State v. Hardin

• Decision Date: 15 November 1929
• Docket Number: 29027
• Citation: 21 S.W.2d 758,324 Mo. 28
• Parties: The State v. L. Hardin, Appellant
• Court: Missouri Supreme Court

21 S.W.2d 758

324 Mo. 28

The State v. L. Hardin, Appellant

No. 29027

Supreme Court of Missouri

November 15, 1929

Appeal from Dunklin Circuit Court; Hon. Frank Kelly Special Judge.

Affirmed.

L R. Jones and John M. Dalton, for appellant.

(1) The trial court erred in admitting in evidence the alleged statement of the defendant pertaining to the Ku Klux Klan and in failing to strike out such testimony and instructing the jury to disregard the same, and erred in failing to discharge the jury and quash the panel on motion of appellant's counsel. O'Hara v. Construction Co., 197 S.W. 165; Beck v. Railroad, 129 Mo.App. 24; State v. Connor, 252 S.W. 713. (2) The court erred in giving Instruction 4. (a) This instruction assumed controverted facts, or at least invaded the province of the jury in passing on the credibility of witnesses, singled out particular matters and commented thereon, and was an unwarranted comment on the evidence. State v. Hall, 7 S.W.2d 1005; State v. Hersh, 296 S.W. 435; State v. Ball, 262 S.W. 1046; Sec. 4038, R. S. 1919. (b) The statement attributed to defendant by witness Grugett wherein defendant said, "I will tell you just man to man that I had a pint of whiskey and threw it out," is no evidence tending to establish the guilt of the defendant of the offense of transportation charged in the information and referred to in this Instruction. State v. Peters, 6 S.W.2d 838; State v. Keltner, 278 S.W. 825. (c) This instruction was therefore tantamount to telling the jury that the jury could consider the alleged statements attributed to defendant relative to the Ku Klux Klan, as evidence of his guilt of the offense of transporting whiskey. The defendant's hostility to the Klan could in no way bear upon his guilt of the offense charged, and the cross-examination of the sheriff in this case clearly establishes why such prejudicial matter was injected into the case. State v. Ross, 300 S.W. 718. (3) The court erred in giving to the jury Instruction 2, requested by the State. (a) This instruction assumes that a crime had been committed and assumes the existence of a conspiracy; assumes that the appellant and Bunch, who was jointly charged, were acting together under a prearranged plan and invades the province of the jury. Authorities under 2 (a). (b) This instruction failed to require the jury to find that the defendant acted feloniously and to find a criminal intent. State v. Baumann, 278 S.W. 976; State v. Whitman, 248 S.W. 938. (4) The court erred in permitting the prosecuting attorney to make improper and prejudicial argument, the natural inference and deduction from which was a comment on the failure of the defendant to testify in the cause. Sec. 4037, R. S. 1919; State v. Anderson, 240 S.W. 848. (5) The trial court erred in overruling the application for change of venue filed by the defendant. State v. Bradford, 285 S.W. 500.

Stratton Shartel, Attorney-General, for respondent;

H. H. Blair, of counsel.

(1) Defendant's statement pertaining to Ku Klux Klan was relevant and material evidence and properly admitted. It was part of an alleged confession voluntarily made to the sheriff when arrested. In the proof of such statements the whole of what the accused said at the time should be considered all together. The State is entitled to show the whole statement. It is permissible for the entire confession and the conversation containing it to be introduced in evidence. 16 C. J. 723, sec. 1481; Note, 2 A. L. R. 1017; State v. Carlisle, 57 Mo. 102; State v. Hollenscheit, 61 Mo. 302; State v. Wisdom, 119 Mo. 539; State v. Lovell, 235 Mo. 343; Gleason v. State, 183 S.W. 891. Competent evidence cannot be excluded on the ground that its introduction would prejudice one of the parties. Jablonowski v. Modern Cap Mfg. Co., 279 S.W. 89. (2) Instruction 4 is correctly framed and was properly submitted to the jury by the court. It does not assume controverted facts or invade the province of the jury. It is not an unwarranted comment on the evidence. It declares the law regarding statements made by an accused prior to trial and has been used verbatim by the courts of this State on many occasions. State v. Hayes, 262 S.W. 1034; State v. Long, 253 S.W. 729. (3) That part of Instruction 2 complained of by appellant in his motion for new trial correctly declares the law regarding the guilt of principals. It does not assume that a crime has been committed or that a conspiracy exists. It does not invade the province of the jury or assume that appellant and Bunch were acting together under a prearranged plan. State v. Valle, 164 Mo. 550. (4) Failure to require the jury to find appellant acted feloniously is not error. The word "feloniously" is descriptive of the grade of the offense rather than of the criminal act which constitutes it, and ordinarily has no place in such an instruction. State v. Miles, 199 Mo. 530. (5) Failure to instruct the jury on the credibility of witnesses, was not error. Such an instruction was not requested by appellant, and the court is not required to give it as a matter of law because it involves a collateral matter. State v. English, 308 Mo. 695, 274 S.W. 470; State v. Miller, 292 S.W. 440. (6) The court properly allowed the jury to inspect and smell the bottle of whiskey offered in evidence. Jurors have the right, in passing on all objects and things introduced in evidence before them, to use any of their senses which may be helpful in reaching a proper conclusion. State v. Sissom, 278 S.W. 704; State v. Jordan, 285 S.W. 403. (7) Appellant's application for change of venue from county was properly denied. Appellant's affidavit states that the prejudice is against the offense, while the supporting affidavits state that the prejudice is in favor of enforcing the law. In neither is it stated as a fact that any prejudice existed against appellant and Bunch.

