State v. Turner, 55187

• Decision Date: 08 February 1971
• Docket Number: No. 2,No. 55187,55187,2
• Citation: 462 S.W.2d 723
• Parties: STATE of Missouri, Respondent, v. Bill G. TURNER, Appellant
• Court: Missouri Supreme Court

Page 723

462 S.W.2d 723

STATE of Missouri, Respondent, v. Bill G. TURNER, Appellant.

No. 55187.

Supreme Court of Missouri, Division No. 2.

Feb. 8, 1971.

John C. Danforth, Atty. Gen., Thomas H. Stahl, Asst. Atty. Gen., Jefferson City, for respondent.

Patrick Horner, Auxvasse, for appellant.

PRITCHARD, Commissioner.

Appellant was convicted of the crime of uttering a forged or altered instrument and as a second offender was sentenced by the court to seven years imprisonment.

For the week of December 18, 1966, a payroll check was issued to appellant for his net pay, after deductions, of $31.76 by the Kaiser Aluminum and Chemical Corporation. In the afternoon of December 23, 1966, appellant presented a check for $131.76 to Mr. Carl Barr, manager of the Gamble Store in Mexico, Missouri, for payment of a $25.70 gun. Mr. Barr paid the appellant the balance in cash. The $131.76 check was examined by Sergeant James G. Runkle of the State Highway Patrol who found a difference in shading of the numeral '1' in the amount of the check. The $100 difference in the check issued by Kaiser was found by it upon reconciliation of its bank account. Appellant's evidence was that he presented his $31.76 check to the Gamble store in payment of a Christmas present gun of around $24.00, and shortly thereafter his ex-wife loaned him $12.00 so he could purchase a camera from Ward's.

The first complaint is that the court erred in not declaring a mistrial on its own motion after answers to questions were made by venireman Kilgore 'which would indicate that he spoke from a position of knowledge, i.e., his conversations with Mrs. Barr, would have had such a prejudicial effect upon the jury panel as to deprive defendant of a fair trial, * * *.' The matter arose thus:

'MR. OSBORNE: Mr. Kilgore, have you discussed this case with anybody?

MR. KILGORE: Yes; I talked with Mrs. Barr. She works with me.

MR. OSBORNE: When was that, Mr. Kilgore?

MR. KILGORE: Some days ago.

MR. OSBORNE: Mr. Kilgore, could you set that aside and base your decision in this case solely on the evidence as it comes from the witness stand and the court's instructions, if you are chosen as a juror?

MR. KILGORE: I guess so.

MR. HORNER: Mr. Kilgore, I believe you testified a while ago that Mrs. Barr works with you, is that correct?

MR. KILGORE: Uh-huh.

MR. HORNER: Mr. Kilgore, do you feel that your acquaintance with her would affect your decision if you were chosen to act as a juror in this case?

MR. KILGORE: Well, I don't know.

MR. HORNER: Thank you for your frankess, Mr. Kilgore. Your Honor, I challenge Mr. Kilgore for cause.

THE COURT: Mr. Kilgore, does the Court understand that you would give greater weight to the testimony of a person employed by you than to other witnesses?

MR. KILGORE: Well, I don't think I would.

THE COURT: Do you believe that if you heard the evidence in this case you would give greater weight to her testimony than any other witness?

MR. KILGORE: No, I don't think I would.

THE COURT: The Court will deny your motion at this time, Mr. Hornor.'

The transcript does not indicate that juror Kilgore was discharged for cause, but appellant in his brief states that he later developed further the prejudice of the juror and the court sustained his challenge of Mr. Kilgore for cause. Appellant suggests that not all of the voir dire examination is in the transcript, that what therein appears is all that the reporter had, and that portions were not in it because the reporter was unable to hear what was said. Counsel approved the transcript, and nothing appears by way of any attempt to amend or supplement it. All that may be considered is the transcript filed in this court.

As indicated, appellant did not move to discharge the entire jury panel on the ground that juror Kilgore's remarks were prejudicial in the sense that he possessed superior knowledge of the alleged offense which prejudice pervaded the entire panel. And as noted, as conceded in appellant's brief, juror Kilgore was subsequently excused by the court. The question then becomes whether the answers and remarks of juror Kilgore were in fact so prejudicial as to infect the entire panel. The question is answered in State v. Taylor, Mo., 324 S.W.2d 643, 648(9--11): 'Normally, the disqualification of an individual juror for the expression of an opinion, or for making remarks indicating bias, is not a sufficient ground for a challenge of the entire panel. State v. Weidlich, Mo., 269 S.W.2d 69, 71(4).' And, as observed in the Taylor case, the evaluation of the effect upon others of an outburst of a venireman, or the handling, is a matter entrusted largely to the trial court's discretion. No abuse of that discretion here appears, and Point I is overruled as is Point II saying that the trial court erred in not...