even claim that she had changed same in the slightest degree was prejudicial error. Fred Hannebrink was defendant's uncle. Nelson v. Heine, etc., Co., 20 S.W.2d 906; State v. Eddington, 286 S.W. 143; State v. Bunton, 280 S.W. 1040. (8) The court erred in not granting a new trial on newly discovered evidence, affidavits of William Stewart, Lillian Crites and Chas. Crites. State v. Sherrill, 278 S.W. 992; State v. Moberly, 121 Mo. 604; State v. Murray, 91 Mo. 95; State v. Curtis, 77 Mo. 267; Sec. 3734, R. S. 1929; Pierce v. Rogers, 15 S.W.2d 874; Galeener v. Derris, 20 S.W.2d 167; Neal v. Ry. Co., 229 S.W. 115.

Stratton Shartel, Attorney-General, for respondent; Lawrence Presley of counsel.

(1) Indictment is sufficient and in the language of the statute. Sec. 4014, R. S. 1929. Indictment cannot be attacked after trial and judgment because it lacks certificate and signature of foreman of grand jury. State v. Majors, 237 S.W. 486, Sec. 3563, R. S. 1929. (2) The motion for a new trial as filed in this case consisted of eighteen assignments of error. In the brief submitted appellant's learned counsel has by abandonment reduced the number to eight. These will be considered as forming the basis of his appeal. State v. Janes, 1 S.W.2d 137; State v. Murrell, 289 S.W. 859; State v. Bishop, 296 S.W. 147; State v. Kelley, 284 S.W. 801. (3) The appellant did not lay any proper foundation for the impeachment of Davis. Any statement that Davis made to appellant or anyone else after the fight, relative to the fight, and if he did state that "he did not know who hit him" the same could have been introduced as original evidence by the appellant, or Davis could have been impeached with a proper foundation. The evidence fails to show any attempt by appellant to introduce the above statement of Davis as original evidence, or to contradict Davis by impeachment after he had denied on cross-examination that he had made such statement. The other things that happened at Hannebrink's house as alleged by appellant are incompetent as evidence for the reason it is collateral and immaterial and proves no issue in the case. The trial court did not deny the appellant the right to impeach the State witnesses by cross-examinations on matters material or immaterial. But when that right has been accorded appellant on matters immaterial he is bound by the answer of the witness, and he cannot impeach the witness as to collateral or immaterial matters by evidence aliunde. State v. Baublits, 27 S.W.2d 19; State v. Bunton, 312 Mo. 655, 280 S.W. 1040; Maurizi v. Western Coal & Mining Co., 11 S.W.2d 268; State v. Cox, 263 S.W. 215. (4) The doctor had examined the wound Sam Davis has sustained and was qualified to answer such question. All of the facts assumed were in evidence. Greenleaf (3 Ed.) 313, 314. Hypothetical questions, predicated on proven facts, are admissible. Schulz v. Railroad, 4 S.W.2d 768. Error cannot be predicated on hypothetical questions as incorporating facts not in evidence, where there is some evidence supporting each fact detailed. Loughlin v. Gro. Co., 10 S.W.2d 75. (5) On cross-examination a witness may be asked any question which would test his accuracy. State v. Murray, 316 Mo. 31. Witness in criminal case may be cross-examined respecting matters not in direct examination to test credibility, truth of statements, means of knowledge with great latitude. State v. Hersh, 296 S.W. 433. (6) The appellant failed to assign the remarks of the court as error in the motion for new trial, consequently it is not reviewable by this court. State v. Wilhite, 295 S.W. 82; State v. Sharp, 300 S.W. 501; State v. Pierce, 7 S.W.2d 269. The eighth assignment in appellant's brief alleges error because of newly-discovered evidence. (7) A careful examination of the affidavits of the witnesses discloses that they are not testifying to anything new. Their evidence would be merely cumulative. Appellant produced several witnesses at the trial who testified to the identical evidence set out in the affidavits of William Stewart, Lillian Crites, and Fred Crites. The granting of a new trial upon the ground of newly-discovered evidence is a matter largely resting in the sound discretion of the trial court, and absent an abuse of sound discretion this court will not interfere. State v. Walker, 250 Mo. 322; State v. Smith, 247 S.W. 157. The trial court committed no error in refusing to grant defendant a new trial based on cumulative testimony. State v. Smith, supra.

OPINION

White, P. J.

An indictment returned in the Circuit Court of Cape Girardeau County charged that, February 15, 1930, Bill Hannebrink and Howard Henson committed a felonious assault upon Sam Davis and Sherman Davis, using a deadly weapon with intent to kill. The trial was had September 11, 1930. After the jury was sworn the State announced that it would elect to proceed for the assault upon Sam Davis, and not for that upon Sherman Davis. Defendants objected. Objection overruled and defendant excepted. The trial proceeded for the assault upon Sam Davis alone. At the close of the evidence nolle prosequi was entered as to Howard Henson. Bill Hannebrink was found guilty by a jury and his punishment assessed at three years in the penitentiary. He was so sentenced and in due time and form he appealed.

The difficulty occurred at a roadside store called "I Love You Grocery" owned and operated by Fred Hannebrink, an uncle of the defendant. It was late in the afternoon, after dark. It appears that Bill Hannebrink and the Davises had been drinking and had had difficulties that same afternoon. Sam Davis had got out of jail that morning about nine o'clock. He was a single man, and owned a "shack" which it appears he had rented to Henson. Late in the afternoon Sam Davis and Sherman Davis went to the place and found there Henson and Roy Sides. Sam Davis told Henson he would like to have his house. Two other men came and a fight ensued in which Sam Davis knocked one of the other men down. Later he had a fight with Henson. The latter difficulty was made up, the two shook hands; probably were drunk enough to forget the fight. Sam Davis, Sherman Davis and Howard Henson then drove in Davis's car to Hannebrink's store, parked the car, went in, and Sam Davis bought a bottle of soda and some cigarettes. Several were there. Henson and Bill Hannebrink went outside, were gone for a time, later came back and called Sam Davis out for the purpose of settling an argument they had had. Sam Davis and Sherman Davis started outside when Bill Hannebrink struck Sherman with a lug wrench,...