State v. Porter

• Decision Date: 09 February 1948
• Docket Number: 40465
• Citation: 208 S.W.2d 240,357 Mo. 405
• Parties: State v. Robert Thurman Porter, Appellant
• Court: Missouri Supreme Court

208 S.W.2d 240

357 Mo. 405

State v. Robert Thurman Porter, Appellant

No. 40465

Supreme Court of Missouri

February 9, 1948

Appeal from Ripley Circuit Court; Hon. Randolph H. Weber Judge.

Reversed and remanded.

Tedrick & Tedrick for appellant.

(1) The evidence erroneously admitted and complained of by the appellant is the state's exhibit No. 4. This exhibit did not prove or disprove any issue in the case, therefore it was incompetent and immaterial, and was introduced solely for the purpose of prejudicing the jury. The corpus delicti was admitted, and there was no question of the identity of the deceased, therefore there was no legal reason for the introduction of said exhibit. State v. Porter, 207 S.W. 774. (2) The prosecuting attorney, in his argument to the jury, said "that the defendant shot deceased the second time while he was lying there on the ground." There was no evidence to support such an assertion and the defendant interposed a timely and proper objection and asked that the prosecuting attorney be reprimanded and the jury discharged. The court did neither and appellant predicates error upon his failure to do one or the other, or both. Attorney should not be allowed to argue about facts not shown in evidence. State v. Pinkston, 79 S.W.2d 1046; State v. Nicholson, 7 S.W.2d 375; State v Clapper, 102 S.W. 560; State v. Wigger, 93 S.W 390; State v. Lockhart, 87 S.W. 457. (3) It is improper to permit a prosecuting attorney, to express in his argument, his opinion or belief, thus implying that he knows facts, not in evidence, pointing to defendant's guilt. State v. Lenzner, 92 S.W.2d 985; State v. Leonard, 182 S.W.2d 548. (4) The court permitted the prosecuting attorney to cross-examine the defendant on matters not mentioned in the direct testimony. This evidence should have been excluded. Mo. Dig. (Witnesses) Key No. 277 (4) and cases cited. (5) Instruction D-2, on self-defense offered by the defendant and refused by the court, was proper and should have been given. State v. Moore, 56 S.W. 883. (6) The court failed to give an instruction on manslaughter, although the evidence warranted the giving of such instruction. There was evidence of an attempt on the part of deceased to take defendant's keys to his truck, evidence of a continuing fight or scuffle, evidence of threats and evidence of deceased's attempt to strike defendant with a rock. (7) The court's failure to instruct on manslaughter, under the facts and circumstances in this case, was reversible. State v. Littlejohn, 204 S.W.2d 750; State v. Nenninger, 188 S.W.2d 56; State v. Wheat, 95 S.W.2d 1165; State v. Creighton, 52 S.W.2d 556; State v. Stallings, 33 S.W.2d 914; State v. Richardson, 92 S.W. 649; State v. Starr, 38 Mo. 270; Sec. 4070, R.S. 1939. (8) Since the court failed to give an instruction on manslaughter, the defendant himself offered one (Instruction D-1) which was refused. This was error on the part of the Court as the instruction so offered was proper. State v. Hudspeth, 60 S.W. 136; Cases cited under 6.

J. E. Taylor, Attorney General, and David Donnelly, Assistant Attorney General, for respondent.

(1) Appellant's Assignment of Error No. 1 is without merit. State v. Burns, 312 Mo. 673, 280 S.W. 1026; State v. Hill, 76 S.W.2d 1092; State v. McGee, 336 Mo. 1082, 83 S.W.2d 98; State v. McDaniel, 336 Mo. 656, 80 S.W.2d 185; State v. Bradley, 179 S.W.2d 98; State v. Burgess, 193 S.W. 821. (2) The court did not err by not reprimanding the prosecuting attorney and discharging the jury for a statement made by the prosecuting attorney in his argument to the jury. State v. Bushong, 246 S.W. 919; State v. Flowers, 311 Mo. 510, 278 S.W. 1040. (3) The court did not err in permitting the prosecuting attorney to examine appellant with reference to matters not mentioned on direct examination. State v. Ivy, 192 S.W. 733; State v. Tull, 333 Mo. 152, 62 S.W.2d 389; State v. Simons, 332 Mo. 247, 58 S.W.2d 302; State v. Jackson, 340 Mo. 748, 102 S.W.2d 612; State v. Revard, 341 Mo. 170, 106 S.W.2d 906; Hewitt v. United States, 110 F.2d 1; State v. Graves, 352 Mo. 1102, 182 S.W.2d 46. (4) The court did not err in refusing appellant's Instruction D-2 on self-defense. State v. Jones, 309 Mo. 50, 273 S.W. 730; State v. Sebastian, 215 Mo. 58, 114 S.W. 522; State v. Williams, 274 S.W. 50; State v. Thomas, 78 Mo. 327; State v. McNeese, 284 S.W. 785; State v. Bushong, 246 S.W. 919; State v. Smith, 256 S.W. 1025; State v. Davis, 267 S.W. 838; State v. Mitchell, 252 S.W. 383; State v. Moore, 56 S.W. 883. (5) The court did not err in refusing to instruct on manslaughter. State v. Crouch, 124 S.W.2d 1185; State v. Huffman, 220 S.W. 851; State v. Aurentz, 315 Mo 242, 286 S.W. 69; State v. Hostetter, 222 S.W. 750; State v. Wade, 307 Mo. 291, 270 S.W. 298; State v. Perno, 23 S.W.2d 87; State v. Hollingsworth, 156 Mo. 178, 56 S.W. 1087; State v. Nichols, 130 S.W.2d 485; State v. Hershon, 329 Mo. 469, 45 S.W.2d 60; State v. Stanton, 68 S.W.2d 811; State v. Nienaber, 153 S.W.2d 360; State v. Busch, 342 Mo. 959, 119 S.W.2d 265.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

