State v. Hope

• Decision Date: 22 March 1890
• Citation: 100 Mo. 347,13 S.W. 490
• Parties: STATE v. HOPE.
• Court: Missouri Supreme Court

13 S.W. 490

100 Mo. 347

STATE v. HOPE.

Supreme Court of Missouri.

March 22, 1890.

CRIMINAL LAW — WITNESS — DELIVERY OF VERDICT.

1. Under Rev. St. Mo. 1879, § 1907, which declares that "the provisions of law in civil cases, relative to compelling the attendance and testimony of witnesses," and their examination, "shall extend to criminal cases so far as they are in their nature applicable thereto," exceptions to the admission of testimony in a criminal case cannot be considered when the reasons for excluding it were not stated to the court with the objection.

2. Where a witness in a murder case has been questioned as to the general reputation of accused, without any objection that the question did not fix the time as that of the murder, his answer will not be excluded from the jury on that ground.

3. When defendant has cross-examined a witness, he cannot object, on motion for new trial, that the witness was not sworn, where there is nothing in the record to show when the fact was discovered by defendant.

4. Rev. St. Mo. 1879, § 1891, which provides that the verdict of the jury may be received by the court, and be entered upon the records in the absence of the defendant, when such absence is willful or voluntary, and shall have the same force and effect as if received and entered in the presence of such defendant, is not in conflict with Const. Mo. 1875, art. 2, § 22, which provides that "in criminal prosecutions the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him, face to face."¹

Appeal from circuit court, Scotland county; BEN. E. TURNER, Judge.

This cause is here upon an indictment, in the usual form, charging defendant with an assault upon Walker Hale with intent to kill. He was convicted of unlawfully assaulting, stabbing, and wounding Hale, and was sentenced in accordance with that verdict. He then appealed to this court, after the customary motions. The evidence on the part of the state tended to prove that defendant and Hale had an altercation on the public road, during the course of which defendant inflicted certain wounds on Hale with a knife. That there was abundant testimony to support the verdict is not denied. The defendant relied upon self-defense, and, furthermore, offered evidence of good general reputation as a peaceable and quiet boy, as well as for veracity. In this branch of the case, during the examination of a witness for defendant, the following questions on his behalf were asked, and answers given: "B. Riley, sworn on the part of the defendant. Direct examination. (1) Do you live in the neighborhood of Mr. Hope? Answer. Yes, sir. (2) Are you a relation of his? A. No, sir. (3) How long have you lived there? A. I have lived there, within a half of a mile, for ten or twelve years. (4) Have you been acquainted with the family? A. Yes, sir. (5) Are you acquainted with his reputation for truth and veracity in the neighborhood? A. Yes, sir. (6) Is it good or bad? A. I think it is good. (7) Are you acquainted with his reputation as being a quiet and peaceable boy? A. It is considered good." In rebuttal, the state offered some evidence regarding defendant's reputation, in the course of which the question (referred to in the opinion) arose on a motion to exclude a part of the testimony of witness Zugg. The passage from the record presenting this point is as follows: "Ernest Zugg, recalled on the part of the plaintiff. (1) Are you acquainted in the neighborhood in which the defendant, Gustus P. Hope, resides? Answer. Yes, sir. (2) Are you acquainted, in the neighborhood in which he resides, with his general reputation as to being a quiet, law-abiding boy? A. Yes; I guess I am. By the Court. Is his general reputation good or bad? A. I don't know what general reputation is. I don't know what you mean. By the Court. It is the estimation in which he is held by the people generally. Is that general reputation good or bad? A. I don't know what you call good or bad. (3) What is the estimation of him? A. It is quarrelsome. (Objected to.) By the Court. That will not do. By the Court. General reputation consists in the estimation in which a man is held by the people generally. (4) They were relatives of Mr. Hale's? A. Not all of them wasn't. (5) Wasn't it a fact that this talk was from the relatives of Mr. Hale? A. I don't know that it was; it wasn't all from them. (6) Wasn't the principal talk that you heard from them? A. I don't know but one family that were relatives. Here Mr. Smoot (counsel for defendant) asks that the court exclude all this testimony from the jury, as not being founded on any time with reference to this difficulty. By the Court. Objection overruled. To the said action of the court, in not excluding the said testimony from the jury, the defendant, by his counsel, did then and at the time except." Another witness (Mr. Goslin) for the state was examined on the same subject, and the following questions asked, and answers made, without any objection or exception: "(5) Are you acquainted with his general reputation for peace and quiet in the neighborhood in which he lives? Answer. Yes, sir; I am. (6) Is it good or bad? A. It is bad." The opinion states the other facts bearing upon the questions discussed in it.

