State v. Parker

• Decision Date: 11 October 1948
• Docket Number: 40611
• Citation: 214 S.W.2d 25,358 Mo. 262
• Parties: State of Missouri, Respondent, v. J. O. Parker, Appellant
• Court: Missouri Supreme Court

214 S.W.2d 25

358 Mo. 262

State of Missouri, Respondent, v. J. O. Parker, Appellant

No. 40611

Supreme Court of Missouri

October 11, 1948

Appeal from Jasper Circuit Court; Hon. Walter E. Bailey Judge.

Reversed and Remanded.

Norman Foulke & Warten for appellant.

(1) Evidence of other misconduct or the commission of a separate offense, other than the alleged offense for which the defendant is on trial is inadmissible. The evidence admitted in this case by the court tending to prove the defendant guilty of window-peeping, was inadmissible and the admission of such evidence was prejudicial to the defendant and reversible error. State v. Leonard, 182 S.W.2d 548; State v. Garrison, 116 S.W.2d 23; State v Donell, 18 S.W.2d 53; State v. Shobe, 268 S.W. 81; State v. Horton, 153 S.W. 1051; State v. Stray, 74 S.W. 846. (2) In a murder case, where the defense is self-defense, expert testimony of a physician, is admissible to show the defendant was weak, a cripple and in bad physical condition and unable to cope with the deceased, a strong, able-bodied young man, without the use of weapons. Such evidence was also admissible to show that the defendant was, more apprehensive of danger from an assault by the deceased than a normal person, in good health and younger in age would have been. Such evidence was also admissible to show the relative size, age, and strength of the defendant and the deceased. State v. Bowles, 146 Mo. 6; State v. Fielder, 330 Mo. 747, 50 S.W.2d 1031; State v. Clough, 327 Mo. 700, 38 S.W.2d 36; State v. Smith, 91 P. 511. (3) In a murder case, where the defense is self-defense, it is proper to show that the deceased bore a reputation of being a violent, dangerous, and lawless character, for the purpose of showing a reasonable apprehension of immediately impending danger on the part of the defendant, when attacked by the deceased. The testimony of the defendant as to his knowledge of the reputation of the deceased, for being a violent, dangerous, rough, lawless character, was rejected. So, also, was the testimony of the witness Seay, who testified that the deceased bore the general reputation of being a dangerous, violent, turbulent and lawless man. This evidence was proper. The defendant was entitled to have it before the jury as a part of his defense. State v. Naylor, 40 S.W.2d 1079; State v. Roberts, 242 S.W. 669; State v. Turnbo, 267 S.W. 847; State v. Jones, 134 Mo. 254; 30 C.J., sec. 465, p. 229. State v. Hayden, 83 Mo. 198. (4) The defendant was entitled to have the jury instructed that if they believed from the evidence that the deceased was of a rash, turbulent and violent disposition, and that defendant had knowledge of such disposition, then it is a circumstance for the consideration of the jury in considering the reasonable cause for defendant's apprehension of great personal injury to himself. The court admitted testimony of the defendant that he knew of the reputation of the deceased for turbulence and violence. Even though he refused to permit the defendant to offer the evidence proffered as to the general reputation of the deceased, the defendant was still entitled to have the jury instructed to consider this circumstance in determining if the defendant had reasonable cause for apprehension of injury to himself, when the deceased attacked him. State v. Hicks, 27 Mo. 588; State v. Barrett, 144 S.W. 485. (5) The details of former difficulties between the defendant and the deceased, and collateral matters having no connection with the offense charged, are inadmissible. The State was only entitled to show that there was ill feeling between the parties, but was not entitled to go into the details of the cause for the ill feeling and try that issue instead of the offense with which the defendant was charged. The admission of such evidence simply tended to confuse and mislead the jury, directed their attention to the consideration of the question as to who was in the right or wrong in such previous difficulties concerning which there was no one upon trial. In several different instances throughout the course of the trial and at different places in the record, the State offered such evidence, which was admitted, and which was prejudicial to the defendant's right to a fair trial. These instances will be enumerated in the argument. It is sufficient here to state the rule as set out above. State v. Birks, 199 Mo. 263; State v. Heath, 121 S.W. 149. (6) The admission of the testimony of Dorthy Strange, relating to an occurrence between her and the defendant, in which the deceased had no part, and which occurred at an undetermined time prior to the shooting, was reversible error. This testimony was inadmissible for any purpose and had absolutely no connection whatever with the case. State v. Lewis, 118 Mo. 79; State v. Swearengin, 269 Mo. 177, 190 S.W. 268; State v. Maddox, 98 S.W.2d 535. (7) The prosecuting witness, having testified as to statements of the deceased, brought the character of the deceased into issue in the case. After this was done, testimony and records relating to previous felony convictions of the deceased were admissible for the purpose of impeaching his credibility, relating to the statements of his repeated by his wife into the evidence. State v. Dipley, 147 S.W. 111. (8) The evidence of the true identity of the deceased, as derived from the correspondence with his sister, Alice Goldberg, of New York City, was admissible. The identity of the person killed with the person alleged to have been killed must be fully established. 30 C.J.S. 532, p. 288; Gordon v. Metropolitan Life Ins. Co., 176 S.W.2d 506. (9) The defendant was entitled to have the jury instructed on manslaughter under the facts in the case where there was the showing of hot blood between the parties at the time of the shooting. State v. Ferguson, 182 S.W.2d 38; State v. Creighton, 52 S.W.2d 556, 561; State v. Sterling, 72 S.W.2d 70. (10) Where the State introduces in evidence the admissions of the defendant, it is bound by all exculpatory statements contained therein, unless they are shown by the evidence to be true. The State in this case having offered in evidence the statements of the defendant as to the occurrences on the day of the shooting, was bound by all the exculpatory statements also appearing therein. The defendant was entitled to have the jury so instructed because that is the law and it was material to his defense in the case. The instruction offered by the defendant to that effect should have been given and it was error to refuse it. 16 C.J., sec. 1516, p. 737; Jones v. State, 15 S.W. 990. (11) After the showing made by the defendant that the sheriff had not been properly sworn, and that he was a witness in the case, the motion for the appointment of elisors should have been sustained. It was error to overrule it. State v. Leabo, 89 Mo. 247.

