State v. Johnson
| Decision Date | 17 June 1942 |
| Docket Number | No. 37879.,37879. |
| Parties | THE STATE v. NELSON JOHNSON, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Henry Circuit Court. — Hon. Dewey P. Thatch, Judge.
AFFIRMED.
Herman Pufahl, Chas. H. Green, Jr., and Haysler A. Poague for appellant.
(1) The information was not properly signed and sworn to by the prosecuting attorney of St. Clair County and therefore was defective. R.S. 1939, sec. 3894. (2) The court erred in permitting the State to endorse the names of 13 additional witnesses on the information, on the morning of the trial over the objection of the appellant. (3) The evidence produced by the State to show the deceased was drunk was not competent as evidence on behalf of the State because it did not prove or tend to prove the commission of the crime of murder. State v. Cross, 27 Mo. 332; State v. Ramsey, 82 Mo. 133; State v. Edwards, 71 Mo. 312; State v. Todd, 116 S.W. (2d) 116; Kelley's Criminal Law and Practice (3 Ed.), p. 27, sec. 25; State v. Harlow, 21 Mo. l.c. 458. (4) The evidence produced by the State to show the demeanor and humor of the deceased on the day of the homicide and some two hours before the homicide was not competent as evidence on behalf of the State because it did not prove or tend to prove the commission of the crime of murder. State v. Baird, 231 S.W. 625. (5) The court erred in permitting, over appellant's objection, the State's witness, Herman Francis, to testify as to the manner in which appellant drove his car while in the village of Roscoe on the evening of the homicide. Kelley's Criminal Law and Practice (3 Ed.), p. 209; State v. Lockett, 168 Mo. 489. (6) The court erred in permitting the State's witness, Claude Roberts to testify, over the objection of the appellant, as to a threat which he claimed he had heard the appellant make in the spring of 1938 because the same was incompetent and too remote to be of any value. (7) The court erred in permitting the State's witness, Tom Hendrickson, after he had been impeached by appellant by showing a conviction, to testify that he had never been in trouble except when he was drinking. (8) The court erred in permitting, counsel for State, to cross-examine the witness Clarence McCalahan, over the objection of the appellant, as to the feeling between the appellant and deceased's wife. (9) The court erred in permitting counsel for the State to ask questions on cross-examination of the witness, Clarence McCalahan, as to the feeling of the witness toward the deceased. (10) The court erred in permitting the State, over the objection of the appellant, to cross-examine appellant's wife on matters which had not been brought out in chief and especially about trips that deceased made to appellant's home and as to the ill-feeling between deceased and appellant because the same was not inquired about on the examination in chief. R.S. 1939, sec. 4081. (11) The court erred in refusing to strike out the remarks of counsel for the State made in the presence of the jury to the effect that the evidence on drunkenness was admissible to show state of mind and on the issue of self-defense. State v. Cross, 27 Mo. 332; State v. Ramsey, 82 Mo. 133; State v. Edwards, 71 Mo. 312; State v. Todd, 116 S.W. (2d) 116; Kelley's Criminal Law and Practice (3 Ed.), p. 27, sec. 25. (12) The court erred in giving Instruction 1 on the part of the State. State v. Davis, 12 S.W. (2d) 426. (13) The court erred in giving Instruction 2 on the part of the State. State v. Davis, 12 S.W. (2d) 426. (14) The court erred in giving Instruction 3 on the part of the State. State v. Davis, 12 S.W. (2d) 426. (15) The court erred in giving Instructions 1, 2 and 3, on the part of the State, and over the objections of the appellant because Nos. 1 and 2 are contradictory to and with Instruction 3. State v. Davis, 12 S.W. (2d) 426. (16) The court erred in permitting counsel for State, in closing argument, over the objection of the appellant, to state to the jury, "I affirm in the presence of the jury, it convinces me at least, that it is the most dastardly act that was ever committed in our county since that was committed ..." because said remark of counsel evidences his own personal opinion and is not based upon the evidence and therefore was highly improper and prejudicial. State v. Hess, 144 S.W. 489, 240 Mo. 147; State v. Reppley, 213 S.W. 477, 278 Mo. 333; State v. Goodwin, 217 S.W. 264. (17) The court erred in permitting counsel for the State in closing argument, over the objection of the appellant, to refer to the fact that appellant had not testified as to certain facts while he was on the witness stand. State v. Fairlamb, 25 S.W. 895, 121 Mo. 137; State v. Newcomb, 119 S.W. 405, 220 Mo. 54; State v. Donaldson, 148 S.W. 79, 243 Mo. 460. (18) The court erred in permitting the wife of the deceased, over the objection of the appellant, to testify as to the family and children of the deceased because the same was irrelevant to any issue in the case. State v. Baublits, 27 S.W. (2d) l.c. 19.
Roy McKittrick, Attorney General, and Olliver W. Nolen, Assistant Attorney General, for respondent.
