State v. Hastings

Decision Date13 March 1972
Docket NumberNo. 2,No. 56835,56835,2
Citation477 S.W.2d 108
PartiesSTATE of Missouri, Respondent, v. Cletus HASTINGS, Appellant
CourtMissouri Supreme Court

John C. Danforth, Atty. Gen., Richard S. Paden, Asst. Atty. Gen., Jefferson City, for respondent.

Milton Suffian and Marvin Q. Silver, St. Louis, for appellant.

HOUSER, Commissioner.

Cletus Hastings has appealed from a judgment of conviction of molesting a minor, § 563.160, V.A.M.S., upon trial by jury, and a sentence of 3 years' imprisonment under the Second Offender Act.

The only witness testifying to facts incriminating appellant was R_ _ S_ _ S_ _, a female child aged 7 years and 11 months at date of trial. Before she testified the court conducted a preliminary examination out of the hearing of the jury to determine her competence to testify. At the conclusion of the examination the court found the child 'to be an intelligent little girl, she understands the seriousness of her oath, and is competent to testify.' Appellant's trial attorney responded, 'To which I'm going to object at the present time.' The prosecuting attorney stated that RSS would be the State's first witness and the trial of the case commenced, in the hearing of the jury. No objection was made to RSS's competence to testify, as the trial began, and no motion to strike was made at the conclusion of her testimony. The only reference to her competence as a witness appearing in appellant's motion for new trial was paragraph 6: '* * * the Court erred in allowing RS to testify as she was not old enough to know what an oath is and because she had been coached by her mother.' No testimony was introduced at the hearing of the motion for new trial.

Appellant relies upon nine points, separately stated in his brief, but consolidated into two major issues for purposes of argument. The multiple points, basically interrelated, may be covered by considering these two issues.

The first major issue is whether the court erred in permitting RSS to testify; whether the court abused its discretion in ruling that she was a competent witness. Before reaching that issue we consider the question raised by the State whether appellant has properly preserved this question for appellate review in view of the generality of appellant's counsel's objection when the court ruled RSS competent to testify, and the lack of specificity of the assignment of error in the motion for new trial. The Attorney General cites Hildreth v. Key, Mo.App., 341 S.W.2d 601, 608--613, for the proposition that if no proper objection to the competency of an infant to testify as a witness is made in the trial court such objection may not be made for the first time on appeal; that when testimony is challenged in the trial court on one specific ground no additional ground shall be considered on appeal, and that a trial judge may not be convicted of error in overruling an objection on a ground not brought to his attention at the time.

We conclude that appellant's counsel's statement, 'To which I'm going to object at the present time,' without stating any reason, was insufficient to raise any question for appellate review; that counsel's failure to object when the child was offered as a witness when the trial started before the jury constituted a waiver of any objection appellant may have had to the child's competence to testify, and that counsel's unsupported assignment in the motion for new trial that RSS was 'not old enough to know what an oath is' was insufficient to preserve for appellate review the propriety of the court's determination of the competence of the witness to testify.

In such a determination the fundamental elements are (1) present understanding of or intelligence to understand, on instruction, an obligation to speak the truth; (2) mental capacity at the time of the occurrence in question truly to observe and to register such occurrence; (3) memory sufficient to retain an independent recollection of the observations made, and (4) capacity truly to translate into words the memory of such observation. State v. Jones, 360 Mo. 723, 230 S.W.2d 678, 680; State v. Tillett, Mo.Sup., 233 S.W.2d 690; State v. Young, Mo.Sup., 477 S.W.2d 114 (handed down concurrently herewith). No objection incorporating any of these factors was made prior to the admission of the child's testimony. It is elementary that 'the admission of evidence which has not been properly objected to in the trial court will not be reviewed by the appellate court * * *,' 4 C.J.S. Appeal & Error § 290, p. 862 (citing 77 Missouri cases in footnote 49 on page 864 and 18 Missouri cases in the cumulative pocket part). 'If there has been no objection in the trial court to the competency (citing Missouri cases) or to the qualification (citing Missouri cases) of a witness, none may be interposed on appeal.' Hildreth v. Key, supra, 341 S.W.2d l.c. 613(22).

