State v. Tippett

• Decision Date: 03 June 1927
• Docket Number: No. 27821.,27821.
• Parties: STATE v. TIPPETT.
• Court: Missouri Supreme Court

296 S.W. 132

STATE v. TIPPETT.

No. 27821.

Supreme Court of Missouri, Division No. 2.

June 3, 1927.

Appeal from Circuit Court, Dunklin County; E. P. Dorris, Judge.

Sherman Tippett was convicted of leaving the scene of an automobile accident, without stopping and giving his name and residence and reporting to an officer, after running his automobile against and killing a human being, and he appeals. Reversed and remanded.

Alexander & Coffer, of Cape Girardeau, Munger & Munger, of Bloomfield, and Smith & Zimmerman, of Kennett, for appellant.

North T. Gentry, Atty. Gen., and A. B. Levan, Asst. Atty. Gen., for the State.

DAVIS, C.

In a verified information filed in the circuit court of Stoddard county, defendant was charged with leaving the scene of the accident without stopping and giving his name and residence and without reporting to a police station or judicial officer, after running his automobile against and killing one Fitzpatrick. Upon application of defendant, the venue was changed from Stoddard to Dunklin county, where a trial was had before the court and jury, resulting in a verdict of four years in the penitentiary; defendant appealing from the judgment and sentence entered thereon.

Defendant refused to introduce evidence, standing and relying on the lack of strength in the state's case. The state's testimony develops and warrants the following facts: On February 11, 1925, defendant, driving a Ford coupé, with one Curtis Tucker beside him, while traveling at a fast speed along highway No. 25 in Stoddard county, about two miles north of Bernie, on the road from Bernie to Dexter, nine miles apart, ran into and killed one Fitzpatrick. When 50 or 60 feet away, Fitzpatrick suddenly moved from behind a truck, parked on the roadside, into the roadway, directly in the path of the on-coming car. Defendant tried to his utmost to avert striking the man, but, being unable to do so, sped on after the striking, failing to report the accident as required by the statute. The evidence tended to show that the accident was unavoidable. No one seems to have witnessed the occurrence, except defendant and Tucker; the latter testifying on behalf of the state. Such other facts as are pertinent will be reviewed in the discussion of the issues involved.

I. Defendant takes the position that the testimony of an impeached, contradicted, or discredited witness may not be rehabilitated by otherwise showing statements of the witness confirming his trial testimony. This calls for a compendium of the apposite evidence.

Both defendant and Tucker were arrested 10 or 11 days after the accident. According to the sheriff," on the occasion of the arrest, Tucker, being quizzed by the prosecuting attorney, denied any knowledge of the accident. The sheriff then stated that the prosecuting attorney said to Tucker that he would make it lighter on him if he told the truth about it. Tucker on the trial testified that defendant was operating the Ford couple at the time of the accident. To rehabilitate his testimony, on the ground that it was sustaining evidence, the trial court permitted C. A. Crane, a justice of the peace and police judge of Dexter, to testify that Tucker stated that he was with defendant who was driving the car that ran into and killed Fitzpatrick. The state made no attempt to show when Tucker's statement was made to Crane. Again, witness Pretzsch was permitted to relate that Tucker told her that defendant was driving the car that struck Fitzpatrick. The question was asked, "How long was that after Fitzpatrick had been run over that he told you?" and the witness replied, "On Friday night before you caught us on Sunday."

We have lately considered this question in State v. Creed, 299 Mo. 307, 252 S. W. 678. We there held that it is a general rule of law that the testimony of a contradicted, impeached, or discredited witness cannot be confirmed by proving that he made similar declarations out of court. However, we recognized an exception to the general rule, to the effect that the testimony of an accomplice in crime may be corroborated by showing that when first arrested he gave the same relation of facts which he had given on oath during the trial. Our statement of the exception, in the Creed Case, was too limited, for the exception is not confined to the statement made when first arrested, but it should be extended to hold that, when an attempt has been made to prove or show that a witness is testifying under improper motives or influences, then the party, whose witness he is, may prove that he made statements similar to his trial statements before he could have been affected by such influences, motives or inducements. People v. Katz, 209 N. Y. 311, loc. cit. 335 et seq., 103 N. E. 305, Ann. Cas. 1915A, 501. State v. Maggard, 250 Mo. 335, 157 S. W. 354.

