State v. Pinkston

• Decision Date: 05 March 1935
• Docket Number: No. 33765.,33765.
• Citation: 79 S.W.2d 1046
• Parties: THE STATE v. POSTELL PINKSTON, Appellant.
• Court: Missouri Supreme Court

79 S.W.2d 1046

THE STATE v. POSTELL PINKSTON, Appellant.

No. 33765.

Supreme Court of Missouri.

Division Two, March 5, 1935.

Appeal from Circuit Court of City of St. Louis. — Hon. Fred J. Hoffmeister, Judge.

REVERSED AND REMANDED.

S.E. Garner for appellant.

(1) The court erred in allowing the prosecutor to pledge the prospective jurors to a death penalty punishment in this case in the event of a conviction, in that it denied the defendant the benefit of the discretion of the jurors to assess the life imprisonment sentence, and it was an invasion upon the powers of the jury. State v. Williams, 274 S.W. 427. (2) The court erred in permitting Courtjohn to go through his experiments in the presence of the jury and further erred in allowing and permitting the State to offer in evidence, over objections, certain bullets taken from the body of Willie Frierson and a bullet taken from the barrel of water into which it had been shot by a member of the police department, for the reason that said demonstrative evidence was not shown to have any connection with the defendant by way of identifying him, his identity having not been denied, nor did it prove or tend to prove any disputed issue in the case — not even the guilt of the defendant, nor was it offered to show the character of the wound. State v. Porter, 207 S.W. 774. (3) The court erred in permitting the prosecutor to argue to the jury that defendant could have summoned witnesses to testify to his good character, if he had desired to do so, but that he did not. State v. Hersh, 296 S.W. 433; State v. Bugg, 292 S.W. 49; State v. Brokaw, 281 S.W. 105.

Roy McKittrick, Attorney General, and Wm. W. Barnes, Assistant Attorney General, for respondent.

(1) The examination of jurors upon their voir dire was proper. Sec. 3669, R.S. 1929; State v. Hayes, 262 S.W. 1034; State v. Sherman, 264 Mo. 379; State v. Wooley, 215 Mo. 672; State v. Creighton, 52 S.W. (2d) 563; Sec. 3703, R.S. 1929; State v. Bevins, 328 Mo. 1050. (2) Jurors are not required to believe the testimony of experts, but accept it for whatever value it may have. State v. Daly, 210 Mo. 677. (3) Remarks by the State's attorney in his closing argument to the jury, which are in direct reply to remarks and suggestions made by defendant's counsel in addressing the jury, are not erroneous. State v. Harmon, 317 Mo. 360; State v. Smith, 300 S.W. 1083; State v. Linders, 299 Mo. 684; State v. Hyland, 144 Mo. 313.

TIPTON, P.J.

On the 23rd day of May, 1933, in the Circuit Court of the City of St. Louis, Missouri, the appellant was convicted of murder in the first degree and his punishment fixed at death. He has properly perfected his appeal to this court.

No question is raised as to the sufficiency of the evidence to sustain the verdict, therefore, it will not be necessary to state the evidence, other than to say that the appellant was engaged in the commission of robbery during which Willie Frierson was killed.

I. Complaint is made of the closing argument of the State's attorney. He, in effect, said that Mr. Garner, the appellant's attorney, knows that if this appellant's character were such that he would want to call it to the jury's attention, he would have produced a witness to testify about it, and then the State could cross-examine the witness. But he did not do so, because he knew it could not be sustained by the evidence.

The appellant did not put his character in issue.

