State v. Woods

• Decision Date: 03 July 1940
• Docket Number: 36795
• Parties: The State v. Sylvester Woods, Appelant
• Court: Missouri Supreme Court

142 S.W.2d 87

346 Mo. 538

The State v. Sylvester Woods, Appelant

No. 36795

Supreme Court of Missouri

July 3, 1940

Appeal from Circuit Court of City of St. Louis; Hon. Robert L Aronson, Judge.

Affirmed.

William J. Becker for appellant.

(1) A defendant held to bail must be tried within the fourth term after the return of the indictment. Secs. 3697, 3698, 3699 R. S. 1929; State ex rel. v. Wurdemann, 246 S.W 189, 295 Mo. 566. (2) Where a written statement has been given to the circuit attorney, which is material to the defense, for the purpose of impeaching the State's witness, it is error to overrule the defendant's motion to inspect such written statement. State v. Trippett, 296 S.W. 135. (3) Where two persons are jointly indicted for the same offense one may not testify for the State against the other while his case is undisposed of. State v. Chye Chiagk, 4 S.W. 704, 92 Mo. 395; State v. Reppley, 213 S.W. 477, 278 Mo. 333; State v. Hayes, 247 S.W. 165. (4) The testimony of the alleged accomplice Lane was inadmissible because it was given in consideration of a promise of the circuit attorney to recommend a punishment of one year in the city jail. State v. Miller, 13 S.W. 1051, 100 Mo. 606. (5) Cross-examination of the defendant on matters not part of his examination in chief are prohibited by law. R. S. 1929, sec. 3692; State v. Edelon, 231 S.W. 585; State v. Bulla, 1 S.W. 764, 89 Mo. 595; State v. Grant, 45 S.W. 1102, 144 Mo. 56; State v. Nicholson, 7 S.W.2d 375. (6) Prejudicial and improper cross-examination of a defendant, particularly when it goes outside of the scope of the direct examination is reversible error. State v. Pierson, 56 S.W.2d 124; State v. Aurentz, 263 S.W. 178; State v. Lasson, 292 Mo. 155, 238 S.W. 101; State v. Wellman, 253 Mo. 314, 161 S.W. 795; State v. Webb, 254 Mo. 435, 162 S.W. 622; State v. Bowman, 272 Mo. 494, 199 S.W. 164; State v. Goodwin, 271 Mo. 73, 195 S.W. 725; State v. Culpepper, 295 Mo. 249, 238 S.W. 801; State v. Sharp, 235 Mo. 287, 135 S.W. 488; State v. Barri, 199 S.W. 138; State v. Nicholson, 7 S.W.2d 375. (7) Neither the defendant, nor any other witness, can be cross-examined as to collateral facts not brought out on the examination of the defendant in chief, with view of impeaching him by contradicting him. McFadden v. Catron, 25 S.W. 516, 120 Mo. 252. (8) A defendant should not be cross-examined on matters not testified to in chief, under the pretense that such cross-examination is for the purposes of impeachment, when in truth its only purpose was to create an excuse to permit the State's witness (police officers) to take the stand in rebuttal and thereupon change the original testimony of the State's witnesses and impeach themselves. R. S. 1929, sec. 3692; State v. Tripett, 296 S.W. 132. (9) Questions asked on cross-examination should be excluded, when they assume as true, a damaging state of facts, where there was no reason to believe that there was a foundation of truth for what was so assumed. Bonslett v. New York Life Ins. Co., 190 S.W. 874; 70 C. J., p. 1156, sec. 1341. (10) Where particular evidence is not admissible in chief, the State cannot cross-examine the defendant in a criminal case as to transactions not alluded to on his direct examination, for the purpose of laying the foundation for impeachment by rebuttal testimony, nor is the State permitted, by such cross-examination to lay the foundation for attempted impeachment, and then on rebuttal prove facts which it was compelled to establish by its evidence in chief. 70 C. J. 799, sec. 1003; State v. Yorham, 221 N.W. 493, 206 Iowa 833. (11) Cross-examination of the defendant for the purpose of laying a foundation for his impeachment cannot extend to former inconsistent statements which he did not in fact make, or to statements which are not proper to be shown for impeachment. 70 C. J. 1078, sec. 1274; State v. Mathis, 18 S.W.2d 8, 323 Mo. 37; Case v. St. L. & S. F. Ry. Co., 30 S.W.2d 1069, certiorari denied, 51 S.W. 107, 282 U.S. 893, 75 L.Ed. 787. (12) Prejudicial and improper remarks to the jury knowingly made by the circuit attorney constitute reversible error. State v. Pierson, 56 S.W.2d 124; State v. Webb, 254 Mo. 414, 162 S.W. 622; State v. Spivey, 191 Mo. 87, 90 S.W. 81; State v. Mathis, 323 Mo. 57, 18 S.W.2d 8; State v. Ferguson, 162 Mo. 668, 63 S.W. 101; State v. Goodwin, 217 S.W. 264. (13) It is error to permit the circuit attorney to base his arguments on facts not in evidence and thus make a prejudicial appeal to the jury. State v. Mosier, 102 S.W.2d 620; State v. Woolsey, 33 S.W.2d 955; State v. Hayes, 10 S.W.2d 883, 323 Mo. 578; State v. Crouch, 98 S.W.2d 550, 339 Mo. 847; State v. Taylor, 8 S.W.2d 29; State v. James, 115 S.W. 994, 216 Mo. 394; State v. Guerringer, 178 S.W. 65, 265 Mo. 408; State v. Upton, 109 S.W. 821, 130 Mo.App. 316. (14) The converse of positive instructions given for the State should be given when requested by the defendant. State v. Hill, 44 S.W.2d 103, 329 Mo. 223; State v. Gill, 77 S.W.2d 110, 336 Mo. 69; State v. Markel, 77 S.W.2d 112, 336 Mo. 129; State v. Fraley, 116 S.W.2d 17, 342 Mo. 442; State v. Logan, 126 S.W.2d 256.

