State v. Tatman

• Decision Date: 30 March 1915
• Citation: 175 S.W. 69,264 Mo. 357
• Parties: THE STATE v. JOHN TATMAN, Alias JOHN TRAINOR, Appellant
• Court: Missouri Supreme Court

175 S.W. 69

264 Mo. 357

THE STATE v. JOHN TATMAN, Alias JOHN TRAINOR, Appellant

Supreme Court of Missouri, Second Division

March 30, 1915

Appeal from Jackson Criminal Court. -- Hon. E. E. Porterfield Judge.

Affirmed.

O. F Wimmer and Ben T. Hardin for appellant.

(1) The conduct of the assistant prosecuting attorney, in his closing argument to the jury, was of the most flagrant and reprehensible type. It was calculated to and did arouse the passions and prejudice of the jury, and inflamed their minds and it was highly prejudicial and injurious to the rights of this defendant, and constitutes reversible error in this case. State v. Webb, 254 Mo. 428; State v. Wellman, 253 Mo. 316; State v. Baker, 246 Mo. 376; State v. Brown, 247 Mo. 729; State v. Deitz, 235 Mo. 339; State v. Hess, 240 Mo. 159; State v. Spivey, 191 Mo. 112; State v. Schneiders, 168 S.W. 608; State v. Horton, 247 Mo. 666. (2) The court erred in permitting the prosecuting attorney, in his opening statement to the jury, over the objections of the defendant, to refer to the shooting of witness Feltz at Thirtieth and Oak streets an hour before Lynch was shot, and to refer to the bulletin having written memoranda of things which had been taken from men in this city; and in referring to "this man across the table" and his codefendant as "hold-up men" and stating that the bulletin described them, and that "the bulletin said for him (Lynch) to arrest those men." Same authorities as cited in Point 1. (3) It was reversible error for the court to permit the State, over the objections of the defendant, to give evidence of other crimes alleged to have been committed by defendant and his codefendant, Sherman. That they "gave up" rain coats. And to offer evidence of "a certain open-faced gold watch, bearing the initials 'E. H. S.' on it." Those crimes, if committed by defendant and Sherman, had not the slightest connection with the crime for which defendant was then on trial. State v. Webb, 254 Mo. 435; State v. Wellman, 253 Mo. 314; State v. Duff, 253 Mo. 422; State v. Hyde, 234 Mo. 224. (4) The court erred in admitting evidence given by witness, Feltz, that he saw defendant and Sherman in front of his home at 3220 Oak street, at ten o'clock at night, about an hour before Lynch was shot; that one of them had a pistol. It was shown by Chief Griffin, that Feltz was shot there that night. This was proof of other alleged crimes against this defendant. (5) This judgment should be reversed because of the misconduct of prosecuting attorney, Jacobs, in recalling the witness Feltz in rebuttal, and asking him again if he saw defendant, Tatman and Sherman at Thirtieth and Oak street on the night of April 30th. He had so testified in his first examination, against defendant's objection that he saw them "about ten o'clock" the night Lynch was shot. On objection being sustained to the question, said prosecuting attorney was guilty of most reprehensible and wholly inexcusable conduct, of the most prejudicial type, in violation of defendant's rights, and in violation and absolute disregard of the court's ruling on the last question asked by him immediately previous thereto. He asked witness: "I will ask you whether or not a shot was fired at you at ten o'clock on the night of April 30th, in the neighborhood of Thirtieth and Oak street in this city." On objection of defendant's counsel, which he must certainly have known would promptly be sustained by the court, he beat the court to it, and before the court could rule on the question, he did worse than before: he replied to defendant's objection, by saying: "We are going to contradict the defendant's testimony that this one shot that was fired out of his pistol was fired at his foot." He had just as well asked Feltz, after he had already asked him if he saw Tatman and Sherman there at ten o'clock, he had just as well asked the question: "I will ask you whether or not a shot was fired at you by defendant Tatman, at ten o'clock on the night of April 30th, in the neighborhood of Thirtieth and Oak, in this city," in the very face of the court's immediately previous ruling that he could not even show that witness saw Tatman and Sherman in that neighborhood. This conduct on the part of the prosecuting attorney constitutes reversible error in this case. State v. Webb, 254 Mo. 434. (6) The court further erred in allowing the prosecuting attorney, over defendant's objections, to ask him on cross-examination as to his knowledge that he was in company with a "stick-up" man, and, "isn't it the truth that when you walked half way across the street that you were then headed for the drug store at Ninth and Benton for the purpose of robbing it?" Also, "Had you been car riding to Thirtieth and Oak that night?" Also: "I will ask you if it is not a fact that the second shot fired out of your pistol, accounting for the empty shell in your pistol, was not fired out of your pistol an hour before at Thirtieth and Oak streets in this city?" Defendant in his examination in chief, had not referred, even in the most distant or indirect manner, to having been at Thirtieth and Oak streets; or to any shot having been fired there, or to any second shot having been fired out of his pistol. He testified that only one shot was fired out of his pistol that night, and that one was fired by Lynch after he took defendant's pistol from him, and that shot went through defendant's foot. State v. Horton, 247 Mo. 666; State v. Webb, 254 Mo. 434; State v. Kyle, 177 Mo. 663; State v. Hathhorn, 166 Mo. 239; State v. Grant, 144 Mo. 63.

