State v. Salts

• Citation: 56 S.W.2d 21
• Decision Date: 14 December 1932
• Docket Number: No. 32288.,32288.
• Parties: THE STATE v. AMIL SALTS, Appellant.
• Court: United States State Supreme Court of Missouri

56 S.W.2d 21

THE STATE v. AMIL SALTS, Appellant.

No. 32288.

Supreme Court of Missouri, Division 2.

December 14, 1932.

Appeal from Phelps Circuit Court. — Hon. J.H. Bowron, Judge.

AFFIRMED.

Williams & Stone and Charles L. Henson for appellant.

(1) When an indictment is found the names of the material witnesses must be endorsed on the indictment. Sec. 3544, R.S. 1929. And in like manner the names of witnesses must be endorsed on the information. Sec. 3504, R.S. 1929. The objection of endorsing the name of a witness on an information is to give the defendant an opportunity to come prepared to meet the evidence of such witness at the trial and to obviate surprise. State v. Whitsett, 232 Mo. 511, 134 S.W. 555; State v. Cook, 3 S.W. (2d) 365; State v. Roy, 83 Mo. 268. The proper procedure when an endorsement is made at the opening of the trial is to move the court for a continuance on the ground of surprise. State v. Wilson, 12 S.W. (2d) 445, 321 Mo. 564; State v. Whitsett, supra. Apparently this court has never held that it was error for the trial court to permit the endorsement of additional names on the day of trial, but the trial court may be held to be in error in refusing a continuance or postponement when asked on account of the belated endorsement. State v. Jennings, 34 S.W. (2d) 50; State v. Kuebler, 14 S.W. (2d) 449. However, the court has disapproved belated endorsements (Kuebler Case, supra) and said that the prosecuting attorney should be solicitous to see that the names of witnesses to be used are endorsed. State v. Garrish, 29 S.W. (2d) 71. (2) The defendant is entitled to a jury not only one disinterested and unprejudiced and willing to try the case on the evidence adduced, but a jury, every man of whom will follow the instructions of the court on the law. The qualifications of a juror must be decided by the court and not the juror. State v. White, 34 S.W. (2d) 79; State v. Conner, 252 S.W. 713; Theobald v. Transit Co., 191 Mo. 395, 90 S.W. 354; Gibney v. Transit Co., 204 Mo. 704, 103 S.W. 43. Although the disposition of a challenge of a juror for cause rests largely in the sound discretion of the trial court, it nevertheless is a reviewable discretion and one that must be exercised without palpable abuse. Bright v. Sammons, 214 S.W. 425; Kelley v. Sinn, 277 S.W. 360. (3) The plan or intention of an actor or doer is held to be properly admitted in evidence as it possesses probative value in an action involving a judicial inquiry into the nature of the act. Barton v. Faeth, 193 Mo. App. 402, 186 S.W. 52; Chambers v. Chambers, 227 Mo. 262, 127 S.W. 86; State v. Cruto, 231 S.W. 602. (4) The court in its instructions should not assume a disputed fact nor give an ambiguous one. State v. Jones, 306 Mo. 450; State v. Ferguson, 221 Mo. 524; State v. Steele, 226 Mo. 583; State v. Creed, 252 S.W. 678; State v. Hopkins, 213 S.W. 126. (5) The court in its instructions should not single out any particular portion of the evidence and comment upon it. State v. Carr, 256 S.W. 1048; State v. Finkelstein, 191 S.W. 1002, 269 Mo. 612; Loss v. K.C. Ry. Co., 233 S.W. 70; State v. Clough, 38 S.W. (2d) 36. Even an instruction to the effect that the defendant is a competent witness and that his evidence cannot be disregarded because he is the defendant is a comment on the evidence and properly refused. State v. Johnson, 234 S.W. 794.

Stratton Shartel, Attorney-General, and C.A. Powell, Assistant Attorney-General, for respondent.

