State v. Simmons

• Citation: 58 S.W.2d 302,332 Mo. 247
• Decision Date: 03 March 1933
• Docket Number: 32368
• Parties: The State v. Elmer Simmons, Appellant
• Court: United States State Supreme Court of Missouri

58 S.W.2d 302

332 Mo. 247

The State v. Elmer Simmons, Appellant

No. 32368

Supreme Court of Missouri

March 3, 1933

Appeal from Dunklin Circuit Court; Hon. W. S. C. Walker Judge.

Affirmed.

Bradley & Bradley for appellant.

(1) The information upon which the defendant was tried is insufficient in form and substance to charge the defendant with the offense of which he was convicted, to-wit: murder in the second degree. State v. Barr, 34 S.W.2d 277; State v. Connell, 49 Mo. 286. (2) The information shows on its face that James V. Billings made the oath supporting said information, and that Elbert L. Ford Prosecuting Attorney, signed his name to the oath purported to have been made by James V. Billings. Sec. 3504, R. S 1929; State v. Barr, 34 S.W.2d 477; State v. Connell, 49 Mo. 286; State v. Bonner, 178 Mo. 424; State v. Brown, 304 Mo. 78; State v. Hicks, 178 Mo. 433; State v. Zehnder, 182 Mo.App. 161; State v. Pruitt, 327 Mo. 1194. (3) The information attempts to charge murder in the first degree and does not conclude as being upon the oath of the prosecuting attorney as required by law. State v. Barr, 34 S.W.2d 477; State v. Connell, 49 Mo. 286. (4) The court erred in admitting, over objection and exception, the evidence of Mrs. Ted Cross as shown in Assignment No. 4, as the testimony had no bearing on the case, and was intended to create the inference that defendant invited deceased to his home in order to kill him. It is the unwarranted inference that was sought to be created that made this evidence so highly prejudicial. It was calculated to create a prejudice against defendant. State v. English, 67 Mo. 136. (5) The court erred in admitting, over objections and exceptions, the evidence of Mrs. Ted Cross as shown in Assignment No. 6 as this testimony had no connection with defendant's case and was calculated to give the jury the wrong impression as to the reason for this evidence and to the great prejudice of the defendant, and doubtless did impress the jury as evidence against the defendant. State v. English, 67 Mo. 136. (6) The court erred in permitting the State over exceptions and objections, to improperly cross-examine the defendant as complained of in Assignment No. 12, on matters not brought out in direct examination, and especially why he came in at the front door since he had gone out at the back door, and requiring defendant to tell where he shot Ted Cross, and what Ted Cross said after he was shot. State v. Bowman, 272 Mo. 501, 199 S.W. 161; State v. Swearengen, 269 Mo. 185, 190 S.W. 286; State v. Pfeifer, 267 Mo. 31, 183 S.W. 337; State v. Salter, 256 S.W. 1068; State v. White, 223 S.W. 683; State v. Lasson, 238 S.W. 101, 292 Mo. 155; State v. Cummins, 213 S.W. 969, 279 Mo. 198; State v. Saunders, 232 S.W. 973, 288 Mo. 640; State v. Guerringer, 265 Mo. 408, 178 S.W. 65; State v. Grant, 144 Mo. 56, 45 S.W. 756; State v. Hathhorn, 166 Mo. 229, 65 S.W. 756; State v. Hudspeth, 150 Mo. 31, 51 S.W. 483; State v. Spray, 174 Mo. 569, 74 S.W. 486. (7) The court erred in giving, over objections and exceptions, Instruction 7 as complained of in Assignment No. 18, and for the reasons as therein set out. State v. Barr, 34 S.W.2d 477. (8) The court erred in giving, over the exceptions and objections of the defendant, Instruction 8, as complained of in Assignment No. 19, and for the reasons as therein set out. State v. Floyd Rogers, 253 Mo. 399, 161 S.W. 770; State v. Mitchell, 229 Mo. 683, 129 S.W. 138. (9) The court erred in permitting the State, over objections and exceptions, to improperly cross-examine the defendant's wife as complained of in Assignment No. 26, and for the reasons as therein set out. State v. McDonough, 232 Mo. 219, 134 S.W. 545.

Stratton Shartel, Attorney-General, for respondent; Sidney C. Roach of counsel.

