State v. Whipkey

• Decision Date: 13 December 1948
• Docket Number: 41056
• Parties: State of Missouri, Respondent, v. Roy Howard Whipkey, Appellant
• Court: Missouri Supreme Court

215 S.W.2d 492

358 Mo. 563

State of Missouri, Respondent, v. Roy Howard Whipkey, Appellant

No. 41056

Supreme Court of Missouri

December 13, 1948

Appeal from Circuit Court of City of St. Louis; Hon. Waldo C Mayfield, Judge.

Reversed and remanded.

Morris A. Shenker for appellant.

(1) The court erred in giving to the jury that part of Instruction 6 which stated that if they (the jury) believed that "any witness has knowingly and wilfully sworn falsely to any material fact", they "should reject all or any portion of such witness' testimony." This instruction was erroneous in that it told the jury that it was their duty to disregard such testimony, and thus was prejudicial to this defendant. State v. Cushing, 29 Mo. 215; State v. Miller, 234 S.W. 813; State v Mounts, 106 Mo. 226, 17 S.W. 226; State v Vansant, 80 Mo. 67; State v. Waller, 259 S.W. 445. (2) The court erred in refusing to declare a mistrial, when, although the court had previously instructed both attorneys that no reference was to be made to any alleged aliases attributed to this defendant, State's witness Otto Peters read into the record one such alleged alias, this being highly improper and prejudicial to the defendant. D'Allesandro v. United States, 90 F.2d 641; Petrilli v. United States, 129 F.2d 101; State v. Richards, 334 Mo. 485, 67 S.W.2d 58. (3) The court erred in admitting into evidence testimony by the State's witness Reva Crowe, of an alleged prior threat made by the defendant to the deceased, in that such threat, if it existed at all, was too remote to be material to the points at issue in this case, and that no basis was offered for its introduction, and that such testimony prejudiced the minds of the jurors against the defendant. State v. Bass, 157 S.W. 782; State v. Bowenkamp, 39 S.W.2d 753; State v. Dieckman, 11 Mo.App. 538; State v. Houston, 292 S.W. 728. (4) The court erred in refusing to strike from the indictment, in overruling defendant's objection and in admitting into evidence alleged evidence of prior convictions of the defendant, in that these prior convictions were not properly charged in the indictment in order to bring this case within the Habitual Criminal Act. The indictment was faulty in that it failed to allege any date of discharge of the defendant from the penitentiary. R.S. 1939, sec. 4854; State v. Austin, 113 Mo. 538, 21 S.W. 31; State v. Brinkley, 193 S.W.2d 49; State v. Brown, 115 Mo. 409, 22 S.W. 367; State v. Hamilton, 340 Mo. 768, 102 S.W.2d 642; State v. Krebs, 336 Mo. 516, 80 S.W.2d 196; State v. Sumpter, 335 Mo. 620, 73 S.W.2d 760. (5) The court erred in overruling defendant's motion to strike evidence introduced purportedly to show prior convictions of this defendant, in that the evidence thus introduced was in no way consistent, or tending to prove the pleading set forth in the indictment. Thus there was no proof to show such prior convictions, or that defendant was subject to the Habitual Criminal Act, and the allowance of such evidence in the record unduly biased and prejudiced the minds of the jurors against the defendant and deprived him of a fair and impartial trial. R.S. 1939, secs. 4450, 4453; State v. Bresse, 326 Mo. 885, 33 S.W.2d 919; State v. Donnell, 353 Mo. 878, 184 S.W.2d 1008; State v. Kimbrough, 350 Mo. 609, 166 S.W.2d 1077; State v. Murphy, 345 Mo. 358, 133 S.W.2d 398; State v. Taylor, 323 Mo. 15, 18 S.W.2d 474; State v. York, 142 S.W.2d 49. (6) The court erred in failing to instruct the jury on all the law applicable to the case and particularly on the right of self-defense and on killings due to accident, this in view of the testimony of the defendant in regard to an alleged altercation and in regard to his having been attacked. This testimony brought this question to issue, and therefore, since it is the duty of the trial judge to instruct the jury on all the law applicable to the case as brought forth by the evidence presented, it was incumbent on the trial court to instruct on these two vital matters. R.S. 1939, secs. 4070, 4379, 4380; State v. Aitkens, 352 Mo. 746, 179 S.W.2d 84; State v. Brinkley, 193 S.W.2d 49; State v. Crowley, 345 Mo. 1177, 139 S.W.2d 473; State v. Shiles, 188 S.W.2d 7. (7) The court erred in giving a substituted instruction to the jurors, after they had deliberated for a considerable time, and in failing to read this instruction to the jurors personally, thus depriving the counsel for the defendant of the right to argue this instruction to the jury, all to the prejudice of this defendant. 23 C.J.S., sec. 1376; R.S. 1939, sec. 4070; State v. Meagher, 49 Mo.App. 571. (8) The court erred in admitting into the record and in failing to strike, over the objection and exception of the defendant's counsel, much evidence which was hearsay testimony, which evidence unduly and unjustifiably biased and prejudiced the minds of the jurors against this defendant. State v. Huff, 161 Mo. 459, 61 S.W. 900; State v. Loeb, 190 S.W. 299; State v. Patton, 255 Mo. 245, 164 S.W. 223; State v. Powell, 217 S.W. 35; State v. Wright, 4 S.W.2d 456. (9) The court erred in admitting and refusing to strike testimony, over the objection and exception of defendant's counsel, which testimony was given by certain police officers testifying for the State, to the effect that the defendant had made no statement upon being questioned, this being an invasion and an unjustified comment on the defendant's constitutional right of "no comment." Constitution of 1945, Art. I, Sec. 19; State v. Bowdry, 346 Mo. 1090, 145 S.W.2d 127; State v. Conway, 154 Mo. 128; State v. Fitzgerald, 201 S.W. 86; State v. Hale, 156 Mo. 102, 568 S.W. 881; State v. Hogan, 252 S.W. 387; State v. Howard, 102 Mo. 142, 14 S.W. 937; State v. Mullins, 101 Mo. 514, 14 S.W. 625; State v. Swisher, 186 Mo. 1, 84 S.W. 911; State v. Young, 99 Mo. 666, 12 S.W. 879. (10) The court erred in making improper comments and interpretations on the evidence presented in the case, and thus in conveying to the jury the court's opinion as to matters in issue -- all to the prejudice of this defendant. 23 C.J.S., sec. 1150; R.S. 1939, sec. 4083; State v. Davis, 217 S.W. 87; State v. Drew, 213 S.W. 106; State v. Eudaly, 188 S.W. 110; State v. Hyde, 234 Mo. 200, 136 S.W. 316; State v. Taylor, 293 Mo. 210, 238 S.W. 489. (11) The court erred in sustaining certain objections to defendant's cross-examination of State witnesses, thereby depriving defendant of his right to cross-examine witnesses for the purpose of testing and impeaching their credibility, and showing their possible interest in the result of the present case. State v. Boyd, 178 Mo. 2, 76 S.W. 979; State v. Breeden, 58 Mo. 507; State v. Davis, 284 Mo. 695, 225 S.W. 707; State v. Decker, 616 Mo.App. 396, 143 S.W. 544; State v. Grant, 76 Mo. 236; State v. Hack, 118 Mo. 92, 23 S.W. 1089; State v. Hamilton, 55 Mo. 520; State v. Miller, 71 Mo. 590; State v. Pollard, 174 Mo. 607, 74 S.W. 969; State v. Scott, 332 Mo. 255, 58 S.W.2d 275; State v. Shields, 13 Mo. 236.

