State v. Swindell

• Decision Date: 14 June 1948
• Docket Number: 40649
• Citation: 212 S.W.2d 415,357 Mo. 1090
• Parties: State v. Amiel Swindell, Appellant
• Court: Missouri Supreme Court

212 S.W.2d 415

357 Mo. 1090

State v. Amiel Swindell, Appellant

No. 40649

Supreme Court of Missouri

June 14, 1948

Appeal from Butler Circuit Court; Hon. Randolph H. Weber Judge.

Affirmed.

J Grant Frye and Gerald B. Rowan for appellant.

(1) For the court to exclude either the acts or the words from the jury's consideration is to take one of the essential elements of self-defense out of the case. Instruction 8 excluded the words from consideration on the issue of self-defense. State v. Bongard, 51 S.W.2d 84, 330 Mo. 805; State v. Byrnes, 177 S.W.2d 909, 238 Mo.App. 220; State v. Cooper, 32 S.W.2d 1098; State v. Daugherty, 196 S.W.2d 627; Hodges v Schuerman Building & Realty Co., 174 S.W.2d 909. (2) Instruction B and Instruction C hypothesized to the jury facts which, as a matter of law, would justify the conduct of defendant on the ground of self-defense; and defendant was entitled to have them given. If the instructions were not legally correct, they at least amounted to motions for an instruction on such issues in the case and on issues of such character as to cause the court to be under duty to instruct thereon regardless of the correctness or incorrectness of the proffered instructions. State v. Singleton, 77 S.W.2d 80; State v. Fiedler, 50 S.W.2d 1031, 330 Mo. 747; State v. Ford, 130 S.W.2d 635, 344 Mo. 1219; State v. Bongard, 51 S.W.2d 84, 330 Mo. 805. (3) The limitations on the cross-examination of the prosecuting witness concerning the procuring of the wood and the failure to pay therefor and the facts incident thereto and the restrictions of the prosecuting witness' examination on the subject of his fear to have defendant arrested, as testified to in the trial, were unduly restrictive. Any facts which tend to show the state of mind of the principals, or of either of them, are relevant in a case where there are mutual charges of aggression, and there should be a mutual exploration of the animus of each party during the transaction, the motives leading up to it, and the state of mind immediately following it. State v. Sanders, 17 S.W. 223, 106 Mo. 188; State v. Walker, 227 S.W. 831, 207 Mo.App. 623; State v. Lynn, 184 S.W.2d 760; State v. Shelton, 174 S.W.2d 202, 351 Mo. 799; Roberts v. State, 269 S.W. 103, 99 Tex. Cr. App. 492; City of Gallatin v. Fammin, 107 S.W. 479, 128 Mo.App. 324. (4) The examination of defendant about whether or not the doctor treated his head was beyond his examination in chief, and for that reason was erroneous; but the matter was accentuated and the damage made greater by allowing the doctor to be called as a witness in rebuttal to contradict the defendant's testimony on that subject. State v. Valle, 93 S.W. 1115, 196 Mo. 29; State v. Bunton, 280 S.W. 1040, 312 Mo. 655; State v. Nicholson, 7 S.W.2d 375. (5) The restriction by the court on the argument of defendant's counsel and the remarks of the court incident thereto were unwarranted and prejudicial. State v. Florian, 200 S.W.2d 64; State v. Johnson, 174 S.W.2d 139, 351 Mo. 785; State v. Rosengrant, 93 S.W.2d 961, 338 Mo. 1153. (6) The conduct of the state's counsel in the closing argument had the effect of discrediting the good faith of defendants' counsel, was necessarily imputed to the defendant, and was wholly unwarranted. State v. Nicholson, 7 S.W.2d 375; State v. Bowenkamp, 39 S.W.2d 753; State v. Pagels, 4 S.W. 931, 92 Mo. 300.

