State v. Morris

• Decision Date: 12 May 1952
• Docket Number: No. 2,No. 42672,42672,2
• Citation: State v. Morris, 248 S.W.2d 847 (Mo. 1952)
• Parties: STATE v. MORRIS
• Court: Missouri Supreme Court

Page 847

248 S.W.2d 847

STATE v. MORRIS.

No. 42672.

Supreme Court of Missouri, Division No. 2.

May 12, 1952.

S. W. James, Jr., Jefferson City, for appellant.

J. E. Taylor, Atty. Gen., A. Bertram Elam, Asst. Atty. Gen., for respondent.

ELLISON, Judge.

The appellant was convicted in the circuit court of Jackson County of murder in the second degree and his punishment assessed by a jury at life imprisonment in the state penitentiary under sections 559.020, 559.030, RSMo 1949, V.A.M.S., for shooting and killing with a pistol one John Mack Nolen. His counsel assign here as error: (1) the admission at the trial of a photograph of the corpse of the victim, on the theory that it was gruesome and tended to inflame and prejudice the jury against the appellant, without having any tendency to prove any material fact in the case; (2) the giving of two alleged faulty instructions on appellant's defense of insanity; (3) failure to instruct the jury as to the form of their verdict in the vent they found the appellant to be insane at the time of the homicide; (4) improper argument by State's counsel referring to the appellant's failure to testify at his trial, and other improper argument which was inflammatory and prejudicial; (5) and that the only evidence on appellant's sanity or insanity at the time of the homicide preponderatingly showed him to be insane.

The outline facts were that about midnight on October 15, 1949, the appellant and his brother Aaron Morris were in a crap game at 2322 Michigan Street in Kansas City. The 'house man' was Haywood Nelson. As we understand all the parties assembled were Negroes. The appellant, who did not testify at the trial, gave a written statement to the police the day after the homicide, which the State introduced in evidence. In it he said he and Nolen got in an argument over a $2 bet in a crap game. Nolen claimed it was a $4 bet and that he had won it from appellant. Appellant denied that, asserting his $2 bet had not been with Nolen, but with a third man. Nolen threatened to collect the $4 later and left the house. Appellant and his brother Aaron quit the game 20 or 30 minutes thereafter. Nolen had waited outside across the street. He attempted to collect the money by force, reached for his back pocket and approached appellant. The latter drew his own revolver and gave warning, but Nolen continued toward him, whereupon appellant fired once, the bullet piercing Nolen's chest causing instant death. He fell on the ground by the sidewalk. The testimony of appellant's brother Aaron corroborated his confession and elaborated on it some.

With reference to appellant's first assignment that the trial court erred in admitting in evidence a photograph of the corpse of the deceased Nolen. After the prosecuting attorney had made his opening statement of facts counsel for the appellant reserved his opening statement [and, in fact, never did make a statement]. Thereupon the prosecuting attorney introduced the appellant's confession over his objection and three photographs of the corpse of the deceased, marked Exhibits 2, 3, and 4. The first two of these were taken at the scene of the homicide a short time after it occurred, showing the deceased lying on the ground by the sidewalk. No objection was made to them. But when the third photograph, Exhibit 4, was offered appellant's counsel made the objection that it was gruesome, tended to inflame the jury and did not tend to prove or disprove any material fact in the case. That photograph showed the corpse lying in an undertaking establishment stripped to the waist and disclosed a bullet wound in the chest.

Appellant's counsel cites in support of his contention the authorities listed below. ¹ And it is true that if the exhibition of gruesome photographs to the jury would serve no useful purpose in proving the crime, the trial court in the exercise of a sound discretion may exclude them. But in all the cases just cited they were admitted in evidence. And in this case they were admitted in these circumstances. When the trial began counsel for the appellant declined to make an opening statement, and objected to the introduction of his written confession on the ground that he had no counsel when he made it. In other words, at that stage of the case, appellant was putting the State on proof of the facts without any admissions. In these circumstances the admission of the photograph was not error.

