State v. Jackson

• Citation: 142 S.W.2d 45,346 Mo. 474
• Decision Date: 03 July 1940
• Docket Number: 36960
• Parties: The State v. Chester Jackson, Appellant
• Court: Missouri Supreme Court

142 S.W.2d 45

346 Mo. 474

The State v. Chester Jackson, Appellant

No. 36960

Supreme Court of Missouri

July 3, 1940

Appeal from Jasper Circuit Court; Hon. Ray E. Watson Judge.

Affirmed.

Ralph Baird and Russell Mallett for appellant.

(1) Refusal to permit Dr. A. Mitchell Gregg to answer questions concerning defendant's mental condition was improper and prejudicial and constituted reversible error. State v McCann, 47 S.W.2d 95; State v. Porter, 213 Mo 64; State v. Tarwater, 239 S.W. 486; State v. Morris, 263 Mo. 339; State v. Speyer, 194 Mo. 459. (2) When the court refused to permit Dr. A. Mitchell Gregg to testify as to defendant's mental condition for the reason that the Dr. Gregg had not made a recent examination of defendant, and was not sufficiently familiar with defendant's mental condition, the court was arbitrary and oppressive in the exercise of his discretion in refusing to allow the doctor five minutes, or a reasonable time to make an examination of defendant. State v. Lanaham, 144 Mo. 31; State v. Lewis, 9 Mo.App. 321; State v. Wade, 307 Mo. 291; State v. Richardson, 329 Mo. 812; State v. Lambert, 262 S.W. 58. (3) Although the evidence of defendant's mental condition which the court permitted defendant to show, was slight, yet as there was some evidence, the question of sanity or insanity should have been presented to the jury and it was error to refuse this instruction which defendant offered. State v. Morris, 263 Mo. 354; State v. Barbata, 80 S.W.2d 874; State v. Barker, 216 Mo. 532; State v. Caviness, 326 Mo. 992. (4) These may be considered together, as the instructions refused were to the effect that the defendant might be guilty of some lesser offense than first degree murder, because of his mental condition and it was error not to submit the question, by submitting these instructions to the jury. State v. McCann, 47 S.W.2d 101.

Roy McKittrick, Attorney General, and Tyre W. Burton, Assistant Attorney General, for respondent.

(1) The information is sufficient in form and substance. Sec. 3982, R. S. 1929; State v. Wilson, 231 S.W. 596. (2) The verdict is sufficient in form and is responsive to the charge. Sec. 3984, R. S. 1929; State v. Carroll, 232 S.W. 699, 288 Mo. 292. (3) The court did not err in refusing to admit the testimony of Dr. Gregg and to allow Dr. Gregg five minute's time to examine the appellant. Sanguinett v. May Department Stores Co., 65 S.W.2d 164; State v. Crisp, 126 Mo. 609, 29 S.W. 699; 64 C. J., p. 84, sec. 86; 16 C. J., p. 825, sec. 2088; State v. Morefield, 119 S.W.2d 315, 342 Mo. 1059. (4) It is not error to refuse instructions when there is no evidence to support them. State v. Brown, 79 S.W. 1111, 181 Mo. 220; State v. Boyer, 112 S.W.2d 581, 342 Mo. 64; State v. Mundy, 76 S.W.2d 1091; State v. Stanton, 68 S.W.2d 813. (5) The competency of evidence of threats is not affected by the nearness or remoteness to the offense. State v. Adams, 76 Mo. 355; State v. Shawley, 334 Mo. 352, 67 S.W.2d 86; State v. Hale, 141 S.W. 511; State v. Harrod, 15 S.W. 373, 102 Mo. 590. (6) Exclusion of witnesses from courtroom rests in sound discretion which will not be interfered with unless abused. State v. Hamilton, 340 Mo. 768, 102 S.W. 648. (7) A general assignment of error will not be reviewed by this court. Sec. 3735, R. S. 1929; State v. Hamilton, 123 S.W.2d 184; State v. Barnes, 204 S.W. 267, 274 Mo. 625. (8) The court did not err in submitting the instruction on murder in the first degree. State v. Kenyon, 126 S.W.2d 249.

OPINION

Ellison, P. J.