J. E. Taylor, Attorney General, and John R. Baty, Assistant Attorney General, for respondent.

(1) The court did not err in giving Instruction 8. State v. Brown, 165 S.W.2d 420; State v. Talbert, 354 Mo. 410, 189 C.W. (2d) 555; State v. Johnson, 349 Mo. 910, 163 S.W.2d 780. (2) The court did not err in refusing to give Instructions B and C as requested by the defendant. State v. Sapp, 203 S.W.2d 425; Sec. 4125, R.S. 1939; State v. Ward, 337 Mo. 425, 85 S.W.2d 1. (3) The court did not err in refusing to direct a verdict for appellant on the ground that the state's evidence showed, as a matter of law, that defendant acted in self-defense. State v. Singleton, 77 S.W.2d 80; State v. Frazier, 339 Mo. 966, 98 S.W.2d 707. (4) The court did not err in limiting the cross-examination of the prosecuting witness concerning the procuring of wood and facts incident thereto and on the subject of prosecuting witness' fear to have defendant arrested. State v. Bobbitt, 242 Mo. 273, 146 S.W. 799; Roy v. Kansas City, 204 Mo.App. 332, 224 S.W. 132; State v. Gabriel, 301 Mo. 365, 256 S.W. 765; State v. Rose, 339 Mo. 317, 96 S.W.2d 498. (5) The court did not err in compelling appellant to answer on cross-examination about the treating of his head by the doctor nor in calling the doctor to testify concerning the bumps on his head. Sec. 4181, R.S. 1939; State v. Ayres, 314 Mo. 574, 285 S.W. 997; State v. Tull, 333 Mo. 152, 62 S.W.2d 389; State v. Keener, 225 Mo. 488, 125 S.W. 747; State v. Lewis, 137 S.W.2d 465. (6) The court did not err in his rulings on objections to the closing argument of counsel for the state. State v. Lynn, 23 S.W.2d 139; State v. Messino, 325 Mo. 743, 30 S.W.2d 750; State v. Reagan, 108 S.W.2d 391; State v. Fitzsimmons, 338 Mo. 230, 89 S.W.2d 670. (7) The court did not err in restricting the counsel for appellant in his closing argument. 23 C.J.S., p. 522; State v. Florian, 200 S.W.2d 64; State v. Shilkett, 204 S.W.2d 920.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Defendant was convicted of felonious assault without malice aforethought committed upon one W. E. Strobel by stabbing him with a knife in violation of Sec. 4409 R.S. 1939. The punishment was assessed by a jury at a fine of $ 200.

The assault was committed in Stoddard county. After a trial of the cause in that county, at which trial the jury was unable to agree upon a verdict, the cause went on change of venue to Butler county, where the cause was retried and this appeal taken.

Error is assigned on the court's refusal to direct a verdict in favor of appellant, on the giving and refusal of instructions and on certain rulings made by the court during the cross-examination of the prosecuting witness and the cross-examination of the appellant and during the argument of counsel for appellant and for the state.

Appellant, referred to as "Bunk," resided at Delta, in Cape Girardeau county, where he and one Eaton operated a sawmill. Strobel resided on a farm six and one-half miles north of Bloomfield, in Stoddard county and some 25 miles from Delta. Prior to the difficulty here, Strobel had gotten two loads of wood from appellant's sawmill at Delta. On the afternoon of November 23, 1946, appellant, with Eaton and appellant's wife and two small children, went in Eaton's automobile to Strobel's home. They arrived just after dark and drove up a private road to within about 125 feet of the house and stopped 25 feet from the yard gate. Eaton was in the driver's seat, appellant was beside him and appellant's wife and children were in the back seat. They remained in the automobile, left the lights on, and, when Strobel's grandson appeared, they asked for Strobel. When Strobel came out, he approached the automobile from the front and left. He had known appellant all his life, but he did not then know appellant was in the automobile. Appellant got out of the automobile on the right hand side and met Strobel near the left front of the automobile, where an argument and a fight ensued. Appellant contends that "the state's evidence showed, as a matter of law, that defendant acted in self-defense."

Strobel testified that, as he approached the automobile, the appellant came around the front of it to meet him, stopped right in front of him, facing him, in reach of him, and raised his leg and shook his leg and his hand. Strobel said he could see that appellant "had a knife or something by his actions," and Strobel said: "Bunk, you have come for trouble, you have got your knife." At that time appellant's wife, seated in the back seat of the automobile, raised two fingers and said something about telling Strobel "not to get that wood" unless he saw appellant. She had told Strobel "on the 18th to not bother that wood" unless he saw appellant. Strobel could see her through the window of the automobile and he replied "I know and I didn't get no wood that day, but Bunk owes me for log hauling." Appellant then said to Strobel, "You owe me and Tom" (appellant's brother). Strobel further testified: "Bunk says, you owe me and Tom, and I said, what for, and he said for work, and I said, you are a lying s of a b ." When those words were spoken, appellant said nothing, but cut Strobel with a knife. Strobel testified: "Nothing more than I said you are a lyin s of a b and he cut me. . . . He came around the car on me. . . . When he stabbed me, first he cut me here, as he run into me, and he put his head sideways against me here. . . . He cut me right in there with something another. I didn't see what it was. . . . Well evidently he must have cut me with his right hand. . . . He had me clinched up and . . . he tried to hold to me. The side of his head was against my breast and he was coming like that and I could tell or feel something cutting me every time he hit me." Appellant's other hand was around Strobel's back. Strobel's grandson said that appellant "just kinda rushed and clinched" and that Strobel was trying to shove him off and push him away. Strobel also said that he was trying to push appellant off and that he did not strike appellant at any time. Strobel had put on a jumper when he left the house, but, when he saw appellant had a knife, he took off the jumper and threw it aside. He said he was afraid to run. He threw the jumper aside, before he called appellant a lying s of a b . Strobel had only "a little knife . . . for general purposes like any...