J. E. Taylor, Attorney General, and Samuel M. Watson, Assistant Attorney General, for respondent.

(1) It was not error for the court to give to the jury that part of Instruction 6 which reads as follows: "In this connection you are further instructed that if you believe that any witness has knowingly or wilfully sworn falsely to any material fact in evidence, you should reject all or any portion of such witness' testimony," for the reason that the use of the words "or any portion of such witness' testimony" modifies the meaning of the word "should" and is sufficient to convey to the minds of the jury that there might be portions of such witness' testimony proper for consideration by the jury. State v Mounce, 106 Mo. 226, 17 S.W. 226. (2) It was not error for the court to deny defendant's motion for a declaration of a mistrial shown in the quotation from the bill of exceptions set forth on page 23 of appellant's brief, because defendant's counsel, before moving for declaration of a mistrial, had elected another remedy for the protection of defendant from any alleged prejudice engendered by the reading of the alleged alias, said remedy being inconsistent with a mistrial remedy, and had moved the court for said remedy and had been accorded the remedy by the court by the court's sustaining of defendant's motion that the reference to the alias be stricken and that the jury be instructed to disregard it, said instruction to disregard so given at defendant's request being inconsistent with the declaration of mistrial. Petrilli v. United States, 129 F.2d 101. (3) The court did not err in admitting in evidence the testimony of Reva Crowe to the effect that in California in 1945 Roy Whipkey said to Bobby Jean Kerr "If you ever leave me or I ever catch you with another man I'll kill you" and the court was right in overruling both the motion to strike and the motion for mistrial. State v. Vass, 157 S.W. 782; State v. Houston, 292 S.W. 728. (4) It was not error for the court to overrule defendant's motion to strike evidence showing prior convictions of appellant, such evidence tending to sustain the allegations of the indictment. Sec. 3702, R.S. 1939; State v. Taylor, 323 Mo. 15, 18 S.W.2d 474. (5) The court did not fail to instruct the jury on all of the law applicable to the case, and in view of the fact that there is no evidence in the record to the effect that the deceased menaced the life or security of the appellant Whipkey who is alleged in the indictment to have murdered deceased, the issue of self-defense is not in this case and no instruction on the law of self-defense was necessary. Sec. 4070, R.S. 1939; State v. Crowley, 345 Mo. 1177, 139 S.W.2d 473. (6) It was not error for the court to withdraw Instruction 5 from the consideration of the jury and send to...