State v. Hulbert

• Decision Date: 11 June 1923
• Docket Number: No. 24180.,24180.
• Citation: 299 Mo. 572,253 S.W. 764
• Parties: STATE v. HULBERT.
• Court: Missouri Supreme Court

253 S.W. 764

299 Mo. 572

STATE v. HULBERT.

No. 24180.

Supreme Court of Missouri, Division No. 2.

June 11, 1923.

Rehearing Denied July 14, 1923.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

Martin A. Hulbert was convicted of murder in the first degree, and he appeals. Affirmed.

Thos. J. Rowe, Jr., and Henry Rowe, both of St. Louis, for appellant.

Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Asst. Atty. Gen., for the State.

WALKER, J.

Appellant was indicted in the circuit court of the city of St. Louis for murder in the first degree. Upon a trial he was convicted, and his punishment assessed at life imprisonment in the penitentiary. From this judgment he appeals.

On the 25th day of July, 1919, Otto Bauer was shot and killed in said city, when he was in the act of checking up the accounts and counting the money in a grocery store of which he was the auditor or supervisor. It was about 7:30 o'clock p. m. when a man, subsequently identified as the appellant, rushed into the store, and, stepping behind a halfgrown girl who happened to be there, he shot Bauer twice, killing him instantly, and grabbing part of the money which Bauer had laid on the counter he fled. The store was well lighted at the time, and the appellant was subsequently identified as the murderer by several witnesses who either saw him at the scene of the crime or when fleeing therefrom. His defense was an alibi. In addition to his own testimony, one witness stated that he was with the appellant at a saloon some six or seven blocks from the place where the murder was committed until about 7 o'clock that evening. The crime was shown to have been committed at about 7:30 o'clock p. m. The unsavory reputation of appellant, who testified in his own behalf, for general morality was shown. We will consider the errors assigned in the order of their submission.

I. There was substantial evidence that the appellant committed the crime, and, following our former ruling upon the question of an alibi when this case was before us on a former appeal (228 S. W. 499), we hold that the finding of the jury as to this phase of the case is final, and we will not disturb the same.

II. Katie James, who was in the grocery store at the time of the murder, had testified at the former trial on behalf of the state. She was not so called or examined at the present trial, but was introduced and examined as a witness for the appellant. On her direct examination she testified that she could not identify the appellant as the man who fired the shot at the grocery store which killed Bauer; that this was more than she could answer; that she did not know. A further inquiry elicited a like response. Her former testimony was then submitted to her, and she was asked to state whether her reading or examination of the same refreshed her memory as to what she said at the first trial with reference to the appellant being the man that fired the shot at the store. This inquiry was persistently made and objections thereto sustained, which rulings are assigned as error. It is somewhat difficult, under the well-recognized rules of evidence, to determine upon what theory it was sought by the appellant "to refresh her memory," as it is termed by counsel for the defense, as to what she had said at the first trial. That was not the issue, but what, with her memory refreshed, she would then testify to. She had not testified adversely to the appellant. She was his witness. A party who makes a witness his own on one hearing is in no wise bound by his testimony or held to sustain a like relation to him on a subsequent trial, although the parties and the subject-matter at both hearings are the same. Cudworth v. So. Car. Ins. Co., 4 Rich. (S. C.) 416, 55 Am. Dec. 892; 7 Encyc. Ev. p. 39 and notes. Nor does one make a witness his own within the rule limiting the right of impeachment by summoning the witness (Milton v. State, 40 Fla. 251, 24 South. 60); nor by simply putting him on the witness stand and causing him to be sworn (Ayers v. Railroad, 190 Mo. 228, 88 S. W. 608; Harris v. By., 115 Mo. App. 527, 91 S. W. 1019; Musick v. Ray, 3 Mete. [Ky.] 427); nor by only asking him immaterial questions when put upon the stand. (Bebee v. Tinker, 2 Root [Conn.] 160). The test as to whether a witness is one's own, or not, so as to limit the right of cross-examination for the pur'case of impeachment, is, was he called and examined upon a material issue by the party seeking to impeach him? If so, such party cannot impeach him by the proof of precedent variant statements. This salutary mile is based upon the theory that one who places a witness upon the stand vouches for his credibility and will not be permitted to gainsay the same. Having testified, as the witness did at bar, that she could not identify the appellant as the murderer, did not render her adverse or hostile to the extent of authorizing her impeachment by the appellant. State v. Bowen, 263 Mo. loc. cit. 282, 172 S. W. 367. To render her subject to impeachment it was not enough that she failed or refused to tell all of the facts theretofore related, but that she relate contradictory facts or in effect becomes a witness for the prosecution. State No. Bowen, supra, and cases; State v. Drummins, 274 Mo. loc. cit. 647, 204 S. W. 271; State v. Burks, 132 Mo. 363, 34 S. W. 48. Not only is the rule as to the impeachment of one's own witness buttressed by the rulings of our own courts of last resort, but our statute (section 5414, R. S. 1919) gives affirmative recognition to same in limiting cross-examinations to the party to a suit against whom a witness has been called and who has given some evidence in the case. As shown, no fact stated by Katie James upon her examination by the appellant tended even remotely to establish his guilt. It was innocuously negative. Her testimony therefore could have neither surprised nor misled the appellant to his detriment. If she had identified the appellant as the murderer at the former trial, it was within the province of the state to show this fact to affect her credibility, but certainly it will not be contended that appellant was prejudiced in being deprived of the privilege of making this proof, the result of which would have been to aid in adjusting a noose for his own neck. There is therefore no merit in this contention.

III. The course pursued by counsel for the state in the cross-examination of the witness, Katie James, concerning her testimony before the grand jury in identification of the appellant as the man who fired the fatal shot, is not to be commended, but on the contrary disapproved. Despite the unnecessary and unwise presentation of this cross-examination, it resulted in eliciting no fact...