State v. Richardson
Decision Date | 13 February 1961 |
Docket Number | No. 48122,No. 2,48122,2 |
Citation | 343 S.W.2d 51 |
Parties | STATE of Missouri, Respondent, v. Raymond Hewitt RICHARDSON, Appellant |
Court | Missouri Supreme Court |
Price Shoemaker, St. Joseph, for appellant.
John M. Dalton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., for respondent.
The defendant was charged by information with the offense of unlawfully and feloniously driving and operating a motor vehicle upon the highways of this state while in an intoxicated condition. He was found guilty as charged and his punishment was assessed by the jury at a fine of $100 and imprisonment for six months in the county jail. His motion for new trial was overruled and he was sentenced in accordance with the verdict. He has appealed from the judgment of conviction.
No brief having been filed on behalf of the defendant, the case is before us on the transcript of the record and the brief of the state. In this situation our review extends to the essential record and the assignments of error properly preserved in the motion for new trial. Supreme Court Rules 27.20 and 28.02, V.A.M.R.; State v. Bryant, Mo., 319 S.W.2d 635, 636. The assignments of error are concerned chiefly with the failure of the trial court to discharge the jury for alleged improper cross-examination of the defendant, the refusal of the trial court to grant defendant sufficient time in which to call witnesses in his defense, and alleged errors in the giving and refusal of instructions. In view of the nature of these assignments, an extended statement of the evidence is not necessary.
At about 9:45 p. m. on June 20, 1959, while Paul Marquart was driving his automobile south on Highway 45 in Buchanan County, a short distance south of its junction with Highway 59, he saw an automobile traveling south in front of him dart off to the right side of the highway; he then saw a northbound automobile coming toward him in the southbound lane. This automobile which Marquart later ascertained was being driven by the defendant had a damaged left front fender and only one headlight burning. Although Marquart pulled off onto the right shoulder, his automobile was struct by that of the defendant who did not stop. Marquart turned his car around and followed the defendant as his automobile pursued an erratic course northward on Highway 45 and then onto 59 at the junction. The defendant's automobile was weaving from one side of the highway to the other and was frequently on the wrong side. Three automobiles were forced off the highway by the defendant in about one and onehalf miles. When the defendant arrived at a night club or roadhouse, known as the Huddle, he drove onto the parking lot after first missing the driveway and running into a ditch. When the defendant got out of his automobile, he staggered and had difficulty in walking. He asked someone where the front door of the Huddle was and finally sat down on the steps of the building with his head in his hands.
Marquart observed the defendant for 20 or 25 minutes awaiting for officers to respond to a call. Two deputy sheriffs of Buchanan County as well as a highway patrolman arrived and also observed the defendant's condition. Marquart as well as the highway patrolman and one of the deputy sheriffs testified that the defendant was in a drunken condition. He was described as thick-tongued, bleary-eyed, belligerent, smelling of alcoholic liquor and hardly able to walk. The deputy sheriffs had to help the defendant to his feet and put him in the squad car. On the way to the jail they had to stop their car to let the defendant vomit. He admitted to one of the deputy sheriffs that he had consumed four or five bottles of beer and was awfully drunk.
The first question presented relates to the refusal of the trial court to grant a mistrial because of allegedly improper cross-examination of the defendant by the state's attorney. The defendant testified that before the accident he had taken some pills to ease pain in his teeth and that the pills suddenly made him drowsy. He further testified he obtained the medicine from a druggist without a prescription, and while on the stand he produced a purple box containing some capsules which he testified were what remained of those he had purchased. The cross-examination of which the defendant complains occurred in this sequence:
'The Court: Objection sustained but the motion to discharge is overruled.
'
* * *
'Mr. Hale: I don't know why he doesn't.
'Mr. Yeaman: It is admitted, is it not, Mr. Richardson, you were fined $25.00 for careless and reckless driving in 1957 and that is the only time you have ever been arrested?
'Mr. Hale: I take it he doesn't admit that.
It will be noted that the defendant's objection was, in a measure at least, conditional, i. e., 'unless the prosecutor has some record of conviction.' The defendant at first denied having a prior conviction of any sort, but under the guidance of his attorney admitted a conviction in 1957 for careless and reckless driving. A little later in his cross-examination he admitted a conviction on March 7, 1958, for reckless driving although he denied he was convicted of drunken driving. No further request was made for a mistrial or other relief.
We need not determine the propriety of the question complained of nor the sufficiency of the objection because it is apparent from the record that prejudicial error was not committed in refusing to declare a mistrial. The trial court is vested with a broad discretion in determining whether a mistrial should be declared in circumstances such as these and it has not been demonstrated that there was an abuse of that discretion. State v. Thost, Mo., 328 S.W.2d 36, 39; State v. Taylor, Mo., 324 S.W.2d 643, 647; State v. Ruyle, Mo., 318 S.W.2d 218, 220.
The next assignment of error is that the trial court erred in refusing to grant defendant sufficient time in which to call witnesses in his defense. At the conclusion of the state's case, the defendant without objection or reservation began offering his evidence. He was the first witness to testify and at the conclusion of his testimony the following occurred out of the hearing of the jury:
'The Court: You don't have any other witness here now?
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