J. E. Taylor, Attorney General, and John S. Phillips, Assistant Attorney General, for respondent.

(1) No error was committed by the court in the rejection of the testimony of Frank Seay, as to deceased's reputation. State v. Kennade, 26 S.W. 347, 121 Mo. 405; State v. Carroll, 62 S.W.2d 863; State v. Petit, 24 S.W. 1014, 119 Mo. 410. (2) The court did not commit error in its refusal to give defendant's Instruction 2. See authorities under Point (1), supra. (3) The court did not commit error in refusing to permit the defendant to introduce evidence that the deceased's name was George Unterberger. State v. Sartino, 115 S.W. 1015, 216 Mo. 408; State v. Sweeney, 56 Mo.App. 409. (4) The court did not commit error in refusing to admit in evidence the deposition of Emma Tonnies, Exhibits C, D, E, & F, offered by defendant. State v. Naylor, 40 S.W.2d 1079, 328 Mo. 335; State v. Nenninger, 188 S.W.2d 56, 354 Mo. 53; State v. Roberts, 242 S.W. 669, 294 Mo. 284; State v. Woods, 204 S.W. 21, 274 Mo. 610; State v. Tabor, 95 Mo. 585; State v. Barrett, 144 S.W. 485, 240 Mo. 161; State v. Green, 129 S.W. 700, 229 Mo. 642.

OPINION

Tipton, P.J.

The appellant was convicted of murder in the second degree in the circuit court of Jasper County and his punishment was assessed at 20 years' imprisonment in the state penitentiary.

Appellant contends that the evidence is insufficient to sustain the verdict. We will therefore set forth the facts most favorable to the State to determine this question. The appellant was the owner of a three-apartment building facing on Pearl Street in Joplin, Missouri. The downstairs constituted one apartment and it was occupied by the appellant; the upstairs was divided into two apartments. The east apartment was occupied by the deceased, Robert Turner, and his wife, and consisted of three small rooms and a bathroom. It had hardwood floors which enabled a person in appellant's apartment to hear a person walking about in the apartment above. In addition to the wooden front door to deceased's apartment, there was a screen door which, upon being released by a person passing through it, would slam. There was a sidewalk leading from deceased's apartment to the sidewalk along the street. There was also a sidewalk leading from the front door of the apartment occupied by the appellant.

Deceased and his wife rented the apartment furnished in the early part of October, 1945. Almost immediately after they moved into this apartment the appellant insisted on and did make frequent officious inspections of the apartment for the pretended purpose of examining the ice box, faucets, bath fixtures and furniture. Deceased and his wife objected to these intrusions, but he continued to make inspections, even though the deceased and his wife were absent. During one of the inspections in the middle of October of that year he discovered Mrs. Turner's niece who was visiting her for the...