State v. Wicker

• Decision Date: 04 June 1920
• Docket Number: No. 21908.,21908.
• Citation: 222 S.W. 1014
• Parties: STATE v. WICKER.
• Court: Missouri Supreme Court

222 S.W. 1014

STATE v. WICKER.

No. 21908.

Supreme Court of Missouri, Division No. 2.

June 4, 1920.

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

William Wicker was convicted of assault with intent to kill, and he appeals. Reversed and remanded.

W. N. Evans and M. E. Morrow, both of West Plains, for appellant.

Frank W. McAllister, Atty. Gen., and Henry B. Hunt, Asst. Atty. Gen., for the State.

WALKER, J.

Appellant was charged by information in the circuit court of Howell county with having feloniously, with intent to kill, assaulted one Earl Vaughan by shooting him with a pistol. Upon a trial the appellant was found guilty and his punishment assessed at two years' imprisonment in the penitentiary. From this judgment he appeals.

In the early part of the day of the shooting J. F. Vaughan, father of the prosecuting witness, and the appellant met in a public highway; no one else being present. Bad feeling existed between them, arising from a controversy in regard to the opening of a public road. Following an inquiry made by Vaughan as to the appellant's connection with this transaction the latter became angry and began to throw stones at the former; one of them striking him on one of his arms. Upon being struck he said to the appellant, "I believe you have broken my arm." To which appellant replied, "I don't care if I had broken your d—d bead." Vaughan asked the defendant the cause of his anger and he said Vaughan had made a statement, evidently regarded as derogatory, to a neighbor in regard to him. Vaughan denied having done so; appellant said there would be another day, and they separated. Appellant stopped at a house on the highway and Vaughan went on his way and met his son Earl and another in a buggy about an eighth of a mile from where he had met the appellant. Vaughan had a talk aside with his son and they started down the road towards where Vaughan had left the appellant. When opposite the house where the latter had stopped, they saw him sitting in the doorway. Earl Vaughan called to him, saying, "If you want to throw rocks, come out and I will have a round with you." Appellant declined, when Earl offered him $10 to go down on the road with him. Vaughan, the father, added that if Earl did not have the $10 he would furnish it. Appellant then approached, and when distant about six feet he pulled out a pistol and fired at Vaughan, who had jumped off his horse on the opposite side from where appellant was standing. This shot went wild. Appellant then turned and shot Earl, who, with his companion, was sitting in the buggy. One of the shots struck him in the back of the head, inflicting a flesh wound, and the other, more serious, inflicted a wound in one of his knees. Appellant thereupon turned and went back to the house from whence he had come. Earl was making no offensive demonstrations at the time he was shot. There was evidence that sonic time prior to the shooting he had threatened to attack appellant with a pitchfork, and that the father had also previously made vague threats against appellant. This rancor all arose from the road controversy. Appellant and a witness, his brother-in-law, who testified in his behalf, stated that after some abusive words had passed between appellant and the father and son the latter leaned over in the buggy, looked back over his shoulder, and appellant began to shoot. There was testimony that Vaughan, the father, was of a quarrelsome disposition, but that the son was a quiet and peaceable citizen. There was a contrariety of opinion in regard to the reputation of the appellant, there being testimony that he was truthful and law-abiding, but subsequently the same witness stated that he had been convicted of an assault.

The errors assigned upon which appellant relies for a reversal, which we note in the order of the presentation, are: The improper cross-examination of appellant; the giving of certain instructions; and the remarks of the prosecuting attorney.

I. The language of the statute (section 5242, R. S. 1909) which it is alleged was violated in the trial of this case is that—

"A defendant shall be liable to cross-examination, as to any matter referred to in his examination in chief, and may be contradicted or impeached as any other witness in the case."

The examination of the appellant to which objection is urged was as to whether the testimony of the prosecuting witness was not substantially the same as his testimony at the preliminary examination. Upon appellant answering that he did not recollect, he was further asked if he had not stated that the prosecuting witness had sworn the truth concerning the difficulty at that examination, to which he answered, "No, sir." The state then introduced other witnesses who contradicted the appellant concerning his statements as to the testimony of the prosecuting witness at the preliminary examination.

Generally, where a witness has made statements out of court in conflict with his testimony at the trial, such conflicting statements may be shown to discredit his testimony. State v. Burgess, 259 Mo. loc. cit. 395, 168 S. W. 740. This rule, however, is to be applied under the limitations of the statute to a defendant testifying in his own behalf in a criminal proceeding.

Under the provisions of a statute enacted in 1877 (Laws 1877, p. 356), a defendant whose competency to testify in his own behalf was authorized by that act was, upon taking the stand as a witness, subject to cross-examination as any other witness (State v. Hathorn, 166 Mo. loc. cit. 239, 65 S. W. 756); but in 1879 (section 1918, R. S. 1879) the law was so amended as to confine the cross-examination of a defendant witness to any matter referred to in his examination in chief, and so the law has remained without change to this time (section 5242, R. S. 1909). The purpose evident from the questions put to the defendant and the examination of other witnesses was to lay the foundation for his impeachment. We have had occasion in recent cases to review this statute. In State v. Sherman, 264 Mo. loc. cit. 381, 175 S. W. 73, while treating it with the utmost liberality consonant with its terms and purpose, we said in effect that the cross-examination of a defendant in a criminal case was not to be confined to a mere categorical review of the matters stated in the direct examination, and that to warrant a reversal on account of its improper exercise the statute must be given a reasonable construction and the cross-examination must be in regard to matters material to the cause concerning which the defendant did not refer in his examination in chief, or, if immaterial, must be upon subjects tending to prejudice the jury against the defendant. Further, in State v. Stewart, 274 Mo. loc. cit. 850, 204 S. W. 10, the rule of construction announced in the Sherman Case, supra, and which has prevailed ever since the enactment of the statute in 1879, was reaffirmed, with the added statement that the cross-examination of the defendant should, to avoid reversible error, be limited to matters which by reasonable construction could not be regarded as material to the cause or from their nature could not prove prejudicial to the defendant. To the same effect is State v. Bowman, 272 Mo. loc. cit. 501, 199 S. W. 161, and cases. The cross-examination of the appellant transcended the limits indicated as permissible in the cases cited, and constituted error.

The inquiry made of the appellant on cross-examination as to where he got the pistol was objected to as immaterial. This constituted no objection. State v. Castleman, 255 Mo. loc. cit. 208, 164 S. W. 492. To the subsequent question put to the appellant as to whether he was in the habit of carrying a pistol, the objection was interposed that the inquiry tended to disclose a separate offense for which appellant was not on trial. On...