State v. Murrell

• Decision Date: 25 March 1943
• Docket Number: No. 38216.,38216.
• Parties: STATE v. MURRELL.
• Court: Missouri Supreme Court

169 S.W.2d 409

STATE v. MURRELL.

No. 38216.

Supreme Court of Missouri, Division No. 2.

March 25, 1943.

Appeal from Circuit Court, Polk County; C. H. Jackson, Judge.

Robert Murrell was convicted of a felonious assault with malice aforethought, and he appeals.

Reversed and remanded.

Morgan M. Moulder, of Camdenton, John W. Culp, of Gainesville, Tex., Herman Pufahl, of Bolivar, and W. F. Murrel, of Jefferson City, for appellant.

Roy McKittrick, Atty. Gen., and Tyre W. Burton, Asst. Atty. Gen., for respondent.

BOHLING, Commissioner.

Convicted of a felonious assault with malice aforethought upon Max Caldwell and sentenced to two years' imprisonment, Robert Murrell appealed. He presents issues involving the admissibility of evidence, the giving and refusal of instructions, the conduct of the jury et cetera. Appellant interposed the defense of insanity. We briefly outline the testimony.

Appellant was an osteopathic physician practicing in Miller county, Missouri. Previously, he had resided at Russellville and Jefferson City. His wife died in January, 1940. During his marriage he became acquainted with Hilda Rhoads, the families frequently visiting. On April 27 or 28, 1941, appellant proposed marriage to Miss Rhoads. A day or two later, Miss Rhoads told appellant that Max Caldwell had made an attack upon her, narrating the details. The State's evidence, briefly put, warranted findings that on May 1, 1941, appellant took Caldwell to a cottage, where Miss Rhoads and another young lady were living, for the stated purpose of having a "drink with the girls." After having drinks, appellant had Miss Rhoads draw down the shades, pulled out a revolver and told Caldwell to "start talking." Caldwell stated he did not know what appellant meant. Appellant then asked Caldwell if he were going to take his punishment like a man; and upon Caldwell stating if appellant had anything against him, he would take it, appellant ordered Caldwell to strip to the waist, to lie on the floor, and the women then whipped Caldwell with a "black snake" whip supplied by appellant. All this was at the point of a revolver. We think these facts are sufficient for the present.

Several assignments in appellant's motion for new trial urge error in the exclusion of evidence. They are of a general nature. Since the judgment will have to be reversed and the cause remanded, we briefly outline our views with respect to the general nature of these complaints. Some difficulty has been experienced in so doing because, among other things, appellant's brief refers to instance after instance in the bill of exceptions without developing the precise reason underlying the alleged error and reference to indicated instances frequently disclose the statement in the brief to be colored. Such pardonable zeal on the part of counsel for a client is really of no avail but results in the unnecessary expenditure of time and labor on the part of the court as well as counsel.

One assignment asserts error on the ground the court did not permit appellant's cross-examination of the prosecuting witness to embrace said witness' habits and conduct for the purpose of discrediting him as a witness. A reading of the record discloses that appellant's cross-examination elicited answers of that nature. The real complaint is that the trial court sustained objections to certain of the questions propounded. It is our conclusion, stated in as general terms as assigned in appellant's motion, that prejudicial error was not committed. Great latitude is allowed in the cross-examination of a witness on matters that affect his credibility (State v. Bagby, 338 Mo. 951, 963(IV), 93 S.W.2d 241, 249[10, 11]; State v. Crow, 337 Mo. 397, 403[3], 84 S.W.2d 926, 929[6-9]); but the scope of the cross-examination on collateral matters is not without limits and is said to rest in the exercise of a sound discretion on the part of the trial court. State v. Stegner, 276 Mo. 427, 439, 207 S.W. 826, 830[15, 16]; State v. McGee, 336 Mo. 1082, 1100 [8], 83 S.W.2d 98, 108[38, 39]; Bellovich v. Griese, Mo.Sup., 100 S.W.2d 261, 264 [4, 5].

