State v. Lloyd

• Court: Missouri Supreme Court
• Writing for the Court: BOHLING
• Citation: State v. Lloyd, 87 S.W.2d 418, 337 Mo. 990 (Mo. 1935)
• Decision Date: 05 November 1935
• Parties: The State v. Terry Lloyd, Appellant

87 S.W.2d 418

337 Mo. 990

The State v. Terry Lloyd, Appellant

Supreme Court of Missouri

November 5, 1935

Appeal from Pemiscot Circuit Court; Hon. John E. Duncan Judge.

Reversed and remanded.

Claude F. Cooper, E. E. Alexander, McKay & Peal and T. J Crowder for appellant.

(1) The court erred in permitting the State to read to the jury, over the objections of defendant, the transcript of the testimony of Dr. W. A. Grimmett and Arch Lindsay, taken at the preliminary hearing of the defendant, for the reason that said transcripts were not signed by the witnesses and were not certified to by the justice of the peace, and for the further reason that it was not shown by the State that said witnesses were dead, had been subpoenaed, nor that the State had used due diligence to procure the attendance of said witnesses. Sec. 3480, R. S. 1929; State v. Barnes, 274 Mo. 625; State v. Bradford, 24 S.W.2d 993; State v. Harp, 6 S.W.2d 562. (2) The court erred in submitting to the jury the issue, whether or not the defendant struck the deceased with a dangerous weapon unknown, for the reason that it is not alleged in the information that the defendant struck the deceased with a "dangerous weapon or instrument," and for the further reason that all the evidence shows that the defendant did not use a weapon or an instrument of any kind but only struck the defendant with his fist; therefore, the court erred in submitting to the jury an issue of fact which was wholly unsupported by the evidence. State v. Harp, 6 S.W.2d 562; State v. Kauffman, 46 S.W.2d 847; State v. Gaters, 39 S.W.2d 548; State v. Cook, 44 S.W.2d 90; State v. Wampler, 58 S.W.2d 266.

Roy McKittrick, Attorney General, and W. W. Barnes, Assistant Attorney General, for respondent.

(1) There was substantial evidence to support the verdict. State v. Thomas, 318 Mo. 850; State v. Flynn, 258 Mo. 224. (2) Appellant waived his demurrer at the close of the State's case, in offering evidence. State v. Decker, 33 S.W.2d 961; State v. Meadows, 51 S.W.2d 1036; State v. Sanders, 4 S.W.2d 815. (3) The appellant's demurrer offered at the close of all the evidence was properly refused. State v. Schaeffer, 273 S.W. 249; State v. Harris, 324 Mo. 232; State v. Henke, 313 Mo. 626; State v. Turner, 274 S.W. 36; State v. Boesel, 64 S.W.2d 246. (4) The signatures of the witnesses appearing at the preliminary having been waived, the transcript may be introduced where the witness is out of the jurisdiction of the court. State v. Smith, 228 S.W. 1060; State v. Butler, 247 Mo. 694; State v. Barnes, 274 Mo. 631. (5) The proffered testimony was properly excluded because purely hearsay and self-serving. State v. Watson, 44 S.W.2d 134; State v. Wade, 307 Mo. 304; 12 Cyc. 427; State v. Nocton, 121 Mo. 552; State v. Moore, 156 Mo. 211. (6) The information is sufficient, and the instructions here challenged, conform both to the evidence and the information. Sec. 3563, R. S. 1929; State v. Sanford, 317 Mo. 872; State v. Spano, 6 S.W.2d 851; State v. Poor, 286 Mo. 654; State v. Beard, 68 S.W.2d 700; State v. McDaniel, 94 Mo. 303; State v. Grant, 152 Mo. 69; State v. Hauffman, 46 S.W.2d 848.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

Terry Lloyd was convicted in the Circuit Court of Pemiscot County for the murder in the second degree of Will Copeland, and appeals from the judgment and sentence imposing a punishment of ten years' imprisonment in accord with the verdict.

