State v. Hicks

• Decision Date: 18 February 1928
• Docket Number: 28611
• Parties: The State v. Boat R. Hicks, Appellant
• Court: Missouri Supreme Court

3 S.W.2d 230

319 Mo. 28

The State v. Boat R. Hicks, Appellant

No. 28611

Supreme Court of Missouri

February 18, 1928

Appeal from Jackson Circuit Court; Hon. James H. Austin Judge.

Affirmed.

W E. Walsh and Eaton, Burroughs & Cavanaugh for appellant.

(1) The examination of jurors touching their qualifications to sit in criminal cases should be conducted with the utmost fairness and without a desire on the part of the State's representative to procure jurymen more favorable to the State than to the defendant. State v. Hudspeth, 159 Mo. 178. A juror who has formed and expressed an opinion is incompetent, though he may state on his qualification that he could give the defendant a fair trial. State v. Foley, 144 Mo. 600; State v. Culler, 82 Mo. 623; State v. Taylor, 134 Mo. 109. (2) It is not proper to permit the defendant in a criminal case to be cross-examined about matters not testified to on direct examination. State v. Grant, 144 Mo. 56; State v. Kyle, 177 Mo. 659. Under the statute defendant in a criminal case can only be cross-examined as to those matters referred to by him on his examination in chief. State v. McGraw, 74 Mo. 573; State v. Turner, 76 Mo. 350; State v. Douglas, 81 Mo. 231; State v. Patterson, 88 Mo. 88; State v. Brannan, 95 Mo. 19. The court erred in permitting the county attorney to examine defendant touching the letters he had written to the deceased May Erickson, nee Hicks. Also as to the letter written by the said deceased to George Hicks, son of the defendant, these matters being clearly outside the examination in chief. The defendant was cross-examined as to other matters not brought out in his testimony on direct-examination, all of which were highly prejudicial to the defendant. (3) The court erred in permitting the introduction of the letter written to George Hicks by May Hicks, the deceased. This letter was hearsay pure and simple. It related to matters not proper to be brought out and was wholly incompetent for any purpose. Statements of the deceased made long prior to the homicide, or letters written to third parties, or even to the defendant, could not be introduced against him on a trial for killing a third party. Defendant was not even being tried for killing the writer of the letter in question, but was on trial for killing Martin Erickson. Statements or declarations of third persons not made in the presence of, or authorized by the party to be affected, are hearsay, unless they are such as to constitute a part of the res gestae. Fougue v. Burgess, 71 Mo. 389; Dunn v. Altman, 50 Mo.App. 231; State v. McCoy, 111 Mo. 517; State v. Harris, 150 Mo. 56; Gordon v. Burris, 141 Mo. 602; State v. Bauerle, 145 Mo. 1. A postal card written by a stranger, and not addressed to one connected with a criminal prosecution, is hearsay, and inadmissible for any purpose against the defendant. State v. Mintin, 116 Mo. 605. A note found on the person of deceased is inadmissible in a prosecution for murder. State v. Punshon, 124 Mo. 448. Statements of the deceased in order to be admissible in evidence, must either be a part of the res gestae or made in articulo mortis. Deceased is not a party to the prosecution, and such evidence is hearsay. State v. Terry, 172 Mo. 213. After deceased was forced to marry the defendant and had refused to live with her, he brought suit against her for divorce. Held, that, on her subsequent trial for killing him two days thereafter, it was not competent to read this petition to the jury, since it was nothing more than verbal statements of deceased made in his lifetime, and was, therefore, incompetent for any purpose. State v. Kennedy, 177 Mo. 98. Hearsay evidence should be excluded whether offered by plaintiff or by defendant to meet plaintiff's hearsay. Allen v. Transit Co., 183 Mo. 411. (4) The oral testimony of a witness is not the best evidence to establish a public record, and such testimony should be excluded. Therefore the oral testimony admitted to establish the claim that May Erickson was divorced from Carter Roberts, October 9, 1924, was wholly incompetent. Martin v. Brand, 182 Mo. 116. The Act of Congress and the statute of Missouri provide that a judgment or court record of another State shall be proved or admitted in any other court within the United States by the attestation of the clerk and the seal of the court annexed, if there be a seal, together with a certificate of the judge that said attestation is in due form, and where the judge's certificate to the judgment fails to state affirmatively that he is the presiding judge of the court wherein the judgment was rendered, it is insufficient to authorize the admission of such transcript in evidence. Moyer v. Lyon, 38 Mo.App. 635; Williams v. Williams, 53 Mo.App. 617. (5) Instructions requested by defendant should have been given. Those