State v. Taylor

• Citation: 8 S.W.2d 29
• Decision Date: 21 June 1928
• Docket Number: No. 28742.,28742.
• Parties: THE STATE v. WILKINS TAYLOR, Appellant.
• Court: United States State Supreme Court of Missouri

8 S.W.2d 29

THE STATE v. WILKINS TAYLOR, Appellant.

No. 28742.

Supreme Court of Missouri, Division Two.

June 21, 1928.

Appeal from Jasper Circuit Court. — Hon. Grant Emerson, Judge.

REVERSED AND REMANDED.

Grayston & Grayston, Howard Gray, Norman A. Cox and Hugh Dabbs for appellant.

(1) The evidence is wholly insufficient to support the verdict. Furthermore, even if there were any substantial evidence to support the verdict, the record discloses such passion and prejudice against defendant in the trial as to amount to a denial to him of a fair and impartial trial. For these reasons, this case must be reversed. State v. Remley, 237 S.W. 491, citing and approving: Browne v. State (Wis.), 7 A. & E. Anno. Cas. 260, 22 R.C.L. secs. 10, 11, 12, pp. 1180-1182 and Devory v. State (Wis.), 99 N.W. 455; State v. Prim, 98 Mo. 372; State v. Harrison, 263 Mo. 655; State v. Tevis, 234 Mo. 284; State v. Goodale, 210 Mo. 290; State v. Brown, 209 Mo. 413; State v. Davis (Mo.), 190 S.W. 297; State v. Donnington, 246 Mo. 355; State v. Wellman, 253 Mo. 318; State v. Lewkovitz, 265 Mo. 613; State v. Harmon, 296 S.W. 396; State v. Tunnell, 296 S.W. 427; State v. Guerringer, 265 S.W. 419; State v. Cunningham, 100 Mo. 391; State v. Bergdorf, 53 Mo. 65; State v. Connor, 252 S.W. 722; State v. Stanfield, 1 S.W. (2d) 836; State v. Jones, 306 Mo. 448; State v. Prendible, 165 Mo. 339; State v. Katz, 266 Mo. 504; State v. Bobbst, 131 Mo. 338; State v. Baldwin, 297 S.W. 18. (2) The court erred in overruling defendant's application for continuance for the reasons stated in said application and in refusing to allow the defendant to prove the facts set forth in said application as grounds therefor. Sec. 3996, R.S. 1919; 16 C.J. 484, sec. 876; State v. Wade, 307 Mo. 290; State v. Guerringer, 265 Mo. 419; State v. Harmon, 296 S.W. 400; State v. Davis, 197 S.W. 297; State v. Wellman, 253 Mo. 316. (3) The argument of the prosecuting attorney to the jury, and of the assistant prosecuting attorney was abusive, improper, illegal and prejudicial and misstated and misconstrued the evidence, and the rulings of the court thereon adverse to defendant on defendant's objections, and his failure and refusal to rule thereon when requested to do so by defense objections, constitute reversible error. State v. Babbst, 131 Mo. 338; State v. Guerringer, 265 Mo. 419; State v. Schneider, 259 Mo. 330; State v. Prendible, 165 Mo. 329; State v. Fisher, 124 Mo. 460; State v. Burnes. 237 S.W. 505; State v. Wellman, 253 Mo. 316; State v. Harmon, 296 S.W. 400; State v. Clancy, 225 Mo. 654; State v. Thompson, 238 S.W. 115; State v. Dixon, 253 S.W. 746; State v. Connor. 252 S.W. 722; State v. Baldwin, 297 S.W. 18; State v. Kyle, 259 Mo. 412. (4) The court erred in permitting members of a hostile audience to remain in the court room and deride defendant's attorney in the closing argument made by the prosecuting attorney because of objections made to said argument, and in permitting the audience to cheer the court and the prosecuting attorney when the court made rulings unfavorable to defendant and when the prosecuting attorney in his argument made inflammatory, abusive and denunciatory statements relating to defendant. In this connection see points and authorities under Points 1 and 2. Also State v. Guerringer. 265 Mo. 420; State v. Wellman, 253 Mo. 319; State v. Davis, 190 S.W. 298; State v. Harmon, 296 S.W. 396; State v. Connor, 252 S.W. 722. (5) The court erred in permitting the prosecuting attorney to cross-examine in a hostile, irritating and exasperating manner the witnesses who testified in behalf of defendant. State v. Stanfield, 1 S.W. (2d) 836; State v. Jones, 306 Mo. 448; State v. Prendible, 165 Mo. 329; State v. Baldwin, 297 S.W. 19; State v. Horton, 247 Mo. 666. (6) The court erred in admitting, over the objection and exception of the defendant, the testimony of the prosecuting witness that she reported this matter to her sister, Ruth Williams; the testimony of the prosecuting witness that she later reported the matter to the witness Polly Waite, and in permitting the prosecuting attorney to advise the jury in his opening statement that she reported the matter still later to her employer, Mrs. Jackson; and the court erred in permitting the sister Ruth Williams and the said Polly Waite to testify that the prosecuting witness reported this matter to them respectively. The evidence was inadmissible as corroboration of the prosecuting witness. Lowe v. State, 99 Ga. 792; State v. Patrick, 107 Mo. 163; State v. Jones, 61 Mo. 232; Huey v. State (Ga.), 66 S.E. 1025; 10 Ency. Evidence, 587; Canida v. State, 130 Ga. 15; Thomas v. State, 144 Ga. 302; 3 Greenleaf on Evidence, sec. 213; State v. Lawhorn, 250 Mo. 293; State v. Burgess, 259 Mo. 383. (7) The court erred in giving instruction numbered 8. The said instruction was erroneous, misleading, insufficient, and ineffectual to advise the jury as to the probative value of such evidence as there was in the case as to reports of the matter made by the prosecuting witness; and erred in failing to correctly instruct the jury on that subject. Hucy v. State, supra; State v. Patrick, supra; 22 R.C.L. 1188, secs. 12, 19; Brown v. State, 127 Wis. 193; State v. Cowing, 99 Minn. 123. (8) The court erred in trying defendant jointly with Gentry after the court had granted a severance, and in instructing the jury, in Instruction 4, in that said instruction, notwithstanding the severance granted, authorized the jury to consider acts and conduct of Gentry in the trial of the case against defendant Taylor. Sec. 4004, R.S. 1919.

