State v. Hatcher
| Decision Date | 04 March 1924 |
| Docket Number | No. 25204.,25204. |
| Citation | 303 Mo. 13,259 S.W. 467 |
| Parties | STATE v. HATCHER. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Nodaway County; John M. Dawson, Judge.
Jesse Hatcher was convicted of driving an automobile while he was intoxicated, and he appeals. Affirmed.
Wright & Ford, of Maryville, for appellant.
Jesse W. Barrett, Atty. Gen., and Allen May, Sp. Asst. Atty. Gen., for the State.
Defendant was convicted of the crime of driving an automobile while in an intoxicated condition. The jury imposed the punishment at confinement in the penitentiary for two years and six months. Defendant has appealed. The statute on which the information is based is section 27 (g), Laws of 1921, p. 103 (First Extra Session).
The evidence relied upon to sustain the judgment tends to show the following facts: About 6:30 on the evening of July 15, 1922, the defendant, in company with one Merle Buie, was driving a Ford automobile upon the public highway near Graham, in .Nodaway county, when such automobile was overturned. Buie was killed, and defendant was found standing in the road beside the car a few minutes afterward. He had been injured and his head was bleeding. Two whisky kegs and some broken bottles were found near by. The kegs gave evidence of having been recently emptied. These and the smell of whisky upon defendant's breath and in the local atmosphere are part of the evidence relied upon to prove the intoxicated condition of defendant. Witnesses also gave their opinions that defendant was intoxicated. Just before the accident a witness saw a Ford automobile moving west" on the road in front of his farm and thereafter heard what he thought was a blow-out. Upon investigation, he found the same automobile wrecked as above stated. The same automobile was seen going in the direction of the wreck by another witness a short time before. When this witness first saw it, he thought it was moving at a rate of 30 or 35 miles an hour. The automobile was swerving dizzily from one side of the road to the other.
The defendant did not testify. He does not here press the point, made below, that no case was made to go to the jury. We think the evidence was sufficient to make a showing of the intoxicated condition of the defendant at the time and otherwise sufficient to make out a case for the consideration of the jury.
I. We are met at the outset by the suggestion of the learned Attorney General that there is nothing before us except the record proper. It is said that the purported bill of exceptions is not included in the transcript certified by the circuit clerk, has not been authenticated in any manner, nor called for in said transcript, nor referred to as an exhibit attached to said transcript, and therefore it cannot be considered by us. He cites and relies upon State v. Graham (Mo. Sup.) 247 S. W. 194; State v. Griffin, 249 Mo. 624, 155 S. W. 432, and State v. Bockstruck (Mo. Sup.) 192 S. W. 404.
The transcript of the record entries contains the following:
"Comes now the defendant and presents his bill of exceptions which are examined by the court, and same are approved and ordered filed and made a part of the record in this cause, which is accordingly done."
This entry was made by the trial judge in open court on May 12, 1923. The above recital of the transcript is followed by the certificates of the clerk that said transcript "is a true, full and complete transcript of all the records and proceedings of the Nodaway county circuit court in the cause therein mentioned, together with, a true and complete copy of the original bill of exceptions," etc. (Italics ours.)
Said transcript comes to us attached by metal clips to a document entitled "Bill of Exceptions" in the case of State of Missouri v. Jesse Hatcher in the Circuit Court of Nodaway County, Missouri, at the regular September term, A. D. 1922. The names of the trial judge and the prosecuting attorney have been filled in with pen and ink, apparently in the same handwriting. The transcript and the purported copy of the original bill of exceptions were both filed in this court on October 4, 1923.
It would doubtless have been better if the circuit clerk had used in his certificate, after the phrase "together with a full and complete copy of the original bill of exceptions," the words "hereto attached," or words of similar import; or if he had made and attached to the bill of exceptions his separate certificate of true copy of the original bill of exceptions previously approved and ordered filed by the trial judge, or if he had bound the two documents together securely. However, no one examining the transcript and the purported bill of exceptions, insecurely, but at least physically, attached to it, under the circumstances above detailed could have the slightest doubt that such purported bill of exceptions is actually the bill of exceptions referred to in the record entry made by the trial judge.
In the cases cited by the learned Attorney General the recitals in the clerk's certificate were not as full as they appear in the case at bar. In the Graham Case the transcript contained the recital of the approval and filing of a bill of exceptions. We quote from the opinion:
In the Graham Case the clerk apparently made no certificate of any sort concerning the correctness of any bill of exceptions or copy thereof.
In the Griffin Case the purported copy of the bill of exceptions was not authenticated by the signature of the trial judge. The same situation is shown to have existed in the Bockstruck Case. Under the circumstances in the case at bar, above outlined, we must hold that the bill of exceptions is sufficiently authenticated and identified.
II. The first assignment of error is that the trial court improperly admitted the testimony of Charles Buie and erred in refusing to strike out said testimony on defendant's motion. The assignment made here appears to be based upon the proposition that the use of the father of deceased as a witness, when his testimony related to irrelevant and immaterial matters, was calculated to inflame unduly the minds of the jury against defendant.
An examination of the bill of exceptions discloses that no objection was made to the use of Charles Buie as a witness for any reason whatever, and further discloses that only three specific objections were made to questions asked him by the state. The first objection was lodged against a question concerning the members of the family of the witness, which included the deceased's son. The objection was that "it is incompetent and irrelevant." The second objection made was directed to the question concerning when witness had seen deceased that day. No specific ground of objection was stated, and the objection was therefore too general to be considered here. The final objection was lodged against a question and answer showing that the last time witness saw the deceased on the day of the accident was at the undertaking office. After this question had been asked and answered, the following occurred:
This witness had previously testified without objection of any sort that he had seen his son at the undertaker's. After the witness had finished his testimony, the following occurred:
The final motion apparently was directed to the whole of the testimony of the witness. There does not appear any objection whatever to the use of. Charles Buie as a witness, and for that reason we cannot consider whether the trial court erred in permitting him to testify. He was clearly a competent witness upon relevant and material matters. Objections to specified parts of his testimony must therefore be judged by the same rules which are applicable to the testimony of a witness not related to the deceased.
The fact that Merle Buie was killed in an accident appeared from the testimony of other witnesses and was even the subject of cross-examination by counsel for defendant. That fact could not well have been kept from the knowledge of the jury. The situation at the point of the accident, including the presence of the body of Merle Buie, was all part of the res gestæ, as we will point out hereafter. Proof of the fact that deceased was a member of the family of the witness, and that witness saw his body at the funeral parlor, was not necessary to the case; but we are not prepared to say that the trial court committed reversible error in permitting obvious facts to be proven, to wit, that deceased was a member of some family and that his body was necessarily cared for after his death.
The purpose of the state in using deceased's father may have been to dress the stage. Trial courts should carefully guard defendant's rights during the trial and not...
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