State v. Morris

• Decision Date: 04 January 1915
• Parties: THE STATE v. FERD MORRIS, Appellant
• Court: Missouri Supreme Court

172 S.W. 603

263 Mo. 339

THE STATE v. FERD MORRIS, Appellant

Supreme Court of Missouri, Second Division

January 4, 1915

Appeal from Pemiscot Circuit Court -- Hon. Frank Kelly, Judge.

Affirmed.

Ward & Collins for appellant.

(1) The court erred in overruling defendant's application for a reasonable postponement or continuance of this cause on account of the absent witness, Pete Meatte, and over the exceptions of the defendant at the time. Nichols v Grocery Co., 66 Mo.App. 323; Barnum v. Adams, 31 Mo. 534; State v. Lewis, 9 Mo.App. 321; State v. Anderson, 96 Mo. 241; McLane v. Harris, 1 Mo. 700; State v. Warden, 96 Mo. 648; Green v State, 110 S.W. 929; State v. Hesterly, 182 Mo 32. (2) The court erred in admitting incompetent, irrelevant and immaterial testimony on behalf of the State, and in rejecting competent, relevant and material testimony offered by the appellant. (a) A lay witness is competent to give evidence as to the weakness of mind of an accused person. Even insanity can be established by such witnesses. State v. Clinger, 46 Mo. 224; Crow v. Peters, 63 Mo. 429; State v. Erb, 74 Mo. 199; Turner v. Railroad, 23 Mo.App. 13; State v. Williamson, 106 Mo. 162; Sharp v. Railroad, 114 Mo. 94; State v. Schaefer, 56 Mo.App. 496; Moore v. Moore, 67 Mo. 192; Appleby v. Brock, 76 Mo. 414; State v. Bryant, 93 Mo. 273; State v. Porter, 213 Mo. 43. (b) When insanity is invoked as a defense in a criminal prosecution great latitude should be allowed in the investigation of that subject. State v. Porter, 213 Mo. 64. (c) It was clearly competent for defendant to show why and for what purpose he had the pistol on the occasion of the trouble, and also to show for what reason, before procuring the pistol, he requested H. Thompson to accompany him to the prosecuting witness. State v. Carter, 168 S.W. 679. The trial court committed error in not allowing defendant to show by divers witnesses his actions and conduct immediately after the alleged assault. It was competent as bearing on the defense of insanity. State v. Porter, 213 Mo. 43. (3) Instruction 8 is not authorized by the evidence; it tells the jury that the defendant did exhibit the pistol and did make the assault without leaving these facts to be found by the jury. There is no evidence in this case that the defendant's feelings were angered or that he was seeking revenge or that his acts were prompted by motives of hatred, disappointment or revenge. Hence, there was no evidence on which to base this instruction; it only served to advise the jury that the doings and conduct of the defendant grew out of excitement, passion, angered feelings, hatred and revenge and that this was not insanity. In other words, this instruction is tantamount to telling the jury that there is no question of sanity in the case, but that all of defendant's conduct was produced by motives of anger, hatred, revenge, etc. There being no evidence on which to base this instruction, it should not have been given. McAtee v. Vanlandingham, 75 Mo.App. 45; Kiethley v. Southworth, 75 Mo.App. 442; Plummer v. Miland, 79 Mo.App. 439; Wasson v. McCook, 70 Mo.App. 393. (4) Instruction 9 given by the court is clearly erroneous. The undisputed evidence shows that the defendant used this drug upon the advice of others in the hope of curing himself of the awful morphine habit. Therefore, his mental derangement by the use of this drug cannot be said to be voluntary on his part. State v. Porter, 213 Mo. 43; State v. Huttig, 21 Mo. 464. (5) The court erred in refusing instructions numbered 1 and 2 offered by the appellant. The pistol that the defendant had was used in the assault merely by presenting it. Now, was it a dangerous weapon? 2 Words & Phrases, p. 1828; United States v. Small, 27 F. Cas. 1128. A loaded gun that cannot be discharged is no more dangerous than an unloaded gun. State v. Godfrey, 17 Ore. 300; State v. Lynch, 82 Me. 195. (6) The prosecuting attorney, in the very outset of this case, in qualifying the jury on its voir dire, stated to the jury that the defendant had previously been tried for other alleged crimes, which tended to prejudice the jury against the defendant at the very outset and was gross miscondut on his part, and the jury should have been then and there dismissed as per defendant's request. Ensor v. Smith, 57 Mo.App. 584. (7) This case was closed by counsel for the State telling the jury that this was a "made-up and manufactured defense," and telling the jury what the Supreme Court of this State had said, and by telling the jury that defendant's defense of insanity was a confession of his guilt. This manner of trying an accused should not be tolerated in courts of justice in a civilized Nation. Such conduct was im proper and is reversible error. State v. Kyle, 168 S.W. 681; Beck v. Railroad, 129 Mo.App. 7; Nichols & Shepard Co. v. Metzger, 43 Mo.App. 607; Evans v. Trenton, 112 Mo. 390; Fathmann v. Tumulty, 34 Mo.App. 236; Haynes v. Trenton, 108 Mo. 123; McArthur v. Railroad, 123 Mo.App. 503. The prosecuting attorney went far beyond the limits of proper argument in asserting to the jury that the plea of insanity was a plea of confession. "A defense of insanity is not a plea of confession." State v. Porter, 213 Mo 43; Dean v. Chandler, 44 Mo.App. 338. (8) The court erred in modifying and changing the verdict of the jury by adding to it after the verdict had been returned the following words: "Exhibiting a pistol in a rude, angry and threatening manner." It cannot be said that the verdict as returned by the jury was merely informal. The verdict as returned by the jury was substantially defective in omitting to find the material issue, and such finding should have been the separate and independent finding of each of the twelve jurors. Henly v. Arbucle, 13 Mo. 209; State v. Steptoe, 1 Mo. 19; State v. Boyd, 196 Mo. 61. (9) The court erred in not compelling and requiring the State to elect at the close of all the evidence on which count it would stand. State v. Carrigan, 210 Mo. 351; State v. Duvenick, 237 Mo. 185; State v. Jackson, 17 Mo. 544; State v. Richmond, 186 Mo. 80.