relating to reasonable doubt cover phases of that question not contained in the instruction on reasonable doubt given by the court. Defendant's proffered Instruction 8 required the jury to find every fact necessary to constitute the crime charged beyond a reasonable doubt, and that if they had a reasonable doubt arising from the evidence as to the proof on any of such facts they should acquit the defendant. It is proper, on a trial for murder, to instruct the jury that they must find all the elements of either degree of the crime beyond a reasonable doubt before they can convict of either of such degrees. State v. Martin, 124 Mo. 514. (6) Instruction 9 offered by defendant required the jury to consider all the facts and circumstances in evidence, and if from all the facts and circumstances in evidence they had a reasonable doubt as to the defendant's guilt, they should acquit him. This is undoubted law and the defendant had a right to the instruction regardless of the instruction on reasonable doubt given by the court. That given by the court did not cover the question in that way. It is not sufficient that an instruction given by the State correctly defines reasonable doubt, though such an instruction is given, yet if the court refuses an instruction asked by defendant that he is entitled to an acquittal if the jury have a reasonable doubt of his guilt, is reversible error. State v. Farnum, 158 Mo. 149. The reasonable doubt which the law throws around the accused is a humane and beneficent rule in favor of life and liberty, and is too sacred to be whittled away by the encroachment of qualifying expletives. State v. Owens, 79 Mo. 619; State v. Young, 105 Mo. 634. (7) Instruction 16 requested by defendant defines fully the meaning of manslaughter. The court erred in refusing it, for the reason that the instruction given on that question on behalf of the State fails to define manslaughter, and especially as required under the facts of this case. If the homicide be committed under the influence of passion or in heat of blood, and is the result of temporary excitement by which control of the reason was disturbed, it is only manslaughter. State v. Holmes, 54 Mo. 153. Heat of passion is recognized by law, whether produced by a just cause of provocation or a lawful, adequate or reasonable cause. State v. Berkley, 109 Mo. 665. The passion which will reduce homicide to manslaughter is an excited state of the mind produced by some lawful provocation. State v. Ellis, 74 Mo. 207; State v. Grugin, 147 Mo. 39. The testimony of the defendant that deceased assaulted him, together with the statement of an eyewitness that he saw defendant and deceased engaged in a scuffle, is sufficient evidence of provocation to reduce the killing to manslaughter. State v. McKenzie, 177 Mo. 699. (8) Other instructions erroneously refused by the court relate to the marriage and the co-habitation of the defendant and the deceased May Hicks as husband and wife. It was proper to inform the jury of the law governing marriage, so they might determine whether the parties were married under the forms of law. In order to determine that fact, it was necessary that the jury know what constituted a legal marriage and the law concerning common-law marriage as well. The defense had proven the law of the State of Texas relating to common-law marriage and had established facts bringing the deceased and the defendant under that law. The effect was to show at least a common-law marriage and to meet the possible contingency of the marriage in the country of Mexico being illegal on account of May Hicks not having been divorced before that time. And it was certainly an important fact to go to the jury that the relation of husband and wife existed or had existed between them. Such facts would go far to explain and to palliate the conduct of defendant at the time of the homicide. (9) Counsel for defendant objected and excepted to certain remarks of the county attorney in arguing the case before the jury. The statements of the prosecutor were highly inflammable and extremely hurtful to the defendant before the jury. The reason that these remarks were so prejudicial to the defendant was because of the admission of the incompetent testimony contained in the letters and other evidence relating to the life of the defendant and the deceased May Hicks. For that reason we insist and urge upon this court that the admission of the testimony referred to constitutes the grossest error and should reverse this cause.

North T. Gentry, Attorney-General, and Smith B. Atwood, Assistant Attorney-General, for respondent.

(1) Even though a juror may have formed or expressed an opinion from reading newspaper accounts and general talk of the crime, if he states he can lay aside such opinion and render an impartial verdict according to the law and the evidence he is qualified. State v. Herring, 268 Mo. 514; State v. Garrett, 226 S.W. 4; State v. Woodard, 273 S.W. 1047; ...