Counsel's statement 'To which I'm going to object at the present time,' made at the conclusion of the preliminary examination, was too general to present anything for appellate review under the hornbook rule that 'an objection to the admission of evidence must, in order to present any question for consideration on appeal, specifically state the grounds or reasons which render the evidence inadmissible, the objection otherwise being waived, even though an exception is noted to the admission of the evidence.' 4 C.J.S. Appeal & Error § 290, pp. 879--880 (see numerous Missouri cases cited in footnote 93, p. 879 and in the cumulative pocket part; also 2A Mo.Dig. Appeal & Error Keynote k231(7)). Counsel's statement suggested no reason why RSS was not competent to testify.

The new trial assignment that RSS was 'not old enough to know what an oath is' was not an objection made at the trial, and this particular assignment was not pursued in appellant's brief on appeal. Furthermore, the assignment was without merit, for there is no precise age at which a child may be considered a competent witness. State v. Groves, Mo.Sup., 295 S.W.2d 169. In Hildreth v. Key, supra, a ruling that a child aged 4 years and 7 months at time of trial had sufficient understanding of an obligation to speak the truth was held not to constitute an abuse of discretion.

Concerned that this technical ruling, which disposes of the first major issue adversely to appellant, not operate to the prejudice of appellant we have reviewed all of the testimony given by RSS at the preliminary examination and at the trial proper (both of which testimonies may be considered in assessing a witness' competence to testify, State v. Tillett, supra, 233 S.W.2d l.c. 693). These testimonies reveal ample basis for a finding by the trial court that the four fundamental requirements listed above were met and satisfied and for appellate determination that there was no abuse of discretion in permitting the girl to testify. 1

The other major issue for our determination is whether the court erred in permitting the prosecuting attorney to cross-examine appellant's character witnesses by asking them whether their favorable testimony with reference to appellant's reputation would be the same if the witnesses knew that appellant had been convicted of a felony and served time in the penitentiary.

The first two witnesses offered by appellant were character witnesses. Because they were businessmen appellant's counsel asked leave to use them out of turn. The prosecuting attorney asked appellant's counsel whether he was going to put appellant on the stand, to which he answered, 'Sure I'm going to put the Defendant on.' The prosecuting attorney objected to calling the character witnesses out of turn on the ground that the defendant had a prior conviction, which the State could show if defendant took the stand, but if the character witnesses were called before defendant took the stand the State would not be able to question the character witnesses as to their knowledge of prior convictions. The court ruled that the character witnesses could be put on out of turn, and that the State would have the right on cross-examination to ask them whether their opinion would be the same if they knew of the prior convictions. The two character witnesses, called, testified that appellant's general...

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17 cases
  • State v. Brooks
    • United States
    • Missouri Supreme Court
    • December 23, 1997
    ...a defense witness about alleged prior acts of misconduct on the part of the defendant if the state acts in good faith. State v. Hastings, 477 S.W.2d 108, 113 (Mo.1972); see Goree, 762 S.W.2d at 23. The state cannot fabricate allegations or rely on alleged acts that are known never to have o......
  • State v. Carter
    • United States
    • Missouri Supreme Court
    • October 10, 1978
    ...claim defendant may have had on this point was abandoned when defense counsel failed to object to their testimony, State v. Hastings, 477 S.W.2d 108 (Mo.1972), and later sought to recall the boys for further examination by the Finally, defendant asserts that "the trial court abused its disc......
  • Earney v. Clay
    • United States
    • Missouri Court of Appeals
    • November 7, 1974
    .... . . of a witness, none may be interposed on appeal.' Hildreth v. Key, 341 S.W.2d 601, 613(22) (Mo.App.1960); State v. Hastings, 477 S.W.2d 108, 111(4) (Mo.1972). No certain formula exists for judging the competency of a witness to give an opinion on real estate values, and qualification o......
  • State v. Harris
    • United States
    • Missouri Court of Appeals
    • August 4, 1981
    ...and the crimes inquired about ought not to be apocryphal, existing alone in the fertile fancy of a public prosecutor." State v. Hastings, 477 S.W.2d 108, 113 (Mo.1972) quoting State v. Willard, 192 S.W. 437, 440 (Mo.1917). The questions should not assume facts or be asked merely for the pur......
  • Request a trial to view additional results
1 books & journal articles
  • Section 8.4 When to Raise the Issue
    • United States
    • The Missouri Bar Evidence Deskbook Chapter 8 Competency of Witnesses
    • Invalid date
    ...the witness gives testimony, or the issue may be waived. Upshaw v. Latham, 486 S.W.2d 656, 659 (Mo App. E.D. 1972); State v. Hastings, 477 S.W.2d 108, 111 (Mo. 1972). It is important to make a specific objection when challenging competency. Caselaw indicates that a party can waive an object......

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