State v. Ruffin

• Decision Date: 15 March 1939
• Docket Number: 36254
• Citation: 126 S.W.2d 218,344 Mo. 301
• Parties: The State v. Cecil Knox Ruffin, Appellant
• Court: Missouri Supreme Court

126 S.W.2d 218

344 Mo. 301

The State v. Cecil Knox Ruffin, Appellant

No. 36254

Supreme Court of Missouri

March 15, 1939

Appeal from Howell Circuit Court; Hon. Will H. D. Green Judge.

Reversed and remanded.

Homer Rinehart and H. D. Green for appellant.

(1) The court erred in overruling the defendant's instructions in the nature of a demurrer at the close of the whole case. State v. Sawyer, 80 S.W.2d 164; State v Millin, 300 S.W.2d 697. (2) The cross-examination of a defendant in respect to matters not brought out in direct examination are not only prejudicial, but in direct conflict with our organic and statutory laws, Section 23, Article 2 Constitution of Missouri. Sec. 3692, R. S. 1929; State v. Drew, 213 S.W. 107; State v. Edlen, 231 S.W. 588; State v. Bowman, 199 S.W. 161; State v. Goodwin, 195 S.W. 275; State v. Swearengin, 269 Mo. 185; State v. Pfeifer, 267 Mo. 30; State v. Kyle, 76 S.W. 1014. In cases wherein the cross-examination is palpably outside defendant's examination in chief, and if his answers are such as to hurt his case before the jury, the court should have no hesitancy in reversing the case by reason of this departure. State v. Dixon, 190 S.W. 293. (3) In cases wherein the State exceeds the authority given by the statute (Sec. 3692, R. S. 1929) in cross-examination of defendant, and makes inquiries that plainly violate the prohibitory statute, their prejudicial nature will be presumed in absence of clear evidence to the contrary. State v. Santino, 186 S.W. 978. The accused should be protected by the prosecuting officer and trial judge against the necessity of asserting before the jury the right to immunity from improper cross-examination. See 3692, R. S. 1929; State v. Pierson, 56 S.W.2d 120. Prejudicial and improper cross-examination of appellant is reversible error. State v. Pierson, 56 S.W.2d 125. The testimony of Billingsley and Williams was inadmissible and the court erred in admitting said testimony in rebuttal, as an attempt to impeach the defendant. A witness cannot be impeached by proving misstatements as to a collateral matter. State v. Beatty, 94 S.W.2d 907; State v. Barker, 246 S.W. 909; Janis v. Jenkins, 58 S.W.2d 298; State v. Murphy, 100 S.W. 414. (4) Evidence is incompetent in any case wherein or when it fails to throw any light upon the crime of which defendant is charged. State v. Aurentz, 263 S.W. 178; State v. Buxton, 22 S.W.2d 635. (5) It is a settled law that counsel in their argument are not free to express their own opinion of private knowledge of the guilt of defendant, and when they so express themselves they are in peril of committing reversible error. State v. Pierson, 56 S.W.2d 125; State v. Webb, 162 S.W. 622; State v. Spivey, 90 S.W. 81; State v. Mathis, 18 S.W. 8; State v. Furgerson, 63 S.W. 101; State v. Goodwin, 217 S.W. 264. (6) The examination of the deceased's father by the State's counsel as to whether the defendant had attended the funeral of the deceased was a reversible error. State v. Pierson, 56 S.W.2d 120. The cross-examination of the defendant as to whether or not he had attended the funeral of the deceased by the counsel for the State was prejudicial and reversible error. State v. Santino, 186 S.W. 978; State v. Dixon, 190 S.W. 293; State v. Pierson, 56 S.W.2d 120; Sec. 3692, R. S. 1929; Sec. 23, Art. II, Mo. Const.

Roy McKittrick, Attorney General, and Max Wasserman, Assistant Attorney General, for respondent.

(1) The information in this case is sufficient in form and substance. Sec. 3988, R. S. 1929; State v. Scheufler, 285 S.W. 419; State v. Murphy, 324 Mo. 183, 23 S.W.2d 137. (2) The verdict is in proper form and responsive to the issues. Sec. 3997, R. S. 1929; State v. Scheufler, 285 S.W. 419. (3) Declaration to be part of res gestae need not be contemporaneous with the exciting cause. State v. Stallings, 334 Mo. 1, 64 S.W.2d 645; State v. Rodgers, 102 S.W.2d 568. (4) Court properly exercised its discretion in determining whether remarks of prosecuting attorney necessitated a reprimand, or a discharge of the jury and mistrial. State v. Nichols, 327 Mo. 1237, 39 S.W.2d 780; State v. Bundy, 44 S.W.2d 125; State v. Lynn, 23 S.W.2d 141; State v. Raines, 333 Mo. 538, 62 S.W.2d 728; State v. Cohen, 100 S.W.2d 550. (5) Appellant was cross-examined on subject within range of his direct examination. State v. Jackson, 340 Mo. 478, 102 S.W.2d 617; State v. Gilmore, 336 Mo. 784, 81 S.W.2d 432; State v. Hawley, 51 S.W.2d 78. (6) Evidence of appellant's intoxication was competent on the question of his negligence. State v. Carter, 116 S.W.2d 22; State v. Coulter, 204 S.W. 5. (7) There was sufficient evidence to make a case for the jury. State v. Campbell, 84 S.W.2d 620; State v. Studebaker, 334 Mo. 471, 66 S.W.2d 882; State v. Melton, 326 Mo. 962, 33 S.W.2d 894; State v. Millin, 318 Mo. 553, 300 S.W. 696.

