State v. McCann, 31440.

• Citation: 47 S.W.2d 95
• Decision Date: 17 February 1932
• Docket Number: No. 31440.,31440.
• Parties: THE STATE v. ALBERT McCANN, Appellant.
• Court: United States State Supreme Court of Missouri

47 S.W.2d 95 THE STATE
v.
ALBERT McCANN, Appellant. No. 31440. Supreme Court of Missouri. Division Two, February 17, 1932.

[47 S.W.2d 96]

Appeal from Jasper Circuit Court. — Hon. R.H. Davis, Judge.

REVERSED AND REMANDED.

Emerson Foulke and W.J. Owen for appellant.

(1) The court erred in striking defendant's application for a change of venue from the files on the State's motion, the court holding in his judgment that the statute under which defendant made his application was a special statute and unconstitutional. The statute is attacked by the lower court and held by that tribunal to be a special statute and in violation of Article 4, Section 53, of the Constitution. Whether or not the lower court was correct in its holding depends entirely on what the courts of this State have based the distinction between a general and special law. State v. Marion County Court, 123 Mo. 427; Humes v. Railway Co., 82 Mo. 221; Burkholder v. Trust Co., 82 Mo. 572; Steele v. Railway Co., 84 Mo. 57; State v. Miller, 100 Mo. 439; State ex inf. v. Southern, 265 Mo. 286. Classification according to population is sufficient to render an act containing such a classification a general law. State ex rel. v. Taylor, 224 Mo. 477; Elting v. Hickman, 172 Mo. 257; State ex rel. Dickason v. County Court, 128 Mo. 427; Lynch v. Murphy, 119 Mo. 163; State ex rel. Roach, 258 Mo. 563; State ex inf. Crow v. Continental Tobacco Co., 177 Mo. 1; Crow v. Fleming, 147 Mo. 1; State ex rel. v. Mason, 55 Mo. 486; State v. Keating, 202 Mo. 197; State ex rel. v. Speed, 183 Mo. 186; Ex parte Lucas, 100 Mo. 218; State ex rel. Judah v. Fort, 210 Mo. 512; State v. Etchman, 189 Mo. 648; State ex rel. v. Yancy, 123 Mo. 391; State ex rel. v. Hughes, 104 Mo. 459. The court erred in not granting defendant's application for a change of a venue, it being the duty of the court to grant such a change of venue when all the provisions of the statute have been complied with. The record shows that defendant's application was never passed upon, but was stricken from the files by the order of the court because the statute was a special law and unconstitutional. If the application complied with the requisites of the statute, then it became mandatory upon the court to grant the change of venue. State v. Dyer, 285 S.W. 102; State v. Bradford, 285 S.W. 496; State v. Pool, 285 S.W. 726. (2) Defendant assigns error because the widow of the deceased was permitted to remain in the room during the progress of the trial and was permitted to cry at intervals and display her feelings to the jury. Defendant has the right to a fair and impartial trial and to be judged by the evidence given on the witness stand free from outside influence of every kind. The court refused to exclude the wife of the deceased from the room, and her presence and actions very materially prejudiced the jury against the defendant and influenced them in assessing his punishment at death. State v. Connor, 252 S.W. 722; 16 C.J. 810, sec. 2059. (3) Defendant assigns error because the court permitted Otis Wheeler to testify regarding, and to exhibit to the jury, a shoe heel off of a woman's shoe when there was no showing of any connection between defendant and said shoe heel, and could only have been evidence against his co-defendant. (4) It was error for the court to refuse the attorney for defendant the permission to state in his opening statement what he expected to prove in his defense as to the insanity of relatives of defendant, when said attorney stated first, that insanity was inherited by the defendant in a direct line, and then expected to state or offer to state that collateral relatives were also insane, the court holding that the attorney for defendant could not make a statement that he expected to introduce evidence as to the insanity being inherited in a direct line by defendant until said evidence had been actually introduced and admitted by the court, and the defendant was deprived of his right to have the jury know the outline of what his evidence would be, and also deprived the right given him by statute and very material to him. State v. Warren, 297 S.W. 403; State v. Simms, 68 Mo. 305; 32 C.J. 760; 12 C.J. 558; State v. Pagels, 92 Mo. 307; State v. Soper, 148 Mo. 234; State v. Baker, 246 Mo. 373. (5) It was error not to permit counsel for defendant to state that he expected to prove that the mother of the defendant was pregnant with the defendant and was carrying him at the same time when she was caring for an insane aunt, and that the mind of the defendant had been affected by her association with said aunt while she was in that condition. State v. Soper, 148 Mo. 234; State v. Baker, 246 Mo. 373; 16 C.J. 558. (6) It was error for the court to refuse to permit an expert witness who had an examination of the defendant, to state what his opinion as to defendant's sanity or insanity was, based on said examination. 16 C.J. 558; State v. Porter, 213 Mo. 60. The court refused to permit the expert, Dr. Romeiser, to state his opinion as to the character, nature and degree of defendant's mental condition, and to state in his opinion the character, kind of mind, responsibility of defendant for his acts and his ability to determine between right and wrong. Said opinion of said expert was of vital importance to defendant's defense. It is impossible for an expert witness to state categorically "yes" or "no" in answer to an involved question, and it is no less impossible for such a witness where the evidence is involved to answer any question as to defendant's mental condition either "yes" or "no" without any qualification. The court rejected every hypothetical question offered by the defendant to the witness, Roemiser. No reason was given for the refusal. The court exceeded his authority in refusing to permit the defendant to ask said questions. State v. Privitt, 175 Mo. 207; Lyons v. Met. St. Ry. Co., 253 Mo. 143; Witty v. Traction Co., 153 Mo. App. 429; State v. Ferguson, 278 Mo. 119, 212 S.W. 339; State v. Bell, 212 Mo. 111. Lay witnesses may state facts within their own information and then state their opinion as to the sanity of defendant based on said facts, and it is for the jury to determine whether the facts stated warrant them in having the opinion which they express. State v. Morriss, 263 Mo. 339; State v. Liolios, 285 Mo. 1, 225 S.W. 941. (7) If a witness attempts to place a different meaning on a word than that which the court understands it to mean, counsel has a right to explain the meaning of the word so that the witness can understand the question and so that his answer will be responsive to the question asked. Counsel for defense had the right to give the legal definition of "insane" to Dr. Romeiser, and to require an answer taking that meaning into consideration. It was not for the court to say if the witness understood the meaning of the word. Counsel may ask hypothetical questions based on the evidence or part of it and it is for the jury to determine whether the facts stated have been proved and if they support the opinion of the expert. 22 C.J. 722. Philpott v. Jones, 164 Iowa, 730, 146 N.W. 859. There was evidence in the case making the offense manslaughter. It is the duty of the court to instruct on every offense which the evidence in the case shows the act may have been. State v. Hoag, 232 Mo. 308; State v. Crabtree, 111 Mo. 136; State v. Musick, 101 Mo. 260; State v. Palmer, 88 Mo. 568. (8) The insanity of collateral relatives and of direct relatives is admissible for the purpose of showing the cause of insanity if said insanity is found to exist. The defendant introduced evidence to show, (1) his own insanity, (2) the insanity of his father, (3) the insanity of his grandmother, and (4) the insanity of the brothers and sisters of the father of defendant or the aunts and uncles of the defendant. Defendant, in his showing of insanity and the causes thereof, is not limited by the rules of evidence to show that he suffered from the exact species, kind or class of insanity that other members of the family suffered from. State v. Simms, 68 Mo. 307; State v. Warren, 297 S.W. 403; State v. Pagels, 92 Mo. 407; State v. Soper, 148 Mo. 234; State v. Baker, 246 Mo. 373; 16 C.J. 558. (9) It was error for the court to instruct, as it did by Instruction 12, that "insanity is interposed by the counsel of defendant as an excuse for the charge set forth in the information." State v. Liolis, 225 S.W. 948.