Will Copeland was the step-father of Terry Lloyd. They lived in Blytheville, Arkansas. From the evidence it appears that appellant, two of his sisters, Lonnie Boston and J. M. McDaniel left Memphis about six P. M., July 4, 1933, for the home of the younger sister in Blytheville in McDaniel's automobile. There was some evidence to the effect that deceased had assaulted appellant's younger sister, a girl of thirteen years. Arriving at Blytheville, they let the girls out at the home, and started back to Memphis. Will Copeland was seen standing on a street corner in Blytheville, and appellant, who was driving, stopped the car, got out, and, after talking to Copeland, appellant and Copeland entered the automobile. They then drove some distance out of Blytheville, across the state line and into Pemiscot County, Missouri. Appellant, stopping the car, went around to where Copeland was riding and, addressing him, said: "Doc, get out." Copeland got out of the car and appellant told him what he had done to his sister and said he was going to whip him. Thereupon, a fight ensued between appellant and deceased, some of the testimony, contradicted by appellant, being that appellant first struck and knocked deceased down. The combatants fought "all over the road and down into the ditch," and into some unfenced cotton rows adjacent to the highway. When the fight was over deceased ran into the cotton patch, and appellant and his companions turned around and returned to Memphis. The fight was of short duration. Appellant's evidence was that it was a fist fight. Deceased was found about the noon hour of July 5, 1933, about 150 yards from the highway in the cotton patch, and about three-fourths of a mile north of the Missouri-Arkansas state line at a point where the dirt had been stirred up as if there had been a struggle. Deceased had received injuries on his head and body and was unconscious. He died the following July 19th at the hospital in Blytheville. The attending physician testified that the cause of death was a concussion of the brain brought on by a wound received on the left forehead, sunburns and nephritis; that the sunburns could have resulted from exposure to the sun for from three to four hours under conditions existing on July 5, 1933; and that the nephritis was secondary and could have resulted from the sunburns.

The State offered in evidence the transcripts of the testimony of Dr. W. A. Grimmett and Arch Lindsay taken at the preliminary hearing. Appellant asserts error in the admission of the transcripts; because: (a) the witnesses had not signed the transcript of their respective testimony; (b) the transcripts were not certified to, and (c) there was no showing made of any effort on the part of the State to have the witnesses in court.

From the justice's transcript of the preliminary hearing, it appears that the affidavit for a State warrant charged appellant and his companions, McDaniel and Boston, with the offense. During the course of the preliminary, the State dismissed the charges as to McDaniel and Boston; and, according to the evidence adduced in connection with the offer of the transcript, at the close of the preliminary hearing, after some discussion, as some of the witnesses lived outside the State, it was agreed that the signatures of both the State's and appellant's witnesses were waived by the State and the appellant. Section 3480, Revised Statutes 1929 (Mo. Stat. Ann., p. 3115), provides "In all cases of homicide, but in no other, the evidence given by the several witnesses shall be reduced to writing by the magistrate, or under his direction, and shall be signed by the witnesses respectively." The transcript of the testimony of witnesses Grimmett and Lindsay was not signed. If the signatures were not waived, the transcripts were inadmissible [State v. Bradford, 324 Mo. 695, 700(1), 24 S.W.2d 993, 994(1)]. However, we have repeatedly held a defendant may waive his statutory rights. For instance, he may waive his right to a preliminary hearing [State v. Miller, 331 Mo. 675, 678(1), 56 S.W.2d 92, 94(1); State v. Ferguson, 278 Mo. 119, 129(2), 212 S.W. 339, 341(3), where a plea of not guilty in a murder case was held to waive the requirements that the evidence at the preliminary hearing be reduced to writing, signed by the witnesses certified by the magistrate, and delivered to the clerk of the court having cognizance of the offense]; or his constitutional right [Mo. Const., Art. 2, Sec. 22] "to meet the witnesses against him face to face" [State v. Wagner, 78 Mo. 644, 648, holding, where accused insisted on trial upon the State seeking a continuance on account of the absence of witnesses, his consent to the reading of a written statement of the absent witnesses to the jury waived this constitutional right; State v. Williford, 111 Mo.App. 668, 671, 86 S.W. 570, 572, and cases infra.] The signing of the transcript of his testimony by a witness is but an incident to the preliminary hearing. The signature or lack of one does not go to the merits of the preliminary or the trial, or affect the truth of the testimony thus adduced. Undoubtedly, appellant and the State had the right to waive this statutory provision.

An examination of the record discloses that the transcript of the proceedings at the preliminary hearing were certified as true and correct by the justice of the peace. Appellant's contention that it was not certified is without merit.

Appellant contends the transcripts of the testimony of the witnesses was inadmissible because there was no showing that the State made any effort to have the witnesses in court. The only evidence adduced on this phase of the issue was testimony establishing the residence of the witnesses in Blytheville, Arkansas. No occasion exists to review the authorities holding a transcript of testimony given at a prior hearing (at the preliminary or at the trial on the merits) is admissible, the accused being present at the hearing and afforded the right of examination or cross-examination, when it is shown that the witness has since died [State v. McO'Blenis, 24 Mo. 402, 69 Am. Dec. 435; State v. Barnes, 274 Mo. 625, 629, 204 S.W. 267, 268(2)]; or has become insane [State v. Pierson 337 Mo. 475, 85 S.W.2d 48, 53(5)]; or is without the State [State v. Butler, 247 Mo. 685, 694, 153...