[1] Until a defendant has put his character in evidence the State is not permitted to attack it. The law presumes every man's character to be good. [State v. Sexton (Mo. App.), 262 S.W. 63.] A defendant has a right to be tried with that presumption. No attorney should be allowed to argue about facts not shown in the evidence. What the circuit attorney was not allowed to do by testimony he did more effectually by asserting as a fact in his official character. "It is a rule, sustained by the great weight of authority that it is improper for counsel for the prosecution in his argument to comment on the failure of the accused to produce evidence of his good character." [80 A.L.R. 227; State v. Shipley, 174 Mo. 512, 74 S.W. 612; State v. Sexton, supra; Lowden v. United States (C.C.A.), 149 Fed. 673; Bennett v. State, 86 Ga. 401, 12 S.E. 806, 12 L.R.A. 449, 22 Am. St. Rep. 465; Fletcher v. State, 49 Ind. 124, 19 Am. Rep. 673; State v. Williams, 122 Iowa, 115, 97 N.W. 992; State v. Scott, 194 Iowa, 777, 190 N.W. 370; State v. Upham, 38 Me. 261; People v. Evans, 72 Mich. 367, 40 N.W. 473; People v. Boske, 221 Mich. 129, 190 N.W. 656; Cline v. State (Tex. Cr. App.), 71 S.W. 23; Hudson v. State (Del.), 156 Atl. 881, 80 A.L.R. 219; State v. Lentz, 184 Mo. 223, 83 S.W. 970.]

In State v. Shipley, supra, the defendant's counsel, in his argument said: "The defendant is a man of good character, not a witness has been produced to show his was not good." In the closing argument the prosecuting attorney said: "Fred Shipley, the defendant, had a right to prove his good character, and gentlemen of the jury, the reason he did not bring them in is because he knew they would not so testify." In passing on this assignment of error we said:

"No evidence had been offered on the character of the defendant. The prosecuting attorney told the jury in effect that the defendant had not brought his neighbors in to testify as to his good character because he knew they would not do so, and it was tantamount to asserting that defendant was a man of bad character. The apology made in the record is that defendant said he was of good character, and no witness had testified against his character. We do not think this palliates the breech of the prosecuting attorney. If there was no evidence on character (and there was none) he should have objected to the statement, and requested that the defendant's counsel be required to keep within the evidence. But instead of so doing, he made no objection at the time, and then sought in the closing argument to offset it by the unsupported statement that defendant was a man of bad character and knew it, and did not dare to produce his neighbors. It is a cardinal rule of criminal procedure that until a defendant has put his character in evidence the State is not permitted to attack it."

[2] The State contends the remarks made in the closing argument are not erroneous because they were made in reply to the remarks and suggestions made by the appellant's counsel in addressing the jury. If the statements made were in reply to the remarks made by appellant's counsel then the State is correct in its contention. We have so ruled. [State v. Harmon, 317 Mo. 354, 296 S.W. 397; State v. Smith, 300 S.W. 1081; State v. Linders, 299 Mo. 671, 253 S.W. 716.]

We have carefully examined the argument of appellant's attorney, but failed to find in it any reference to appellant's character. The gist of the argument was that before it could be murder in the first degree the evidence must show premeditation and deliberation, however, if a homicide was committed in the perpetration of robbery then the law presumes premeditation and deliberation; that this appellant did not go to the place where the deceased was killed with the design to kill Willie Frierson. Counsel said: "Because this boy was with a gang of other boys that were in devilment got himself into a situation where he is charged with this offense," and this appellant was hanged, would the State of Missouri be in any better condition the next day after he was hanged?" Again he said: "What great accomplishment would our noble State be able to look back upon a number of years from today, upon your act, from its history, that because a boy just barely grown, got mixed up with other boys and got off in a little devilment at a time that they thought maybe it was not so serious, got into it and this condition arose and he is here — and the State of Missouri then says, we took that boy out and showed him how we felt about it, we simply put a rope on his neck — if that be done, would that be a wonderful thing to boast about? Would that be something great we could put in our history? I don't think so."

We do not agree with the State that the argument of the assistant circuit attorney was in reply to the argument of the appellant's counsel. The appellant did not discuss the question of his character. The reference of the State's attorney to appellant's character was prejudicial error.

[3] II. The appellant's next assignment of error is as follows: "The Court erred in allowing the prosecutor to pledge the prospective jurors to a death penalty punishment in this case in the event of a conviction, in that it denied the defendant the benefit of the discretion of the jurors to assess the life imprisonment sentence, and it was an invasion upon the powers of the jury."

The prospective jurors were examined at length as to whether or not they would assess the death penalty if the evidence warranted it. It is impossible to...