OPINION

Ellison, P. J.

The appellant was convicted of manslaughter in the Circuit Court of Howell County and his punishment assessed at a fine of $ 250 and six months' imprisonment in the county jail, for the killing of a young woman, Lillian Luna, through his culpable negligence in driving an automobile which turned over while he and Miss Luna and another couple were riding therein. The State's contentions were that appellant was under the influence of intoxicating liquor and was driving recklessly. The appellant denies that and insists the State failed to make a case for the jury.

The appellant and the deceased were about twenty years old and had been going together for about six months. Both lived in West Plains. They spent Saturday evening, July 31, 1937, with another couple, Ray Kellam and Miss Fisher, at certain dining and dancing resorts near West Plains. About 11 o'clock appellant bought a half pint of whiskey and the young people danced until midnight. During that time Kellam and the appellant each admittedly took two drinks of whiskey. A third party said he saw appellant take three drinks but that was denied by appellant. Young Kellam then telephoned the mothers of the two girls and obtained permission for them to remain a while longer. Appellant drove the party in a 1937 four door Pontiac sedan owned by his mother to the Aztec, a night club on Highway 63 some 18 miles or more north of West Plains toward Willow Springs.

At the Aztec, according to the testimony of Miss Fisher and Kellam, appellant took two drinks; also he ordered beer. Miss Fisher didn't know whether he drank the beer; Kellam said he did drink part of a bottle of 3.2 beer. Appellant swore he had only one drink of whiskey at the Aztec, and that he drank no beer. He declared he had only three drinks of whiskey during the evening; that he was not intoxicated; and that Kellam drank every time he did. Kellam admitted that in addition to the two drinks he, himself, had had earlier in the evening he took a drink while they were on the way to the Aztec. Miss Fisher said he took a drink after they got there. Once in his testimony Kellam impliedly denied that and later impliedly admitted it. The two girls did no drinking. Summed up, the evidence most favorable to the State indicates the appellant had four or five drinks of whiskey and part of a bottle of beer within a period of about two hours. Kellam seems to have had four drinks of whiskey during the same time. After imbibing the two boys each ate a sandwich. The young people were at the Aztec half an hour or less, and then started back to West Plains, appellant driving and Miss Luna sitting with him. The accident occurred near Pomona, after they had gone seven or eight miles.

As to the effect of the drinking upon appellant. Miss Fisher said you could tell by his eyes and actions that he had been drinking, that was all -- he was under the influence of intoxicating liquor but not drunk. Kellam was the same. Kellam testified that appellant was not real drunk at the Aztec but was a little under the influence of liquor, as indicated by the fact that his eyes were red and he talked a little louder than usual. Among the witnesses for the State were two motorists who gave assistance at the scene of the accident, and Sergeant Turnbull of the State Highway Patrol, who saw the appellant and his three companions at the Aztec. Neither of these witnesses was asked or testified about appellant's alleged inebriety. Sheriff Claude Garrett talked to the young people about the time they were leaving the Aztec. It was his opinion that appellant was under the influence of liquor. He was also pretty sure that Kellam had taken a drink, and he thought all four might have been drinking, though he saw no signs of it from the girls. He said he didn't interfere when the party was starting to drive away because he had other business to attend to; he wasn't sure they were leaving; and he didn't know which one was going to do the driving.

When the body of Miss Luna was taken to the hospital of Dr. R. E Hogan in West Plains shortly after the accident, the doctor was within four or five feet of appellant, and thought he could smell liquor on his breath -- but he would not say how far the appellant was under the influence of liquor, or how long it had continued. Miss Fisher testified appellant showed no evidence of intoxication at the hospital, and Kellam declared he, himself, was not intoxicated when they were there. All this was about 2 A. M. The appellant consulted Dr. E. C. Bohrer regarding his own condition about 5:30 A. M. The doctor examined him and found him suffering from shock, with a bruise on his chest and minor bruises over most of his body. But he discovered no evidence of intoxication and didn't detect the odor of whiskey on appellant's breath. However he would not say this fact excluded the possibility of appellant's having been intoxicated a few...