Crane's relation of the conversation had with Tucker fails to develop the time of Tucker's statement to him. It may have taken place before the promise of lighter consequences by the prosecuting attorney to him, and before any motive obtained, in which event it was admissible; or, it may have occurred subsequent to the promise of lighter consequences, after inducement and motive became influential and after a possibly subconscious mind engendered the will to bolster up desire, in which event it was inadmissible. The burden was on the state to develop facts bringing it within the exception, and, having failed to shoulder the burden, the admission of the rehabilitating evidence constituted error.

We are unable to definitely determine from the recital whether the rehabilitating evidence shown in the testimony of Mrs. Pretzsch occurred before or after the promise of quasi immunity, although there were questions asked from which it might possibly be surmised that the conversation occurred before motive to fabricate became apparent. Be that as it may, no facts were developed in the testimony of witness Crane tending to show the time the conversation between Tucker and Crane took place. Even if we could say that the testimony of Mrs. Pretzsch was properly admitted, it did not obviate the vice and harm found in the testimony of Crane, for the surrounding facts and circumstances may have induced the jury to give credit to Crane's testimony alone. The crux of the ruling is summed up in the Creed Case, supra, grounded on the ruling in Legere v. State, 111 Tenn. 368, 77 S. W. 1059, 102 Am. St. Rep. 781, reading:

"In no case, so far as we have been able to discover, has corroborative testimony been admitted when it was to the interest of the witness to make a false statement."

To hold evidence of this nature, without the exception, admissible, would announce to one having committed or intending to commit a crime that he may intentionally bolster his trial testimony by relating to subsequently called witnesses a version that would corroborate it, thereby giving it undue force and effect. This would open the floodgates and sanction testimony importing verity, gained by self-serving design.

II. Defendant attacks the verdict because it does not respond to the charge, because it refers to a pleading to determine its finding, and because it fails to legally support the judgment of the court. The verdict is as follows:

"We, the jury, find the defendant guilty as charged in the first count of the information and we assess his punishment at four years' imprisonment in the penitentiary."

There is no merit in the attack. State v. Bishop, 231 Mo. 411, 133 S. W. 33.

III. Defendant complains of the court's instructions given. The assignment avers error in giving to the jury instructions 1 to 8, specifically mentioning each number. This assignment is too general, as we have held in a number of cases, to comply with section 4079, p. 198, Laws 1925. State v. Standifer (Mo. Sup.) 2S9 S. W. 856. This ruling also applies to the instructions asked by defendant and refused by the court.

IV. Defendant charges the facts refused to show beyond a reasonable doubt that he failed to report the accident to some police or judicial officer. All the police and judicial officials at Bernie, and a number at Dexter, the nearest towns, testified that defendant did not report the accident. Moreover, the facts and circumstances in evidence tend to show that he fled and later desired to conceal any connection therewith. We think, without doubt, the state made a case submissible to the jury.

V. Defendant charges the information failed to state facts sufficient to constitute an offense. We need not notice the information further in this regard than to state it follows the language of the statute. It conforms to the ruling in State v. Hudson (Mo. Sup.) 285 S. W. 733, without being subject to the objection there made and overruled.

VI. Some time after his arrest, Tucker, contemplated witness for the state, gave the prosecuting attorney a written statement relative to the accident. Defendant filed a motion to inspect the statement, which the court denied. The contemplated use was then disclaimed by the prosecuting attorney, nor was it used in the trial. The motion goes no further than requesting a rule on the prosecuting attorney to examine a written statement given him by Tucker relative to the accident and then in his possession. This was a document, and, provided it tended to impeach Tucker, was admissible on the part of defendant for that purpose. The general rule denying the inspection of documents in the hands of an adverse party has been greatly relaxed in modern cases. In civil cases an inspection of documents in the...