State v. Parker

• Decision Date: 18 December 1928
• Docket Number: No. 29039.,29039.
• Citation: 12 S.W.2d 428
• Parties: THE STATE v. HARRY PARKER, Appellant.
• Court: Missouri Supreme Court

12 S.W.2d 428

THE STATE v. HARRY PARKER, Appellant.

No. 29039.

Supreme Court of Missouri. Division Two.

December 18, 1928.

Appeal from Grundy Circuit Court. — Hon. L.B. Woods, Judge.

AFFIRMED.

O.A. Pickett, E.M. Harber and A.G. Knight for appellant.

(1) The court erred in permitting the State in its cross-examinations of witnesses to show that Em. Freeman, wife of the defendant, was at the time and before his marriage to her, a prostitute — a woman of bad character — and that she ran a bawdy house. (a) Parker had been married twenty-seven years and more, at the time of the trial, and thus the court permitted the State to assail the character of defendant's wife, who had been dead for more than five years, and at a time in her life more than twenty-seven years before the trial, when she was neither a party, witness nor otherwise connected with the case. (b) A witness or a party to litigation, either criminal or civil, cannot legally be thus dealt with. State v. Parker, 96 Mo. 382; State v. Shouse, 188 Mo. 473; Wood v. Mathews, 73 Mo. 477; State v. Miller, 156 Mo. 76; Johnson v. Martindale, 288 S.W. 970. (c) A fortiori it was error to let in this impeaching evidence against a person that is dead and having no connection with the case at so remote a period. Authorities supra, (2) The court erred in admitting the evidence of witnesses on behalf of the State, as to the effect the mention of Parker's name by the corner's jury to Mrs. Freeman had her, and that at such mention she started crying and taking on; and the court further erred in permitting the witnesses to give their opinion on her conduct at her various appearances before the coroner's jury as a witness, being different from her conduct and appearance when the names of other persons were mentioned to her by the coroner's jury. (a) This evidence was clearly hearsay and self-serving. (b) Such conduct or appearances was no part of the res gestae. State v. Brown, 64 Mo. 367; State v. Walker, 78 Mo. 380; 1 Greenleaf, Evi., sec. 108; 1 Wharton, Evi., sec. 261; State v. Thomas, 68 Mo. 605; Shaefer v. Mo. Pac. Ry. Co., 98 Mo. App. 445. (3) The court erred in permitting the State to read the evidence of Louise Freenames of other persons were mentioned to her by the coroner's jury, and of the preliminary examination had before the justice. No part of said evidence having been read by the defendant to in anywise contradict or impeach her. (4) The court erred in excluding the proffered evidence of Fred Wickizer by the defendant, that the deceased in front of the deceased's restaurant about two weeks before the killing of deceased, said to witness that she (Louise Freeman) would kill him (Jack Freeman) yet. (5) The court erred in discussing the case with the jury in the Trenton Hotel dining room. (6) There was a failure of evidence on the part of the State, which in reality is based upon the thorough impeachment of Louise Freeman, and the court erred in refusing to give instruction numbered D-G, asked by the defendant, to the effect that the testimony of Louise Freeman was so thoroughly impeached by previous inconsistent statements and sworn testimony and physical facts, as in law rendered her testimony no testimony at all, and wholly insufficient upon which to base a conviction of the defendant. We insist that the refusal of said instruction was error. State v. Primm, 98 Mo. 373; State v. Huff 161 Mo. 487; State v. Francis, 199 Mo. 671; State v. Tracy, 284 Mo. 619; State v. Scott, 177 Mo. 665; State v. Adkins, 222 S.W. 431. (7) The State's Instruction 7 failed to tell the jury that if Louise Freeman was present, aiding, abetting, assisting, counseling, hiring or encouraging the said Harry Parker in the commission of the offense charged against him, said conduct would constitute her an accessory, and the court erred in refusing defendant's requested Instruction D-E, which properly told the jury that if the said Louise Freeman concealed what she claimed to know about the killing of her husband, after he was killed, this constituted her in law an accessory, and that if they so found, the jury should receive her evidence with great caution and scrutiny. This instruction was clearly the law and should have been given. (8) The court erred in giving Instruction 3 to the jury, which authorized the jury to find the defendant guilty of murder in the second degree. There was no evidence of any such a grade of offense, and no evidence upon which to base a verdict or instruction for murder in the second degree. The evidence shows the defendant guilty of murder in the first degree if guilty at all.

Stratton Shartel, Attorney-General, Walter E. Sloat, Special Assistant Attorney-General, for respondent.

