State v. Stein

• Citation: 79 Mo. 330
• Parties: THE STATE v. STEIN, Appellant
• Decision Date: 31 October 1883
• Court: United States State Supreme Court of Missouri

79 Mo. 330

THE STATE

v.STEIN, Appellant

Supreme Court of Missouri.

October Term, 1883.

Appeal from Jackson Criminal Court.--HON. H. P. WHITE, Judge.

REVERSED.

L. C. Slavens and John W. Wofford for appellant.

D. H. McIntyre, Attorney General, for the State.

NORTON, J.

At the May term, 1883, of the criminal court of Jackson county, defendant was indicted for murder in the first degree for killing one George Fredericks, in Kansas City, on the 9th day of June, 1883. He was arraigned on this indictment on the 16th day of June, 1883, and entered his plea of not guilty, and by agreement of parties, the court set the cause down for trial on the 16th day of July, 1883, at which time, after defendant's motions for a continuance and change of venue had been overruled, the trial was proceeded with, which resulted in the conviction of defendant for murder in the second degree, and the assessment of his punishment at twenty-five years' imprisonment in the penitentiary. From this judgment defendant has prosecuted his appeal to this court, and assigns among other grounds of error the following, viz: that the court erred in overruling defendant's application for a continuance, also in overruling his challenge to certain jurors; also in giving improper and refusing proper instructions, also in admitting improper and rejecting proper evidence.

The last of the above assigned grounds of error will be considered first. While the record shows numerous exceptions to the action of the court in receiving and rejecting evidence, we shall confine ourselves to the investigation of those exceptions only, upon which counsel in their argument mainly relied, and the chief one of these is as to the action of the court in refusing to allow defendant to read in evidence a certain letter of witness Foster.

1. IMPEACHMENT OF WITNESSES.

During the trial the State introduced one J. C. Foster as a witness, who, after stating that on the day the deceased was shot, and after the shooting, about midnight of the day it was done, he had a conversation with defendant, was asked the following question: “In that conversation did you say to him ‘I should have thought George would have heared the click of the hammer of the revolver, when you cocked it, and that he said no--that is, he, Stein--no, I cocked it when I pulled it out of my pocket, and that he, Stein, was two steps higher up the steps than Fredericks.” The answer of witness to this question was: “Yes, sir, he stated so.” It appears from cross-examination of this witness, that his business was that of a detective, and that the question also propounded was read from a paper which the witness had written down and voluntarily handed to the prosecuting attorney. It further appears that during the cross-examination a letter was handed to the witness, and he was asked if it was in his handwriting, and whether he wrote it, to which he replied that it was written by him. The examination of the witness was closed, and he was dismissed, and thereupon defendant offered to read the letter which the witness admitted he wrote and which reads as follows:

ST. JAMES HOTEL, KANSAS CITY, MO., 7, 15, 1883. “ORTH H. STEIN:

Dear Sir: I have had a talk with your uncle Dykeman, but he says nothing about my trying to aid you. I told your uncle that I could furnish positive proof in your favor, that would do you more good than a ten-hour speech of Major Warner, for one-third of the money he (Warner) was to get, or that he charged for his talk, to-wit, $1,500. Now, if anything is done with me, you must have some one speak at once, as I may be employed in some other direction.

Respectfully,

J. C. FOSTER.”

This evidence was objected to on the ground that it was incompetent because it did not relate to the facts of the case. It seems from the record that the court sustained the objection on the ground that the witness ought first to have been examined as to its contents. We are of the opinion that the ruling of the court was erroneous, and that the evidence offered should have been allowed to go to the jury, as tending to show that the witness was biased or corrupt and willing to serve either the defendant or State in furnishing evidence, for a price to be paid either by one or the other party, and it mattered not which.

In a case where the evidence of the witness is sought to be impeached by showing that he has made statements contrary to what he has testified to on the trial, it is generally held necessary in the case of verbal statements, before this can be done, to ask him as to where, when and to...