John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.

(1) If an officer suspects from his own knowledge of facts or from facts communicated to him by others, that a felony has been committed and has reasonable ground to believe that the accused is guilty of the felony he may arrest him. State v. Spaugh, 200 Mo. 604; State v. Cushinberry, 157 Mo. 181; State v. Craft, 164 Mo. 653; State v. Albright, 144 Mo. 653; State v. Fuller, 96 Mo. 168; State v. Evans, 161 Mo. 108; State v Holcomb, 86 Mo. 381; State v. Dierberger, 96 Mo. 672. (2) The statement of appellant that on the night of the homicide he, in company with his codefendant whom he knew to be a "hold-up" man, went to the place of the homicide to look over a drug store situated there, was competent evidence to show his business there armed, and to show the deceased officer had reasonable cause taken in connection with their actions there at that time and information he had of other crimes committed in that neighborhood by persons answering the description of appellant and the authority of the officer to arrest him without a warrant. See authorities cited supra. (3) Where the prosecuting attorney indulges in improper argument and on objection of defendant the court requests the jury to disregard the statements and admonishes the prosecuting attorney to keep within the record, the defendant if not satisfied should ask the court to take further action and failing so to do acquiesces in the action of the court. State v. Wana, 245 Mo. 563; State v. Raftery, 252 Mo. 83. (4) Improper remarks made by the prosecuting attorney in either his opening statement or argument to the jury are not reviewable on appeal unless objected to at the time. State v. Gartrell, 171 Mo. 512; State v. Grace, 230 Mo. 307; State v. Phillips, 233 Mo. 307. (5) Where the prosecuting attorney is rebuked by the court for improper remarks, that will ordinarily be sufficient. State v. Duelly, 245 Mo. 188; State v. Ferrell, 246 Mo. 333; State v. Kullman, 225 Mo. 632. (6) A defendant on the witness stand may be cross-examined in detail as to any matter referred to in his examination in chief and may be contradicted and impeached as any other witness in the case. Sec. 5242, R. S. 1909; State v. Larkin, 250 Mo. 234; State v. Miller, 156 Mo. 85; State v. Sharp, 233 Mo. 284; State v. Barrington, 198 Mo. 71; State v. Feeley, 194 Mo. 315; State v. Kyle, 177 Mo. 663; State v. Fisher, 162 Mo. 172; State v. Cunningham, 154 Mo. 174; State v. McLaughlin, 149 Mo. 29; State v. Punshon, 133 Mo. 54; State v. Eisenhour, 132 Mo. 148; State v. Harvey, 131 Mo. 345; State v. Kennade, 121 Mo. 413; State v. Avery, 113 Mo. 498; State v. McKenzie, 102 Mo. 632; State v. West, 95 Mo. 142; State v. Brannum, 95 Mo. 22; State v. Berning, 91 Mo. 85; State v. Taylor, 134 Mo. 156; State v. Miller, 190 Mo. 462; State v. Keener, 225 Mo. 499; State v. Donnington, 245 Mo. 354. (7) It was competent for the prosecuting attorney in his opening statement to refer to and also to introduce in evidence the police bulletin issued to officers concerning crimes committed and descriptions of the perpetrators describing appellant and his confederate to show that the officer had reasonable cause to arrest them. State v. Spaugh, 200 Mo. 605. (8) When the prosecuting attorney makes improper remarks to the jury in his argument and withdraws them and again repeats them and again withdraws them the Supreme Court, if convinced of appellant's guilt, will affirm the judgment. State v. Baker, 246 Mo. 376. (9) Evidence of other crimes committed by one on trial for homicide is admissible for the purpose of showing that the officer had reasonable grounds for attempting to make the arrest and for the purpose of showing a motive for the homicide. State v. Grant, 79 Mo. 136; State v. Rudolph, 187 Mo. 84; State v. Collins, 181 Mo. 259; White v. State, 70 Miss. 255; People v. Wilson, 141 N.Y. 188; English v. State, 34 Tex. Crim. 198; State v. Morgan, 22 Utah 172; State v. Shaw, 73 Vt. 154; Dryer v. State, 139 Ala. 117; People v. Coughlin, 13 Utah 58; Williams v. Com., 85 Va. 613; Com. v. Major, 198 Pa. 200; People v. Pool, 27 Cal. 573; Anderson v. State, 133...