Appellant's next briefed contention under two assignments is that instructions Nos. 8 and 11 given by the trial court on the defense of insanity were erroneous for specified reasons. But the only assignments in appellant's motion for new trial with respect to the instructions were assignments Nos. 12, 13 and 14, which merely charged in different forms that the verdict was contrary to the instructions. Under section 547.030 RSMo 1949, V.A.M.S., the motion for new trial in a criminal case 'must set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds or causes therefor.' This has been the law ever since the enactment of Laws Mo. 1925, p. 198, Sec. 4079. The foregoing assignments in the motion for new trial in this case wholly failed to do that, with respect to error in the instructions. In fact they did not complain of the instructions at all, but only that the verdict was contrary to them.

The next assignment in appellant's brief is that the court failed to instruct the jury as to the form of their verdict in the event the defendant should be found to have been insane at the time of the offense charged and to have subsequently become sane. That is true. The court did give an instruction No. 10 telling the jury that if they found the appellant not guilty on account of insanity they should so state in their verdict, and should also ascertain from the evidence and state in their verdict whether he had or had not entirely and permanently recovered from such insanity. And in an instruction No. 12 they were told that if they acquitted the appellant on the ground of insanity they might use the following form: 'We the jury find the defendant Oliver Morris not guilty on the ground that he was insane at the time of the commission of the offense charged, and further find that the defendant has not recovered from such insanity.' (Emphasis ours.) But there was no instruction telling them what the form of their verdict should be if they found he was insane at the time of the commission of the offense but had recovered from such insanity.

On this point appellant's brief cites sections 546.070, 546.510 RSMo 1949, V.A.M.S. and State v. Webster, Mo.Sup., 230 S.W.2d 841, 842(2); State v. Harris, 232 Mo. 317, 321, 134 S.W. 535, 536(3, 4). These decisions announce the general rule that where the trial court in a criminal case undertakes to instruct on a question of law arising therein, the instruction should guide the jury fairly and present both sides of the proposition, regardless of whether the attention of the court is called to the matter.

Of the two statutes, Sec. 546.070(4), supra, requires the trial court, whether requested or not, to instruct the jury in writing upon all the questions of law arising in a criminal case which are necessary for their information in giving their verdict. And Sec. 546.510 provides that when the defendant shall be acquitted on the sole ground that he was insane at the time of the commission of the crime, the jury shall so find and by their verdict shall further find whether he has entirely and permanently recovered from such insanity; and if they find he has so recovered he shall be discharged; but if they find he has not recovered the court shall order him sent to a State Hospital.

We are of the opinion that the trial court's failure to inform the jury in the instructions of their duty to find in their verdict whether appellant had recovered from his insanity, if any, was not fatal--despite that requirement in Sec. 546.510, supra. The statute by its terms is based on the condition that the jury acquit the defendant on the sole ground that he was insane when he committed the crime, which they did not do here. By their verdict they merely found him guilty and assessed the punishment, which, under the instructions was a negation of the fact that he was insane when he committed the homicide.

The fifth assignment in appellant's brief complains that two of the State's counsel, Mr. Stevens and Mr. Abrams, made pointed remarks and comments to the jury in their arguments concerning the appellant's failure to testify at the trial. It is true that Mr. Stevens in his argument to the jury did refer twice to the appellant's failure to testify. But as to the first reference no objection was made. As to the second the defense merely said 'exception'. And the motion for new trial is entirely silent on both. With reference to Mr. Abrams, appellant's brief cites the following part of his argument: 'The defendant admitted killing this man. He figured self-defense when he made the statement (the written statement to the police). That is in evidence. We had to put it in evidence. We knew Mr. Swearingen (appellant's counsel) wasn't going to put his client on the stand.' (Parentheses ours). Again there was no objection.

This obviously was a comment on the appellant's failure to testify, but in our opinion appellant failed to save the point in his motion for new trial. He relies on Assignment No. 17 in the motion which read as follows: 'Mr. Abrams' remarks to the jury were not supported by the evidence, were inflammatory and prejudicial. He called the defendant a killer. He misquoted the evidence of Aaron Morris and Raymond Morris (appellant's brothers). He stated to the jury 'all you have to do is to sign a verdict of guilty and write in life', contrary to the instructions of the court.' (Parenthesis ours). As will be seen this assignment does not complain of any references made by the State's counsel at any...