(1) The information properly charged murder in the first degree. The omission of official title on the signature of information and verification by the prosecuting attorney is not fatal. State v. Donnell, 18 S.W. (2d) 53; State v. Jennings, 34 S.W. (2d) 50, 326 Mo. 1085; State v. Majors, 237 S.W. 486; State v. Stokes, 232 S.W. 106, 288 Mo. 539; State v. Simmons, 58 S.W. (2d) 302, 332 Mo. 247; State v. Kenyon, 126 S.W. (2d) 245, 343 Mo. 1168; State v. Barr, 102 S.W. (2d) 629, 340 Mo. 738; State v. Goodwin, 61 S.W. (2d) 960, 333 Mo. 168; Secs. 3894, 3898, R.S. 1939. (2) The verdict is in proper form and finds appellant guilty of murder in the second degree. State v. Reagan, 108 S.W. (2d) 391; State v. Goodwin, 61 S.W. (2d) 960, 333 Mo. 168. (3) There was no error in permitting the State to endorse additional witnesses on the day of trial. There was no error in refusing to grant appellant continuance. State v. Kuebler, 14 S.W. (2d) 449; State v. Hefflin, 338 Mo. 236, 89 S.W. (2d) 938; State v. Lowry, 12 S.W. (2d) 469. (4) There was no error in sustaining the State's objection to appellant's question on the voir dire examination of the jury panel. Sec. 4061, R.S. 1939; State v.v. Hoffman, 125 S.W. (2d) 55, 344 Mo. 94; State v. Salts, 56 S.W. (2d) 21, 331 Mo. 665. (5) The State can show by competent evidence the condition, actions, threats and movements of the parties prior, during and immediately after the homicide. It is a part of the res gestae and it is not error as alleged in appellant's motion for new trial under points 6, 7, 8, 9, 10, 11, 13, 18, 19, 20, 21, 22 and 27. State v. Bowenkamp 39 S.W. (2d) 753; State v. Shawley, 67 S.W. (2d) 74, 334 Mo. 352; State v. Todd, 116 S.W. (2d) 113, 342 Mo. 601; State v. Crowley, 139 S.W. (2d) 473, 345 Mo. 1177; State v. Simmons, 58 S.W. (2d) 302, 332 Mo. 247; State v. Evans, 133 S.W. (2d) 389, 345 Mo. 398; State v. McAfee, 50 S.W. 82, 148 Mo. 370; State v. Raper, 42 S.W. 935, 141 Mo. 327; State v. Kennade, 121 Mo. 405, 26 S.W. 347; State v. Houston, 292 S.W. 728; State v. Stallings, 33 S.W. (2d) 914, 326 Mo. 1037. (6) It was not error in the manner in which the credibility of the witness Hendrickson was impeached. It is irrelevant but not a reversible error for the deceased's wife to testify as to the number of children, ages and other members of the family. State v. Ransom, 100 S.W. (2d) 294, 340 Mo. 165; State v. Baublits, 27 S.W. (2d) 16, 324 Mo. 1199. (7) The cross-examination of appellant's wife was confined to matters brought out in her direct examination. Appellant's allegations in points 16, 23, 26 and 32 are too indefinite to comply with the statute. Secs. 4081, 4125, R.S. Missouri, 1939; State v. Revard, 106 S.W. (2d) 906, 341 Mo. 170; State v. Hawley, 51 S.W. (2d) 77; State v. Kernek, 7 S.W. (2d) 432; State v. Bailey, 8 S.W. (2d) 57. (8) Apparently both the State and appellant offered testimony regarding difficulties over school matters prior to the homicide. Appellant waived his objections by offering testimony of the same nature. Instructions given in the case were proper. State v. Decker, 33 S.W. (2d) 958, 326 Mo. 946; State v. Glass, 300 S.W. 691, 318 Mo. 811; State v. Huett, 104 S.W. (2d) 252, 340 Mo. 934; State v. Flinn, 96 S.W. (2d) 506; State v. Sterling, 72 S.W. (2d) 70; State v. Young, 289 S.W. 29, 314 Mo. 612; State v. Davis, 12 S.W. (2d) 427; State v. Cain, 31 S.W. (2d) 559; State v. Crow, 141 S.W. (2d) 66, 346 Mo. 306; State v. Schnelt, 108 S.W. (2d) 377, 341 Mo. 241; State v. Nasello, 30 S.W. (2d) 132, 325 Mo. 442; State v. Messino, 30 S.W. (2d) 750, 325 Mo. 743. (9) The court did not err in permitting the attorneys for the State to refer to facts which appellant had failed to deny when testifying in his own behalf. State v. Pierson, 123 S.W. (2d) 149, 343 Mo. 841. (10) The evidence was sufficient. State v. Davis, 84 S.W. (2d) 930, 337 Mo. 411; State v. Simmons, 58 S.W. (2d) 302, 332 Mo. 247; State v. Westmoreland, 126 S.W. (2d) 202.
Appellant was charged by an information filed in the circuit court of St. Clair county, Missouri, with the crime of murder in the first degree. A change of venue was taken and the case was sent to Henry county, Missouri, where it was tried. Appellant was convicted of murder in the second degree and sentenced to imprisonment in the penitentiary for a term of twenty years. He appealed.
The sufficiency of the evidence to sustain the conviction was not questioned. The points relied upon for a reversal pertain to the admission of evidence, instructions given and statements made by the prosecuting attorney in his argument to the jury. The State's evidence supports the following narration of facts. Appellant was about thirty-four years of age and the deceased, Carl Gresham, was over fifty years of age. Both were married and...
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