Roy McKittrick, Attorney General, and W.J. Burke, Assistant Attorney General, for respondent.

(1) The court did not err in overruling the motion of this defendant Sylvester Woods, and defendants John W. Hurshman and James Kuhlmeyer for a rule that the State should elect previous to the date of the trial upon which defendant the State should go to trial. Sec. 3661, R. S. 1929. (2) The court did not err in overruling defendants' motion to dismiss and plea in abatement of this defendant, Sylvester Woods, and the other defendant jointly indicted, which plea in abatement alleged that five terms of court had passed without placing either of the defendants on trial. Sec. 3697, R. S. 1929; State v. Nelson, 279 S.W. 401; State v. Short, 87 S.W.2d 1031, 337 Mo. 1061; State v. McPhearson, 92 S.W.2d 131; State v. Duncan, 116 Mo. 308, 22 S.W. 699. (3) The court did not err in overruling the motion for leave to inspect the grand jury minutes concerning the indictment of each of the three defendants. State v. McDonald, 119 S.W.2d 286, 342 Mo. 998; State v. Thomas, 99 Mo. 235; State v. Pierson, 123 S.W.2d 152. (4) The court did not err in overruling the motion for leave to inspect the written statements of defendant, Charles Lane, who had plead guilty to the same crime as a co-defendant, but had not been sentenced. State v. Richetti, 119 S.W.2d 344, 342 Mo. 1015; State v. McDonald, 119 S.W.2d 288, 342 Mo. 998. (5) The court did not err in overruling the objection of defendant to the introduction of any evidence for the reason that the opening statement was too brief and did not contain facts sufficient to constitute or charge a crime against the defendant. Sec. 3681, R. S. 1929; State v. Loeb, 190 S.W. 303; State v. Baker, 278 S.W. 989. (6) There was sufficient, substantial, material and competent evidence to support the verdict. State v. Wright, 95 S.W.2d 1157. (7) Assignment of error number seven in appellant's motion for a new trial was insufficient and not specifically set out for review. State v. Dollarhide, 87 S.W.2d 156, 337 Mo. 962; State v. Copeland, 71 S.W.2d 750, 335 Mo. 140; State v. McKeever, 101 S.W.2d 22, 339 Mo. 1066. (8) The court did not err in refusing to give the instruction in relation to the testimony of Charles Lane as set out in defendant's assignment of error number seven. State v. Bartley, 84 S.W.2d 637, 337 Mo. 229; State v. Messino, 30 S.W.2d 750, 325 Mo. 743. (9) The trial court is only required to give an alibi instruction when requested, and in neglecting to give an alibi instruction it is not error as set out in defendant's assignment of error number nine. State v. Wilson, 12 S.W.2d 445, 321 Mo. 564; State v. Trice, 92 S.W.2d 135, 338 Mo. 744; State v. Pope, 92 S.W.2d 911, 338 Mo. 917. (10) The court did not err in sustaining the objection of the State to the testimony of Daniel Chrismer as to statement made by another party, John Hall, at the police show up, as to the identity of the defendant, Sylvester Woods. State v. Wright, 4 S.W.2d 456, 319 Mo. 46; State v. Kanupka, 247 Mo. 714, 153 S.W. 1056. (11) The court did not err in allowing the codefendant, Charles Lane to testify after he had plead guilty and had not been sentenced. State v. Hayes (Mo.), 247 S.W. 165; State v. Richardson (Mo.), 267 S.W. 841; State v. Reppley, 213 S.W. 477; State v. Jackson, 17 S.W. 301, 106 Mo. 178; State v. Roderman, 248 S.W. 964, 297 Mo. 143. (12) The court did not err in permitting the circuit attorney to ask the witness Charles Lane concerning his actions immediately after he had committed the assault. (13) The court did not err in refusing to permit the defendant to cross-examine the witness Charles Lane about specific instances of other fights because it was not the proper procedure to attack the credibility of the witness. State v. Perkins, 116 S.W.2d 80, 342 Mo. 560; State v. Crow, 84 S.W.2d 926, 337 Mo. 397; State v. Menz, 106 S.W.2d 440, 341 Mo. 74. (14) The court did not err in refusing to permit the defense to cross-examine Charles Lane on the question as to whether or not he was under parole on the date of the alleged crime, October 21, 1937. Myles v. St. L. Pub. Serv. Co., 52 S.W.2d 595. (15) The assignment of error number twenty, in the defendant's motion for new trial, is covered by the argument of the respondent as set out under defendant's assignment of error number eighteen. (16) The court did not err in refusing to permit the defendant to cross-examine the witness Charles Lane as to his whereabouts during the five days in which he had escaped from the authorities of the city of St. Louis, nor did it err in overruling the motion of the defendant to...