OPINION

Higbee, C.

An information was filed in the Circuit Court of Dunklin County charging that, on November 14, 1926, at said county, L. Hardin and Birt Bunch did then and there unlawfully and feloniously transport moonshine whisky, to-wit, one-half pint more or less, against the peace and dignity of the State. On May 2, 1927, the defendants Hardin and Bunch filed "their application for a change of venue from the judge," which was sustained, and the cause was set for trial before Frank Kelly, judge of an adjoining circuit, on June 14, 1927, who was requested to appear and try the case. On the day designated, Judge Kelly appeared, and the defendants made application for a change of venue from the county, which was overruled. The defendant Hardin was granted a severance and on a trial to a jury a verdict was returned finding him guilty as charged and assessing his punishment at imprisonment in the penitentiary for a term of two years. From a sentence in accordance with the verdict he appealed.

S. E. Grugett, sheriff, and his wife and Tom Grooms, who were deputy sheriffs, on the night of November 5, 1926, were out in Grugett's car searching for the defendants. They met them about midnight driving in a five-passenger Chevrolet automobile on a public highway in Dunklin County. Grugett ordered them to stop, but they drove rapidly away and during the pursuit Hardin took up in his hands a five-gallon keg and threw it out of the car. The keg rolled into the ditch at the side of the road. Bunch was driving the Chevrolet car at the time. In a few minutes Grugett maneuvered his car into a position in front of the Chevrolet and forced the defendants to stop. He arrested both of them, read a search warrant to them and searched the car, but found nothing in it. Grugett took the defendants into his car, and Grooms took charge of the Chevrolet. They turned back and picked up the five-gallon keg which Hardin, five or ten minutes previously, had thrown out on the side of the road. They then returned to Kennett, the county seat, with the keg and the defendants.

While Mr. Grugett was on the witness stand he stated that after the arrest the defendant made a statement. On being asked if it was a voluntary statement, witness said it was; that he had made the defendant no promises or threats: "He [the defendant] asked where I was going, and I said up the road a piece, and he said: 'I will tell you just man to man, that I had a pint of whisky and threw it out.'"

Defendant's counsel moved the court to exclude the statement and to instruct the jury to disregard it, because it was incompetent and immaterial as an admission or confession of the offense charged. The motion was overruled and defendant saved an exception. The witness, Mr. Grugett, continued: "He [the defendant] said: 'Well, I suppose the damn Ku Klux Klan will be satisfied now,' and said to Mrs. Grugett: 'I hope you will excuse me.'" Defendant's counsel moved that the statement be struck out, because it was prejudicial, and that the panel be quashed, which motion was overruled and defendant saved an exception.

The witness, Grugett, continuing: "He said I guess they will be satisfied now. The only difference between them and me is that they buy it by the jug in the night time and I buy it by the bottle in the day time."

Defendant's counsel moved to exclude the statement as prejudicial and no proof of the offense charged, it being offered solely to prejudice the jury. The motion was overruled and the defendant excepted. Witness continuing: "There were five gallons of moonshine whisky in that keg. I took this bottle (producing one). It is moonshine whisky. It came from the keg I picked up on the roadside that came out of the car Bunch and Hardin was in. It has been in my possession ever since." (Here the bottle of liquor was handed to the jury for their inspection, over the objection and exception of the...