Stratton Shartel, Attorney-General, and L. Cunningham, Special Assistant Attorney General, and Ray Watson, Prosecuting Attorney, for respondent.

(1) The action of the court in denying the application as refiled was not error because the application and affidavits were not sufficient and did not state or show that the knowledge of the alleged prejudice came to the defendant after the last adjournment of the prior term of the court. State v. Boone, 70 Mo. 649. In order to save an exception to an adverse ruling of the trial court, on motion or otherwise, at a term when the cause is not tried, such exceptions must be saved by a term bill of exceptions, and that it is not sufficient to bring such exceptions into the final bill. Reineman v. Larkin, 222 Mo. 156; Richardson v. Association, 156 Mo. 407; State v. Ware, 69 Mo. 332; St. Louis v. Boyce, 130 Mo. 572; Asphalt Paving Co. v. Allman, 137 Mo. 564; State v. LaRue, 191 Mo. 192; State v. Boswell, 272 S.W. 983; Kline Cloak Co. v. Morris, 293 Mo. 478; State v. Lando, 300 S.W. 768. The provision made by the Laws of Missouri, 1911, p. 139, being now Sec. 1009, R.S. 1929, did not abolish the necessity for a term bill of exceptions. Kline Cloak Co. v. Morris, 293 Mo. 478; State v. Zugras, 306 Mo. 492; State v. Lando, 300 S.W. 767. (2) The application for change of venue made at the April term, was properly denied because the application had been passed on at the January term, and the question was res adjudicata. (a) The application as refiled was...