State v. Nelson
| Decision Date | 17 July 1972 |
| Docket Number | No. 57096,No. 2,57096,2 |
| Citation | 484 S.W.2d 306 |
| Parties | STATE of Missouri, Respondent, v. Richard NELSON, Jr., Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
John J. Hager, Jack E. Gant, Gant, Moran & Hager, Kansas City, for appellant.
STOCKARD, Commissioner.
Richard Nelson, Jr., was found guilty by a jury of assault with intent to kill without malice aforethought and sentenced to imprisonment for a term of three years. We affirm.
The sufficiency of the evidence to sustain the verdict is not challenged. Briefly stated, the evidence favorable to the verdict shows that on July 20, 1970 Elmer J. Howe, the owner of Howe Amusement Company and Howe's Vending Company, entered Louie's Tavern and purchased a beer. When he was leaving, appellant, who previously had been an employee of Mr. Howe and had been discharged, hit Mr. Howe on the head 'once or twice' with a ballpeen hammer.
Over appellant's objection the trial court admitted in evidence Exhibit 6, a ballpeen hammer. Appellant asserts this was prejudicial error because Exhibit 6 was 'not the actual hammer used in the alleged assault.'
Mr. Howe testified that at the time of the assault he saw the hammer used by appellant, and that at the request of the prosecutor he had purchased a hammer of the 'very same variety,' that Exhibit 6 was the 'closest replica' he could obtain, and that it was 'exactly the same size.' When appellant objected to the admission in evidence of Exhibit 6, the court stated that if there was proof that the actual hammer used was not available the objection would be overruled. Mr. Howe then testified that he last saw the hammer in appellant's possession, and that he did not then know where it was. Exhibit 3 was again offered in evidence, and appellant made no objection that there was insufficient proof of the unavailability of the hammer actually used.
As a general rule, demonstrative evidence is admissible in evidence if it is relevant, even though oral descriptions of the object might be given, provided there in no specific policy or principle to the contrary, State v. Wynne, 353 Mo. 276, 182 S.W.2d 294, and 'models, casts and reproductions of relevant objects which are not available may be received, in the discretion of the court; this, of course, assumes that the reproduction, or model, fairly represents the conditions which it is offered to show.' State v. McClain, Mo., 404 S.W.2d 186. Appellant does not contend that Exhibit 6 was not an exact duplicate of the hammer actually used. There was nothing inflammatory about the exhibit, there was no deception, and no one could have been misled by the use of Exhibit 6. A hammer was used in making the assault, and when that hammer was not available to the State, the demonstrative exhibit was relevant to one of the issues and was helpful to the jury in determining the intent with which the assault was made. We have examined the cases relied on by appellant and each is distinguishable on its facts. The trial court did not abuse its discretion in admitting Exhibit 6 in evidence.
Appellant next asserts that the trial court erred in admitting into evidence 'the testimony of Mr. James Frank in regard to the shotgun shell and the testimony of Jean Spini in regard to prior conversation for the same were not a part of the res gestae.'
The testimony to which this point has reference pertained to prior threats made by appellant, and the testimony was offered, and was admitted by the court, on the theory that it was relevant to prove appellant's intentions and from which the jury could infer his malice. To be admissible on this theory the...
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State v. Kinder
...represents the conditions which it is offered to show." State v. Silvey, 894 S.W.2d 662, 667 (Mo. banc 1995) (quoting State v. Nelson, 484 S.W.2d 306, 307 (Mo.1972)). Kinder does not argue that the pipe admitted at trial was not a fair representation of the pipe in his possession the night ......
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State v. Black
...of violence which are not connected with defendant. State v. Maggitt, 517 S.W.2d 105, 107 (Mo. en banc 1974) (murder); State v. Nelson, 484 S.W.2d 306, 308 (Mo.1972) (assault). Thus, defendant's assumption about these questions is incorrect, and his argument based upon this erroneous assump......
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State v. Woods
...a crime is unavailable, and the above criteria are met, a model or replica of the weapon may be admitted into evidence. State v. Nelson, 484 S.W.2d 306, 307 (Mo.1972); State v. McClain, 404 S.W.2d 186, 191 The state established here that it was unable to locate the actual gun used in the es......
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State v. Silvey, s. 74030
...rule that demonstrative evidence of a weapon unconnected with the defendant or offense charged is inadmissible. In State v. Nelson, 484 S.W.2d 306, 307 (Mo.1972), this Court held that a ballpeen hammer similar to one used in the assault charged and unconnected with the defendant was admissi......