Smoot & Pettingill and R. F. Walker, for appellant. Attorney General, for the State.

BARCLAY, J., (after stating the facts as above.)

The points made by defendant upon the rulings of the trial court on the evidence are not well taken.

1. Most of these rulings were made over objections to testimony which assigned no ground or reason for excluding it. Section 1907 of our statutes concerning criminal procedure (Rev. St. 1879) declares that "the provisions of law in civil cases, relative to compelling the attendance and testimony of witnesses, their examination, the administration of oaths and affirmations, and proceedings as for contempt, to enforce the remedies and protect the rights of parties, shall extend to criminal cases, so far as they are in their nature applicable thereto, subject to the provisions contained in any statute." This has been a part of the law of Missouri from a date as early, at least, as 1835. It has been re-enacted repeatedly in the various revisions of the statutes that have taken place since then. Its language to-day is substantially, if not indentically, the same that it has been for some 50 years. Rev. St. 1835, (3d Ed.) p. 490, § 15; Rev. St. 1845, p. 880, c. 138, § 16; Rev. St. 1855, p. 1191, c. 127, § 18; Gen. St. 1865, p. 850, c. 213, § 17; Rev. St. 1879, § 1907; Rev. St. 1889, § 4207. In civil cases it has been uniformly ruled by this court, from a very early period of its history, that it is not sufficient, for the purposes of review, to object generally to improper testimony when offered, but that the grounds must be stated to the court with the objection. Fields v. Hunter, (1843,) 8 Mo. 128; Roussin v. Insurance Co., (1851,) 15 Mo. 244; Clark v. Conway, (1856,) 23 Mo. 438; Railroad Co. v. Cox, (1862,) 32 Mo. 456; Lohart v. Buchanan, (1872,) 50 Mo. 201. That rule has thus become a fixed part of our jurisprudence governing the trial of civil causes, and must be regarded as having been in contemplation of the law-makers when the revision of the statutes alluded to occurred. Section 1907, Rev. St. 1879, should therefore be considered as having been re-enacted from time to time with the then prevailing rule relative to the examination of witnesses in civil cases as part of it, in accordance with an established principle of interpretation of laws. Sanders v. Anchor Line, 97 Mo. 27, 10 S. W. Rep. 595. We hence consider it necessary in criminal, as well as in civil, causes for a party, objecting to the admission of testimony, to state opportunely the reasons for the objection in order to preserve the ruling for review, should it be adverse to the objector. If the ruling be favorable to the latter, however, and thus the evidence be excluded, generality in the objection would furnish no cause for reversing the ruling of the trial court. It would be sustained, if defensible on any grounds. In State v. O'Connor, 65 Mo. 374, views are expressed somewhat at variance with those above indicated. In so far as they conflict, that decision should no longer be regarded as authoritative.

2. Referring to the other rulings of the trial court on the evidence, as to some no exceptions were saved, which precludes reviewing them, as this court has often held; and as to others the objections were interposed too late, — that is to say, after the testimony had been admitted, unchallenged, in response to pertinent questions. A party cannot, in general, demand the exclusion of evidence called out in fair response to questions asked without objection. Nothing exceptional is shown here affecting the application of that rule. When the legal objection to testimony is not apparent from the question that educes it, but is developed later in any way, (for instance on cross-examination,) the omission to object, at the time it came in, is no waiver of the right to have it excluded. It is only when the exceptionable nature of the testimony has become apparent that the failure to object may constitute a waiver of objection. The reason of this rule is thus stated in a recent case: "To allow a party to permit, without objection, the admission of evidence, and for the first time make his objection in instructions, would be intolerable practice. If he had an opportunity to interpose an objection, he cannot take the chances that the testimony will be favorable to him, and when it turns out otherwise raise his objection, but must be held to have waived it." Maxwell v. Railway Co., (1884,) 85 Mo. 95. The rule itself merely involves an application of the principle frequently declared of late, that, on appeal, parties are bound by the theories of law they asserted or...