(1) The motion for continuance was properly overruled. An application for continuance is addressed to the sound discretion of the trial court and the action of the court in overruling the application will not be reversed unless it clearly appears that the trial court abused its discretion and the defendant was thereby prejudiced. State v. Kuebler, 14 S.W. (2d) 449; State v. Messino, 30 S.W. (2d) 750; State v. Mosley, 22 S.W. (2d) 784. In the case at bar the names of only two witnesses, James Chambers and Daisy Chambers, were endorsed on the information over the objection of the defendant. The name of Frank Chambers was withdrawn by the prosecuting attorney. Furthermore, neither Frank Chambers nor James Chambers testified. (2) Every objection by appellant to the cross-examination of the witness Sadie Snodgrass, was sustained by the trial court except as follows: "Q. Do you know a man by the name of Elms? A. Yes, indeed I do. BY MR. WATSON: Wait a moment. That is wholly immaterial. BY THE COURT: Overruled. Proceed." This objection was made too late. State v. Keller, 281 S.W. 960. And was insufficient. State v. Hatcher, 259 S.W. 467. (3) The refusal to allow the appellant to testify concerning calling at the home of the deceased a few days prior to the shooting was proper and harmless, since there was no offer of proof that defendant was threatened or abused in any way on that occasion, and since defendant testified that he and deceased were friends and had never had any trouble. Such evidence was incompetent for any conceivable purpose. (4) Error in sustaining the State's objection to the testimony of appellant that he intended to miss the deceased when he shot, is harmless, since appellant answered that he did not intend to hit him, and his answer was not stricken. State v. Fletcher, 190 S.W. 321. (5) An erroneous instruction does not constitute reversible error unless it is prejudicial to the accused. State v. Davis, 34 S.W. (2d) 133; State v. Young, 286 S.W. 29. In arresting for a misdemeanor or for violating a city ordinance, such as for maintaining a nuisance, an officer is never authorized to shoot to accomplish the arrest, to maintain the arrest, or to prevent an escape. State ex rel. Kaercher v. Roth, 49 S.W. (2d) 109; State v. McGehee, 274 S.W. 70; Gray v. Earls, 250 S.W. 567. Therefore, since the appellant had no authority to shoot deceased in this case, except in self-defense, he is not prejudiced by any error, if any, in Instruction S-7.

FITZSIMMONS, C.

Appellant was found guilty of manslaughter and his punishment was fixed at eight years' imprisonment in the State Penitentiary. The information upon which appellant was tried charged him with the murder in the first degree of Joseph Loughridge in Phelps County, Missouri, on June 26, 1929. Appellant was tried three times. The jury in the first trial failed to agree. Upon the second trial appellant was found guilty of murder in the second degree but he was granted a new trial. The third trial ended with the manslaughter verdict mentioned above. The motion for a new trial was overruled, final judgment duly rendered and an appeal granted.

The evidence is undisputed that the deceased, Loughridge, resided with his family in the southwest part of Rolla, in Phelps County. He was in the business of hauling ashes and rubbish which he dumped along the bank of a branch running through his home place. Appellant, Amil Salts, was deputy marshal of Rolla and his father was the police judge. On June 26, 1929, the police judge gave to appellant a warrant of arrest addressed to the marshal of the city of Rolla reciting that complaint had been made that Loughridge maintained a nuisance on his lot and commanding the marshal to arrest Loughridge and to bring him forthwith before the police judge. On the afternoon of the same day, appellant went to the home of Loughridge and found him seated in a shed sharpening a hatchet. Appellant read the warrant to Loughridge, who put the batchet away and arose. There is a conflict of testimony as to the subsequent events.

On the part of the State the wife and two sons of Loughridge and other witnesses testified that, after appellant read the warrant to the deceased, he told Loughridge to come with him. Loughridge relied: "No you go on and I will come." Loughridge then stepped out of the woodshed toward the appellant who stepped backward. Appellant, while he was moving away, unfastened a pistol which he had fastened to his belt, and fired at Loughridge. He moved further away to a point near the wheel of a wagon in the yard and fired two more shots. Appellant himself testified that he fired three times from the hip. Two bullets entered the body of the deceased and produced fatal wounds. The third wound was found in the fleshy part of the right arm, and the coroner testified that he found evidence in the examination of the body to indicate that the wound in the arm and one of the wounds in the body were caused by the same bullet. All of the witnesses for the State testified that Loughridge did not have a hoe or any other weapon in his hands at the time of the shooting: that his arms were down and that he made no menacing threats or movements toward appellant. There was also testimony on behalf of the State that before appellant went to the home of Loughridge, he was heard to say that when he went to arrest Loughridge he would get him or his careass.

Appellant on his own behalf testified that after he read the warrant to Loughridge and told him to come with him, appellant turned and started to leave the woodshed; that Loughridge made some remark which appellant did not hear, and appellant turned and saw Loughridge take a hoe from the woodshed and start toward him with it drawn over his left shoulder in a threatening manner. He further testified that at the same time Loughridge stated that he would not go with appellant anywhere and that he would kill him. Appellant also testified that he then backed away from the woodshed; that he unfastened his pistol and informed the deceased that he would shoot him if he did not stop; that the deceased continued to advance and appellant fired three shots. Loughridge, after the third shot, staggered over to the corner of his home and fell dead. Appellant offered evidence tending to show that Loughridge had a bad reputation as a peaceable and law-abiding citizen and the State offered testimony to the effect that his reputation was good in these respects. Other details of...