November 8, 1946, in Butler County, defendant shot and killed Russell Leslie, and was charged with murder in the first degree. The venue was changed to Ripley County where he was, on April 14, 1947, convicted of murder in the second degree and his punishment fixed by the jury at 10 years imprisonment in the penitentiary. Motion for a new trial was filed and overruled and defendant appealed.

Defendant is a tenant farmer and at the time of the homicide resided on a farm in New Madrid County, a short distance east of Malden and according to his neighbors, he bore a good reputation. At the time of the trial defendant was 49 years old. Deceased was 40 when killed and at that time lived with his father and mother in the country, some 2 miles south of Bloomfield in Stoddard County. Defendant was married; had a wife, 2 daughters and a son. One of the daughters was married; the other daughter was 15 and the son 12. Both defendant and deceased had been patients at the tuberculosis sanitarium at Mt. Vernon, Missouri, and deceased was a barber at the sanitarium for a time. Defendant was in the sanitarium at Mt. Vernon some 21 months; he was stricken with tuberculosis in 1938, and prior to going to Mt. Vernon was at the Webb City sanitarium. He moved his family to Mt. Vernon and the older daughter married there. Defendant's wife worked for a time in the sanitarium at Mt. Vernon.

While at Mt. Vernon deceased and defendant's wife became acquainted; defendant endeavored to terminate their association. September 6, 1946, he and his family moved back to the farm in New Madrid County. About two weeks thereafter, defendant and deceased met in Malden and had a conversation. Of this conversation defendant testified: He "walked around in front of me and wanted to shake hands with me and he was pretty drunk at the time. Q. All right, what was said there and what was done? A. I said I didn't want to shake hands with him. I said, 'You done enough for me, Russell, and I don't want to have any more to do with you and I want you to go on and leave me alone', and he said, 'why, you ought to be proud of me', that is what he first said. He said, 'you ought to be proud I left out there (Mt. Vernon) after you talked to me and not been bothering your wife any more', and I said, 'I am not proud of you about anything', and then he said, 'well you ought to be, and you ought not to blame me because the whole fault was hers.' He said, 'I would be on the streets there in Mt. Vernon a drinking, and she would come up to me and go to talking and wouldn't leave me alone.'" Next day after the Malden conversation defendant intercepted a letter from deceased to Mrs. Porter and read it; sealed it again and delivered it to her. Mrs. Porter ascertained that defendant had read the letter and then she tore it into small pieces and put the pieces in her pocket. The letter, according to defendant, advised that he (deceased) was working in his cousin's barber shop in Malden; was going to Michigan soon, and asked Mrs. Porter to come to Malden Saturday night. And a short time before the homicide deceased sent a telegram from Dexter, Missouri, to Mrs. Porter at Mt. Vernon.

The next day after the letter incident Mrs. Porter left the home on the farm and returned to Mt. Vernon. Defendant sought to arrange to take his son and overtake his wife at Jonesboro, Arkansas, hoping the son who was much attached to his mother, and who had been crying because she was gone, would be helpful in persuading her to return. But because of tire trouble on his truck, he did not take the son but went alone on the bus and overtook his wife at Jonesboro; endeavored to persuade her to return home, but she refused to do so. He later made a trip to Mt. Vernon to get her to return home, but she refused to return.

Thereafter defendant conceived the idea that if deceased would tell Mrs Porter the fault was all hers; that she was to blame, etc., that she would get mad at deceased and would return to defendant and the children. With such idea in mind defendant endeavored to get deceased to state in writing that Mrs. Porter was all to blame, and deceased promised to do so. Defendant testified: "He told me he would (make the written statement) and he said, 'I will do more than that; I will write her and tell her what kind of a fool she is and tell her I am through with her and that the best thing she can do is to come on back and help you raise the children.'" Deceased never did get around to making the written statement or writing Mrs. Porter the letter he promised. Failing to get a written statement defendant asked deceased to go with him to Mt. Vernon and tell Mrs. Porter he was...