State v. Tiedt
| Decision Date | 10 April 1950 |
| Docket Number | No. 41631,41631 |
| Citation | 229 S.W.2d 582,360 Mo. 594 |
| Parties | STATE v. TIEDT. |
| Court | Missouri Supreme Court |
Homer C. King, Maurice Pope, Stanley I. Dale, John C. Landis, III, St. Joseph, for appellant.
J. E. Taylor, Attorney General, Frank W. Hayes, Assistant Attorney General, for respondent.
Defendant has appealed from a conviction and sentence for murder in the first degree. Punishment was assessed at death. This is defendant's second appeal. On the first appeal this court reversed a conviction and sentence imposing a like punishment and remanded the cause for a new trial on account of inflammatory and prejudicial arguments of the assistant prosecuting attorney. State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524.
The information charged defendant with the first degree murder of Fred Matchett in Buchanan County, Missouri, on November 25, 1945, by shooting him with a shotgun. The State's evidence showed that when defendant killed Fred Matchett, he also killed Fred Matchett's brother and sister-in-law. The sufficiency of the State's evidence to make out a submissible case of murder in the first degree is not questioned. In view of the assignments of error presented on his appeal, a detailed statement of the facts is not required. It is sufficient to say that the essential facts of the State's case were substantially as stated in the prior opinion of this court.
Defendant did not testify at the second trial, but offered in evidence a written and signed statement, which he gave to the police and prosecuting officer on the day of his arrest. The statement was identified and, without objection, the circumstances of its execution were fully shown by the State's evidence. The State did not offer the exhibit in evidence and, when offered by defendant, it was received in evidence without objection. This statement, mentioned in the prior opinion, was in question and answer form and purports to cover in some detail the relationship of defendant and the Delbert Matchett family and the detailed circumstances leading up to, as well as those attending, the death of the three Matchetts. Other facts necessary to a disposition of the errors assigned will be stated in the course of the opinion.
Error is assigned on the court's action in overruling defendant's challenge for cause as to juror Hugh H. Madden and error is further assigned on the court's interrogation of this juror by leading questions. The juror was examined at length by counsel for the State and for defendant. He indicated that he had formed an opinion, based solely on 'general newspaper reports'; that it was not a fixed opinion, but would influence his judgment and take evidence to remove it; and that it would be impossible for him to be fair and impartial in the case. He also made statements in conflict with this testimony and said he thought he could go into the trial with an open mind and not be 'guided by anything but the evidence and the instructions.' Thereafter, the court examined the juror at some length and the juror's answers to all questions by the court tended to show a fully qualified juror. The court did not err in asking leading questions or in overruling the challenge for cause. No objection was interposed at the time to the court's method of conducting the examination. The trial court saw and heard the juror testify during the prior examination by the respective attorneys. To finally determine the matter the court made his own examination. Considering the full record of the voir dire examination of this juror, which examination covers some five and one-half pages of the transcript, no error or abuse of the Court's discretion appears. Sec. 4060, R.S.1939, Mo.R.S.A.; State v. Burns, 351 Mo. 163, 172 S.W.2d 259, 267; State v. Wampler, Mo.Sup., 58 SW.2d 266, 268.
Appellant contends the court erred in admitting in evidence the testimony of State's witness Stropes (when recalled) 'relative to the matter of time of calls.' Appellant says that 'it appeared from the witness's testimony that he was merely reading from a record made by someone else, which he did not know to be correct and which did not in any way refresh his memory so as to give him the right to testify of his own knowledge.'
The questioned evidence appears in connection with an effort to properly identify an exhibit offered by the State. The exhibit was objected to by defendant and was subsequently withdrawn. The record fails to show any objection at any time to any of the evidence now complained of and no such error is referred to in the motion for a new trial. Appellant may not now complain. State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878, 888; State v. Preston, Mo.Sup., 184 S.W.2d 1015, 1017; Sec. 4125, R.S. 1939, Mo.R.S.A. The record does show that, after the questioned evidence was before the jury without objection, the defendant moved 'to strike all of the testimony of this witness' on the ground that he attempted to refresh his memory from a document not properly identified and not offered in evidence. The motion was overruled and this ruling is complained of in the motion for a new trial, but appellant does not now complain of error in ruling the motion to strike.
