State v. Messley

• Decision Date: 11 March 1963
• Docket Number: No. 49556,No. 2,49556,2
• Citation: 366 S.W.2d 390
• Parties: STATE of Missouri, Respondent, v. Johnnie W. MESSLEY, Appellant
• Court: Missouri Supreme Court

Page 390

366 S.W.2d 390

STATE of Missouri, Respondent, v. Johnnie W. MESSLEY, Appellant.

No. 49556.

Supreme Court of Missouri, Division No. 2.

March 11, 1963.

Rehearing Denied April 8, 1963.

Edward V. Sweeney, Monett, Frieze & Crandall, Carthage, for appellant.

Thomas F. Eagleton, Atty. Gen., William L. Hungate, Sp. Asst. Atty. Gen., Jefferson City, for respondent.

BARRETT, Commissioner.

Johnnie W. Messley, a retired air force sergeant whose hobby is firearms, has been found guilty of assault with malice with a deadly weapon and his punishment fixed at four years' imprisonment. V.A.M.S. Sec. 559.180. Throughout the trial Messley has been represented by experienced and resourceful counsel, therefore it is necessary to note but briefly the circumstances of the shooting and to consider only such assignments of error as have been properly briefed and argued upon this appeal. Sup.Ct. Rule 28.02, V.A.M.R.; State v. Mason, 339 Mo. 874, 98 S.W.2d 574; State v. Reese, 364 Mo. 1221, 274 S.W.2d 304.

Sometime after 11 o'clock and after 8, 10, or 12 beers since 3 o'clock in the afternoon, Johnnie left Sadie Wrobleski's beer tavern in Pierce City, got in his automobile parked in the rear parking lot and proceeded out Commercial Street to its intersection with Highway 60. There, Johnnie says, he stopped for a stop sign, traveled about two miles south on Highway 60 toward his home in Monett. But, realizing that he was being followed by Constable Gasche, he drove on until he came to a side road, turned around and 'went back from the way I came,' five or six miles into Newton County. Gasche was the constable in Pierce City and had been commissioned deputy sheriff by the Sheriff of Lawrence County. He had stopped Messley on two prior occasions, one of them resulting in his pleading guilty in Lawrence County to a traffic offense involving intoxicants. He had followed him about the streets of Pierce City on 12 or 15 occasions and, according to Johnnie, 'I could see that he had it in for me.' Gasche says that when Johnnie crossed Commercial street he did not observe the highway stop sign. When Johnnie realized that he was being followed, he 'slowed up enough that I could recognize him, why I just drove on; and he didn't follow me, he just slacked off. * * * I hadn't done anything, and he was on my back all the time; and I figured he didn't have no right to stop me when I wasn't doing nothing.'

In any event, instead of proceeding on to Monett and home, Jonnie turned his white Cadillac around and Gasche followed for about a mile and a half with his siren sounding and his red police light flashing. He stopped and when Gasche walked up Johnnie inquired what he wanted. Gasche said, 'I just want you to set here in the car until the other officers get here.' Instead of waiting Johnnie drove off and Gasche followed for five or six miles until, near the Smackout store in Newton County, a Monett police car drove in front of the Cadillac and again it stopped with Gasche's automobile in the rear, all three vehicles headed west. Then, this is Johnnie's version of what followed: 'They slowed up and all three cars stopped; and Mr. Gasche got out of his car and he was parked fairly close behind me, and I didn't get out or anything, and he walked up to the side and he had his revolver in his hand; and when he walked up to the side, I figured this was the time, and I shot him, when he walked up with a gun in his hand.' He says now that he did not intend to kill Gasche, that he saw the gun and was in fear of his life and 'I shot him before he could shoot me.' He does not claim that Gasche shot at him and he does not know how many shots he fired from the .25 caliber automatic after he took it out of the glove compartment. On the other hand, this is the contrary version of the shooting, the Monett police did not see a gun in Gasche's hand as he walked up to the Cadillac and Gasche says that he did not have his gun in his hand. He walked up to Johnnie's automobile and said, 'Get out of the car.' And then, with no words spoken, 'He just laid the gun over right on the door and went to shooting.' Three shots were fired from a clip of six shells and they all took effect in Gasche's right side and abdomen as he backed away and fell into a ditch on the south side of the road. Messley 'took off at a pretty good rate of speed' and for the first time Gasche drew his gun and fired three times as the automobile drove away. At least one of the Monett police officers also fired at the vanishing vehicle and one bullet struck Johnnie's shoulder. Subsequently, in Mt. Vernon, a highway patrolman and others said that after Johnnie had been arrested someone inquired as to Gasche's condition and Johnnie said 'he hoped the son-of-a-bitch died,' if he didn't 'he would have to do the job over again.'

It is not necessary to note the several inferences permissible from these circumstances, upon this appeal the serious objections are to the instructions and the facts are thus detailed in order that the instructions may be considered in context. There is one assignment of error concerned with testimony, more precisely with the refusal of the court to permit a certain line of cross-examination. After the close of the State's case the defendant again called Mr. Gasche and asked several questions designed to show bias or to embarrass if not impeach him. Then defendant's counsel inquired whether it was true that 'on a great many occasions you have followed Sadie Wrobleski late at night after she had closed her place up clear out in the county toward her home?' Then counsel inquired if in October 1960 he had not followed Lucy Looney out on Highway 37. The court sustained objections to these questions and then the defendant proposed to call Lucy Looney and prove that on one occasion Gasche had stopped her and had 'violently attacked and manhandled' her but offered to let her go 'provided he could have his way with her.' It is now urged that the court erred in excluding these questions and offers, that it was an improper restriction upon the right of cross-examination and that the proffered evidence was admissible to impeach Gasche.

Admittedly, counsel may in good faith ask discrediting questions for the purposes of impeaching the character of a witness. State v. Bagby, 338 Mo. 951, 964, 93 S.W.2d 241, 248. But when, as with the questions involved here, the inquiries relate to collateral matters counsel is bound by the answers and the latitude of such cross-examination is for the most part in the court's discretion. State v. Winn, Mo., 324 S.W.2d 637. There are several possible distinctions in the cases relied on but they need not be noted, as to extraneous collateral matters it is not permissible to impeach the witness by proof of a contrary fact. Here these two questions were not answered but the court permitted counsel to inquire fully into Gasche's previous arrests of Johnnie, and his following him on various occasions. The defendant was also entitled to ask questions designed to test Gasche's veracity or accuracy and thereby shake his credibility by injuring his character. But there was no manifest prejudicial abuse of discretion in the court's refusing permission 'to go into collateral specific incidents, remote from the day of the shooting of deceased.' State v. Brotherton, Mo., 266 S.W.2d 712, 715; State v. Hewitt, Mo., 259 S.W. 773, 782; State v. Dees, Mo., 276 S.W.2d 201.

As to instructions, the first objection is to given instruction 11, one of a series of 14 given instructions: 'The jury are instructed that the law of self-defense does not imply the right of attack; and if you believe from the evidence, beyond a doubt, that the defendant shot J. Y. Gasche unnecessarily, and when he did not have reasonable cause to believe that J. Y. Gasche was then about to kill him, or to do him some great bodily harm or some personal injury, then there is no self-defense in the case, and you cannot acquit the defendant upon that ground.' The objection is to the phrase 'that the law of self-defense does not imply the right of attack.' Specifically it is said that this particular phraseology in the instruction 'unduly narrowed, restricted and limited his right of self-defense in view of the testimony surrounding the shooting in question.'

As the State points out, there were at least two other instructions dealing directly with the subject of self-defense and there is no objection to them. In the...