The appellant, a negro thirty-one years old, was convicted by a jury of murder in the first degree in the circuit court of Jasper County and his punishment fixed at death, for shooting and killing his paramour Daisy Esmond on August 3, 1938. He was tried once before on the same charge with the same result, but that conviction was reversed by this court in 344 Mo. 1055, 130 S.W.2d 595, because his application for a continuance had been overruled and the trial court failed to instruct on murder in the second degree. He is still faithfully represented by the same counsel who were appointed by the trial court at the beginning of the litigation. The commission of the homicide is not denied. The appellant did not testify. The defense was insanity or irresistible impulse. The errors assigned on this second appeal complain of the exclusion of testimony and the refusal of four instructions, all on that issue.

The appellant went to the house where the deceased was staying, jerked open a hooked screen door, shot her in the back in her bedroom, and also pointed his pistol at her sister and brother-in-law, both of whom were present. His face showed he was angry and he didn't take his eyes off the witness (the sister) after he pointed the pistol at her until he got ready to leave.

The testimony of three witnesses for whom appellant had worked at odd jobs over a period of years indicates he was a man of a rather low grade of intelligence but not out of the ordinary as such negro roustabouts go. He was given to cutting capers and playing around. For this reason one witness described him as being more or less childish, and another expressed the opinion that he didn't act like a man of his age but more like a big boy. However, he could do manual labor, such as janitor work, washing and greasing automobiles, and dock work, but he couldn't check freight and couldn't properly load freight. This was all the evidence introduced for appellant. His main assignment of error complains of the trial court's refusal to permit Dr. A. M. Gregg to testify as an expert witness in his behalf.

Dr. Gregg was a duly licensed physician who had engaged in the general practice of medicine at Joplin for 25 years, but was not a specialist in mental diseases. He testified he had treated appellant over a period of about five months for a bone disease in one leg when the latter was a boy ten to fourteen years old, which was 17 to 21 years before the trial; but had never examined him since, and had not seen him for two years, the last time being less than a year before the homicide. During the intervening 15 or 20 years he had seen the appellant off and on, knew him quite well, and had passed the time of day with him frequently. Thereupon appellant's counsel endeavored to elicit further testimony from the doctor as follows, proper exceptions being saved to all adverse rulings:

"Q. You have seen him since the time you treated him when he was a boy and you have passed the time of day with him, and you have observed his conditions, and your acquaintance because of that association with him and that treatment of him, and you are familiar with his mental condition are you not? A. Yes, sir.

"Q. Now, will you tell the jury what in your opinion his mental condition is? (Objection sustained.)

"Q. Are you from the association which I have named with him, and the treatment you have given him, are you, as a physician and surgeon, of the opinion that you knew also his mental condition on August 3rd, 1938?" (Objection sustained.)

The objections to the foregoing questions made by the prosecuting attorney (quoted substantially) were that "the question is too remote, the doctor having testified that he has not examined the appellant for seventeen years, and had never examined him to testify as to his condition of August 3rd, 1938." The objections being sustained, appellant's counsel made this offer of proof, which was rejected by the court:

"We offer to show by this testimony that even though the doctor hasn't treated the defendant, Chester Jackson, for seventeen years, we offer this testimony to show that as a result of the severe pain and fever attending his condition at that time that his mental condition was so arrested as to annihilate his mental and moral faculties."

Then appellant's counsel asked the court to give him five minutes "in which the doctor can examine the defendant, and again take the stand and have his testimony offered before the Court." Then the following occurred: "By the Court: The request will be refused. I want the record to show that the Court recessed at 11:15 this morning until 2:00 o'clock for the purpose of permitting the doctor to be present and testify. The Court feels that the Court cannot be further delayed when the examination could have been had, the defendant has been in the County Jail here some time, and he could have been examined at any time prior to the trial of this case. The Court further feels that five minutes would probably not be sufficient to make an examination or determine the mental condition of the defendant.

"By Mr. Mallett: Then we request for what the Court deems sufficient time.

"By the Court: The request will be refused.

"By Mr. Mallett: We also object to the ruling of the Court for the reason that the witness, Dr. Gregg, is a voluntary witness, he had not been paid anything for his services; that the defendant, Chester Jackson, is being defended by attorneys appointed for him by the Court because he has no money with which to employ counsel, and that we have never at any time had any money to secure an examination of the defendant by a doctor of his own choice, and thereby request the Court to permit us to have this opportunity -- to, as the first opportunity since the defendant, Chester Jackson, has been back in the County Jail on this charge. We further wish to object to the ruling of the Court for the reason that Dr Gregg, this morning, when the time was extended from approximately 11:30 to 2:00 o'clock was busy in the hospital with an operation, and could not possibly come to Court until 2:00 o'clock, and that the Court had recessed until that time and immediately upon Dr. Gregg's appearance Court was convened...