Complaint is made of the exclusion of certain testimony appearing in the deposition of appellant's family physician, Dr. Rufus C. Whiddon, on appellant's mental condition. The State seemingly stands upon the proposition that appellant's motion for new trial was insufficient to preserve these and other like issues, as the State's brief does not seek to refute appellant's statements of the applicable law. Great latitude is indulged in admitting evidence on the issue of insanity in criminal prosecutions. State v. Jackson, 346 Mo. 474, 480 [1] et seq., 142 S.W.2d 45, 48[1] et seq., citing cases; State v. Williams, 337 Mo 884, 900[7], 87 S.W.2d 175, 184[10], 100 A.L.R. 1503; State v. McCann, 329 Mo. 748, 762(III), 47 S.W.2d 95, 100[10]. Proof of insanity of blood relatives is admissible. State v. Warren, 317 Mo. 843, 297 S.W. 397, 403[9]. Hypothetical questions, fairly and clearly framed, that reflect the theory of the party propounding the question on the facts proved have been sustained. State v. Tarwater, 293 Mo. 273, 291(VI), 239 S.W. 480, 485[14]; State v. Douglas, 312 Mo. 373, 401, 278 S.W. 1016, 1025[18].

Mrs. Mae Morris' deposition was offered by appellant. She was a registered nurse and Superintendent of the Gainsville, Texas, Sanitarium, and had had thirteen years' experience with mental and nervous patients brought to said institution. She was a competent witness on appellant's actions known to her and tending to establish insanity and her opinion he was insane. State v. Liolios, 285 Mo. 1, 13, 15, 16, 18, 225 S.W. 941, 945[1, 3, 5, 7]; State v. Todd, 342 Mo. 601, 607[6], 116 S.W.2d 113, 117[11, 12]; State v. Jackson, supra.

The remaining assignment of this nature in appellant's motion for new trial refers to witness Carl Kaden's testimony. What we have said and the authorities cited cover his testimony, as well as the testimony of other witnesses not mentioned in the motion.

Appellant makes numerous attacks against the instructions on insanity, which, without setting them out here, may be found in substance in a number of cases. For instance, consult State v. Duestrow, 137 Mo. 44, 69, 38 S.W. 554, 561, 39 S.W. 266, and cases cited in connection with specific issues.

The information charged appellant with assault with malice aforethought. The court instructed thereon, as well as on lesser degrees of the offense of assault, viz., on felonious assault without malice and on common assault. The State does not question the propriety of the submission of a felonious assault without malice, or the submission of a common assault, nor does it question the soundness of the ruling in State v. Warren, infra. The jury returned a verdict of guilty of an assault with malice aforethought. If, as contended, the instructions on insanity assumed appellant guilty of an assault with malice aforethought, the error was prejudicial. Appellant says the instructions so assumed in several instances. We set out one: "Wherefore, the court instructs the jury that if they believe and find from the evidence that, at the time he did the acts charged in the second count of the information, the defendant was so perverted and deranged, in one or more of his mental and moral faculties, as to be incapable of understanding, at the moment he assaulted said Max Caldwell, that such acts were wrong * * *." Under the authority of State v. Warren (Banc, 1930) 326 Mo. 843, 851 (II-V), 33 S.W.2d 125, 128[4-7], the instruction, by the use of the words "at the time he did the acts charged in the second count of the information," was erroneous in assuming appellant guilty of an assault with malice aforethought, whereas under the submitted issues a verdict for a lesser degree of the offense of assault was authorized. Consult State v. Barbata, 336 Mo. 362, 371(a), (b), 80 S.W.2d 865, 870 (a), (b).

Appellant complains of the word "validity" in the following quotation from an instruction: "And it is for you to determine from all the evidence in this case the validity of such or any defense interposed. Insanity, if satisfactorily shown by the evidence, is a valid defense * * *." True, it was for the court to determine the validity of the defense. The next sentence,...