Frank R. Birkhead, Special Prosecutor, for respondent.

(1) Defendant was accorded a fair and impartial trial and there was substantial and sufficient evidence to support the verdict. A thorough examination of all the evidence and the conduct of the trial fails to disclose passion or prejudice toward the defendant, or that the verdict of the jury was based on any consideration other than the evidence in the case. State v. Williams, 191 Mo. 205; State v. Dilts, 191 Mo. 665; State v. Alexander, 184 Mo. 266; State v. Kowertz, 297 S.W. 358; State v. Schroetter, 297 S.W. 368; State v. Drew, 300 S.W. 473; State v. Pinkard, 300 S.W. 748; State v. Cook, 3 S.W. (2d) 365; State v. Urspruch, 191 Mo. 43; State v. Sechrist, 226 Mo. 574; State v. Katz, 266 Mo. 493; State v. Manuel, 263 Mo. 670. (2) The trial court properly overruled defendant's application for continuance. The testimony of all the witnesses named in the application with the exception of witnesses Rice and Rakestraw was wholly incompetent. Testimony of specific acts of delinquency was not admissible. State v. Guye, 252 S.W. 960. The testimony of witnesses Rice and Rakestraw given at the previous trial was available and the defendant used the testimony of Rice, but did not avail himself of the opportunity of using the testimony of Rakestraw. There was no showing that the Anti-Horse Thief Association had done anything to prevent defendant from having a fair and impartial trial, and no showing that anything was done or said to bias or prejudice the jury. A period of more than six months had elapsed since the date of the alleged offense. The matter of granting continuance is in the sound discretion of the trial court and the Supreme Court will not interfere unless it appears that this discretion has been unwisely exercised. State v. Van Valkenburgh, 285 S.W. 978; State v. Wade, 307 Mo. 291; State v. Horn, 209 Mo. 452; State v. Wilson, 242 S.W. 886; State v. Williams, 263 S.W. 198; State v. Lloyd, 263 S.W. 212; State v. Taylor, 266 S.W. 1017. (3) The argument of the prosecuting attorney was not such as to constitute reversible error. Where the remarks were improper the court took the necessary steps to cure the error. In this connection the court will take into consideration the continual interruption accompanied by argument of opposing counsel. Remarks of prosecutor were based upon evidence in the case. State v. Rasco, 239 Mo. 580; State v. Jones, 249 Mo. 80; State v. Baker, 262 Mo. 700; State v. Gartrell, 171 Mo. 489; State v. Sublett, 191 Mo. 174; State v. Larkin & Harris, 250 Mo. 218; State v. Harmon, 296 S.W. 400; Schroeder v. Wells, 298 S.W. 813; State v. Jackson, 283 Mo. 18; State v. Sherman, 264 Mo. 374; State v. Gordon, 253 Mo. 517; State v. Schneiders, 259 Mo. 330. (4) The record shows that the applause by the audience was brought on by action of defendant's counsel. The court promptly rebuked this slight outbreak, and since defendant did not object or except to the manner or sufficiency of the rebuke this point was waived. State v. Gartrell, 171 Mo. 489; State v. Dusenberry, 112 Mo. 293; State v. Murphy, 292 Mo. 275; State v. Rasco, 239 Mo. 535. (5) The record does not disclose that the prosecuting attorney was abusive in his cross-examination of defense witnesses or that the same was conducted in any manner other than was proper. (6) The evidence shows that complaint was made promptly, considering circumstances of the case. The fact of making prompt complaint as an element of corroboration is admissible always. State v. Lawhorn, 250 Mo. 306; State v. Bateman, 198 Mo. 221; State v. Burgess, 259 Mo. 394. The time within which complaint was made is only a circumstance for consideration of jury. State v. Bigley, 247 S.W. 171; State v. Goodale, 210 Mo. 275; State v. Witten, 100 Mo. 525. (7) Instruction 8 correctly declared the law and was proper. State v. Bigley, 247 S.W. 171. (8) Defendant was not tried jointly with Gentry after a severance had been granted, and the record of the case does not support such a contention. There was no error in giving Instruction 4. This instruction properly declared the law. The testimony on the part of the State showed that the offense was committed by both defendants and in the presence and with the aid, encouragement and assistance of each other. State v. Corrigan, 262 Mo. 195; State v. Anderson, 252 Mo. 83; State...