(1) When a defendant puts his character in issue, the State has the right to cross-examine his character witnesses along any line which may tend to disprove their testimony or the good character of the defendant. This examination may even show separate and distinct crimes, if necessary, and how far the questioning may go is largely in the discretion of the trial court. State v. Gurnee, 274 S.W. 60; State v. Cooper, 271 S.W. 473; State v. Seay, 282 Mo. 677; State v. Steele, 280 Mo. 70; State v. Crow, 107 Mo. 346. The defendant's character, having been placed in issue, the State has the right on cross-examination of his witnesses to attack his morality and it is not restricted to truth and veracity. State v. Shields, 13 Mo. 238; State v. Beckner, 194 Mo. 289; State v. Barnett and Baker, 203 Mo. 657; State v. Higgs, 259 S.W. 458. (2) After attorneys for the defendant had attacked the testimony of Louise Freeman as given before the coroner's jury it was proper for the State to show her actions before that body at the time she testified, even to her conduct, to prove that she was afraid of the defendant and through fear hesitated to testify against him. State v. Schlichter, 263 Mo. 578. The jury is entitled to any evidence which will assist them in properly weighing a contradictory statement or statements. People v. Fritch (Mich.), 178 N.W. 60; Taylor v. State (Tex.), 229 S.W. 556; Weaver v. State (Tex.), 81 S.W. 42; Commonwealth v. Sacco (Mass.), 151 N.E. 850; 40 Cyc. 2755-2757 (3) When the defense questioned Louise Freeman about her testimony before the coroner's jury and read extracts from that examination to her, asking whether she had testified to this question or that, the State then had the right to read the whole of her testimony before this body to the jury the same as any other sworn document or deposition. State v. Phillips and Ross, 24 Mo. 485; Prewitt v. Martin, 59 Mo. 333; Wilkerson v. Eilers, 114 Mo. 251; State v. Myers, 198 Mo. 256; Littig v. Heating Co., 292 Mo. 248. In appellant's brief it is contended that the defendant did not read to the witness from this testimony. However, the trial court unquestionably thought counsel was reading from the testimony of the witness as taken before the coroner's jury. This is shown in evidence by the court's own statement. (4) The trial court properly refused to permit Fred Wickizer to testify that deceased had once told him he was afraid his wife, Louise Freeman, would sometime kill him. This was pure hearsay, not competent for any purpose, and was too remote to become a part of the res gestae. A statement made by the deceased is only admissible when it is part of the res gestae or when made as a dying declaration. State v. Duestrow, 137 Mo. 88; State v. Terry, 172 Mo. 219; State v. Wilson, 250 Mo. 329; State v. Letz, 294 Mo. 342. (5) Conversation between the judge and the jury in the dining room of the Trenton Hotel was not prejudicial. While this conversation was probably improper it could in no way have affected the verdict of the jury. State v. Stark, 72 Mo. 40; State v. Shipley, 171 Mo. 550; State v. Spaugh, 200 Mo. 612; State v. Lash, 225 Mo. 560; State v. Tucker, 232 Mo. 20. (6) When there is sufficient evidence to send a case to the jury the weight of such evidence becomes a question for the jury and, with substantial testimony to support the verdict, the appellate court will not disturb it. State v. Cannon, 232 Mo. 215; State v. Mitchell, 252 S.W. 384; State v. Concelia, 250 Mo. 424; State v. Oertel, 280 Mo. 137; State v. Henke, 285 S.W. 395. (7) Instruction 7 complained of by appellant is, according to the record, appellant's own instruction and as such he cannot be heard to complain if it fails to properly state the law. There was no evidence to show that Louise Freeman was an accomplice of the defendant in perpetrating this homicide. Mere consent to a crime, when no aid is given, does not amount to participation. State v. Orrick, 106 Mo. 120; State v. Larkin and Harris, 250 Mo. 233. (8) The appellant cannot be heard to complain of an instruction on a lesser degree of crime for which he stands charged even though the evidence tends to prove the greater crime. R.S. 1919, sec. 3692; State v. Jones, 309 Mo. 56; State v. Millard, 242 S.W. 927; State v. Poor, 286 Mo. 664; State v. Clinton, 213 S.W. 842.

WHITE, P.J.

In the Circuit Court of Grundy County, April 11, 1927, on a charge of murder in the first degree, the appellant was found guilty of murder in the second degree, and his punishment assessed at ten years' imprisonment in the penitentiary. He was fifty years old at the time of the trial. The homicide occurred November 5, 1926. The victim was Jack Freeman, his stepson, the appellant having married Jack's mother twenty-seven years before the trial when Jack was about ten years of age.

The appellant claims the evidence is insufficient to sustain a verdict and the jury should have been instructed accordingly. Therefore it is necessary to set out the evidence at some length.

It is a sordid story of loose morals and criminal practices. The principal witness for the State was Louise Freeman, wife of the deceased. This woman had been unfortunate. Her parents died when she was a small child and she lived for a...