John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.

(1) The verdict as returned by the jury finds the defendant guilty of exhibiting a pistol in a rude, angry and threatening manner as charged in the second count and assessed the punishment at two years in the penitentiary. Verdict is specific and certain and sufficiently indicates the count of the information under which the defendant was found guilty. (2) The court did not commit error in overruling appellant's application for continuance on account of the absence of witness, Pete Meatte. (3) It was immaterial where the appellant obtained the pistol that he is charged with having exhibited and it is immaterial whether or not the pistol could have been discharged, or whether or not the pistol was loaded. Sec. 4496, R. S. 1909, does not provide that it is unlawful to exhibit a loaded weapon, but provides that it is unlawful to exhibit firearms of any kind in a rude, angry threatening manner in the presence of one or more persons. (4) A lay witness, under the decisions of this court cannot state an opinion as to insanity without first having testified to the peculiar exclamations and actions upon which the opinion was based. In the application for continuance the appellant did not aver that the absent witness would testify to any such exclamations or actions. State v. Bell, 212 Mo. 111; State v. Speyer, 194 Mo. 459; State v. Bronstine, 147 Mo. 520; State v. Williamson, 106 Mo. 162. (5) The bill of exceptions does not show that exception was saved to the action of the court for refusal to sustain the application for continuance. State v. Miles, 253 Mo. 436; State v. Prather, 136 Mo. 25. (6) The court did not commit error in admitting incompetent, irrelevant and immaterial testimony on the part of the State, and relevant and material testimony offered by the appellant. The original question as asked would call for the opinion of a lay witness concerning the mental condition and notwithstanding the cases cited by the appellant it is improper to call for the opinion of a lay witness upon the question of insanity under the rules of this court, unless said lay witness shall first testify to exclamations and actions on the part of such insane person upon which the opinion of the witness is founded. State v. Williamson, 106 Mo. 162; Sharp v. Railroad, 114 Mo. 92; State v. Speyer, 194 Mo. 468. (7) The court did not err in refusing instructions 1 and 2, offered by appellant. The pistol was a firearm and its condition was immaterial. State v. Larkin, 24 Mo.App. 410; State v. Sebastian, 81 Mo. 514. These cases sustained the proposition that an unloaded pistol is a deadly weapon. (8) Neither the record nor the bill of exceptions shows that there was any improper conduct on the part of the prosecuting attorney's examination of the jury on the voir dire. The examination of the jury on voir dire does not appear and therefore is not before this court for review. In every instance where it is charged that the prosecuting attorney made prejudicial remarks before the jury no exceptions were saved by the appellant. State v. Cartrell, 174 Mo. 484; State v. McMullin, 170 Mo. 333; State v. Wright, 141 Mo. 333; State v. Hack, 118 Mo. 92; State v. Gibbs, 10 Mont. 213; Dunlap v. U.S. 165 Mo. 486; People v. Benham, 160 N.Y. 402. (9) It is perfectly proper for the court to put in proper form a defective verdict with the consent of the jury. Kelley's Criminal Law and Procedure (3 Ed.), sec. 410; Henly v. Arbucle, 13 Mo. 209; State v. Stepoe, 65 Mo. 640; State v. Chumley, 67 Mo. 41; State v. McAfee, 214 Mo. 284; Kreibohm v. Yancey, 154 Mo. 67; Buttron v. Bridell, 228 Mo. 622; ...