The witness first testified that he was in a squad car at the Union Station when he received a police broadcast 'about 12:45 a. m.,' November 25, 1945. He proceeded at once to the Matchett residence and arrived 'within a half second' behind another car from the police station that stopped in front of defendant's residence. On cross-examination he subsequently fixed the time of receipt of the call as 12:29 a. m. and he was requested to produce a radio log book from the police station. On being recalled to the witness stand he refreshed his recollection from the radio log book, which he said was a government record required to be kept by the police department for the Federal Communications Commission, but which was written up by operator Morgan Jones. He said that he had been confused by a 12:29 a. m. call, which had nothing to do with this case, and that the call to the Matchett residence was received by him at 12:44 a. m. The exact time of the radio broadcast or his receipt of the call was immaterial to any issue in the case. No prejudicial error appears from the court's action in overruling the motion to strike, or otherwise in connection with this evidence.
Appellant contends that the court erred in excluding the testimony of 'defendant's witness Gritz to the effect that, after having been threatened by his neighbor Matchett, the defendant appeared excited, upset and unnerved.' Appellant says the evidence was material and of 'the type of evidence that must be shown by a person's appearance, in that the little things observed cannot all be detailed, but rather, it must come out as a general impression of the witness as to the appearance of the one he is observing.' State v. Stewart, 274 Mo. 649, 204 S.W. 10, 13; State v. Ferguson, 278 Mo. 119, 212 S.W. 339, 343; State v. Wilkins, Mo.Sup., 100 S.W.2d 889, 893.
Defendant offered to show by witness Gritz that Appellant insists that the excluded evidence showed defendant's fear of violence to himself, that it could be considered in fixing punishment and that 'the background of previous conversations between defendant and his neighbor were important to show the state of mind of the defendant.'
Before this offer was made Gritz had testified that, when he saw the defendant on the afternoon and evening of November 24, 1945, defendant seemed natural, didn't appear to have anything unusual on his mind and had said nothing about the Matchetts. Gritz also testified that he knew nothing of any trouble between defendant and the Matchetts except what defendant had told him. The tendered evidence was properly refused. There was no evidence in the record tending to show defendant had ever had any prior difficulty with the Matchetts; or that defendant's alleged condition was in any manner due to defendant's relationship with them. The offer would have shown the relationship only by hearsay. Any such statements by defendant were purely self-serving and inadmissible. State v. Wright, 352 Mo. 66, 175 S.W.2d 866, 867, 871; State v. Perkins, Mo.Sup., 92 S.W.2d 634, 638. Nor was the evidence admissible on any theory of res gestae. State v. Stallings, 334 Mo. 1, 64 S.W.2d 643, 645.
Appellant contends that the court erred in refusing defendant's Instruction F. Appellant says that the instruction 'properly declared the law relative to the right to receive the benefit of the doubt as to the severity of punishment'; that, if defendant was guilty of murder in the first degree, 'he was entitled to the benefit of a reasonable doubt * * * as to whether he should be given the death penalty or given a life sentence'; and that the 'same benefit of reasonable doubt should apply in fixing punishment as well as in determining whether any punishment should be assessed.' State v. Anderson, 86 Mo. 309 and 2 Raymond, Missouri Instructions, 663 Sec. 6241 are cited, and see State v. May, 172 Mo. 630, 649, 72 S.W. 918. The authorities do not aid appellant.
The instruction was properly refused. If, under the evidence and instructions of the court, the jury found defendant guilty of murder in the first degree, it was for the jury to fix the punishment. The matter of punishment, within the limits fixed by the statute, was solely within the discretion of the jury under all of the facts and circumstances in evidence....
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