(1) Points 1, 2, and 3 of defendant's motion for new trial, that the verdict is against the evidence, no substantial evidence to support, and against the law, and insufficient to support the verdict, are too general in character to require an answer, and should be ruled against appellant. Sec. 3735, R. S. 1929, and cases cited; State v. Standifer, 316 Mo. 52. We may add -- there is abundant evidence to support the verdict; defendant admitted the killing, stating he intended to kill, and undertook to justify the killing on the ground of self-defense. (2) The information does state the venue in the caption, also again states the venue and time in the body of the information. This is sufficient. Secs. 3555, 3563, R. S. 1929; State v. Connor, 300 S.W. 685, 318 Mo. 592; State v. Fields, 262 Mo. 158; State v. McDonough, 232 Mo. 219; State v. Long, 209 Mo. 366. It is stated in the body of the information that same is filed by "Elbert L. Ford, Prosecuting Attorney within and for the County of Dunklin, in the State of Missouri, upon his oath of office, and upon his hereto appended oath, and upon his knowledge, information and belief." The information is signed by "Elbert L. Ford, Prosecuting Attorney within and for Dunklin County, Missouri." The appended affidavit, although mentioning the name of "James V. Billings" as making the oath, is actually signed by "Elbert L. Ford, Prosecuting Attorney within and for Dunklin County, Missouri," and his oath so made, is properly certified by the clerk of the court as having been made by the prosecuting attorney. It is sufficient if the prosecuting attorney sign the information, without signing the affidavit, if the clerk of the court certify to his oath, which was done in this case. State v. Hicks, 178 Mo. 433; State v. Zehnder, 182 Mo.App. 161; State v. Brown, 304 Mo. 78; State v. Lee, 303 Mo. 246; State v. Stewart, 274 Mo. 649; State v. Carroll, 288 Mo. 392. (3) The court did not err in admitting the testimony of Mrs. Ted Cross as to what was said and done in the presence of the defendant the evening before the killing took place. Such evidence was properly admitted to show the state of feelings of the parties. Cross-examination of defendant is not limited to a mere categorical review of matters stated in direct examination. State v. Glazebrook, 242 S.W. 928; State v. Burgess, 193 S.W. 821; State v. Wilson, 12 S.W.2d 445; State v. Miller, 156 Mo. 76; State v. Lemon, 263 S.W. 186. Where defendant takes the stand he is subject to be contradicted and impeached as any other witness. Sec. 3692, R. S. 1929; State v. Bugg, 316 Mo. 581. Defendant may be cross-examined as to details of a transaction directly testified to by him. State v. Pool, 314 Mo. 673. (4) There are no errors of a prejudicial character in any of the instructions given by the trial court. Instructions were properly given on the law of murder in the first degree, second degree, manslaughter, and self-defense. The instructions taken all together are exact, compact, concise, and applicable to the law and evidence involved in the case. These instructions, first and last, properly declare the law and have received the approval of this court. State v. Clinton, 278 Mo. 347; State v. Turlington, 102 Mo. 660; State v. Colvin, 226 Mo. 475; State v. Lucas, 316 Mo. 912; State v. Stogsdill, 324 Mo. 105.

Westhues, C. Cooley and Fitzsimmons, CC., concur.

OPINION

WESTHUES

In the Circuit Court of Dunklin County, Missouri, appellant was convicted of murder in the second degree. His punishment was assessed at forty years' imprisonment in the State penitentiary. A motion for a new trial was timely filed and overruled. Thereafter defendant was sentenced and from this sentence an appeal was taken.

Appellant was charged with murder in the first degree. The evidence adduced reveals the following: Appellant and deceased, Edgar Connor, alias Ted Cross, lived in Kennett, Dunklin County, Missouri. A short time prior to the fatal shooting the father of appellant had been robbed. Deceased was charged with this crime. At a preliminary hearing he was bound over to the circuit court for trial. The evidence reveals that deceased made a number of threats to the effect that if the case against him was not dismissed appellant and his father, Charles Simmons, would not be there to appear against him in the circuit court. On Thursday, June 4, 1931, prior to the homicide on June 6, appellant was at the home of deceased and had a conversation with him concerning the charge of robbery. Appellant invited deceased to visit him at his home. On Saturday morning, June 6, Ted Cross went to the home of appellant and they and others soon engaged in a game commonly known as "crap shooting." Ted Cross, the deceased, won all of the money, amounting to about four dollars, and a billfold belonging to appellant. The evidence does not disclose any quarrel or ill feeling as a result of this gambling. All the parties present had partaken of home-brew of which there seemed to be no shortage. When the game broke up appellant and a witness named Boswell left the house for a few minutes leaving Ted Cross, appellant's wife, and two small children in the home. Thus far there is little dispute in the evidence. What occurred on appellant's return, according to his testimony, is that his wife informed him that Ted Cross had insulted her. Thereupon appellant obtained a revolver, which was in one of the rooms, placed it in his pocket and went to the room where Ted Cross was and asked him what he meant by insulting his wife. Deceased responded by picking up a beer bottle and with an oath declared that he was going to finish appellant then and there and proceeded towards appellant as if to strike him upon the head with the bottle. Appellant fearing that his life was in danger drew his revolver and shot deceased. The bullet entered deceased's chest, severed a large artery and resulted in death within a few minutes. The State's evidence tends to prove that when appellant r...