The State v. Barnett

• Decision Date: 14 May 1907
• Parties: THE STATE v. BILLY BARNETT and JIM BAKER, Appellants
• Court: Missouri Supreme Court

102 S.W. 506

203 Mo. 640

THE STATE v. BILLY BARNETT and JIM BAKER, Appellants

Supreme Court of Missouri, Second Division

May 14, 1907

Appeal from Pemiscot Circuit Court. -- Hon. Henry C. Riley, Judge.

Reversed and remanded.

C. G Shepard and Faris & Oliver for appellants.

(1) The order of the court compelling defendants to furnish testimony against themselves was error. Boyd v. United States, 116 U.S. 616; Cons. of Mo., sec. 23, art. 2; Cons. of U.S amendment 5; 1 Greenleaf on Evidence, sec. 451; Cooper v State, 4 L. R. A. 766; Rice v. Rice, 9 L. R. A. 591; 1 Wharton on Evidence, secs. 533, 536, 751; Counselman v. Hitchcock, 142 U.S. 547; Wagram on Discovery, 61; Cooley, Cons. Limitations, 370; State v. Davis, 108 Mo. 666; State ex rel. v. Hardware Co., 109 Mo. 128; State v. Young, 119 Mo. 495. (2) It was error for the court to allow the State to put C. G. Shepard, Esq., of counsel for the defendants, upon the stand and question said Shepard as to the manner of taking the deposition of E. Parks. This deposition had been offered by the defendants, without objection by the State absolutely, and no motion to suppress the same was at any time filed. The State could not upon the trial discredit the same by evidence offered in the case in rebuttal. Parks being a valuable witness for the defendants, this action of the court was damaging to the defense, and was error. Delventhal v. Jones, 53 Mo. 460; State ex rel. v. Dunn, 60 Mo. 64; Holman v. Bachus, 73 Mo. 49; Bell v. Jamison, 102 Mo. 71; Deane Pump Co. v. Green, 31 Mo.App. 269. (3) It was error to permit the State to offer testimony as to the character of the defendants prior to and without their having put their character in issue. State v. Beckner, 194 Mo. 281; 1 Wigmore on Evidence, secs. 57, 58, 59; State v. Pollard, 174 Mo. 607; State v. Nelson, 101 Mo. 464; State v. Smith, 125 Mo. 7. (4) The court erred in failing to instruct on all of the law in the case, in this respect, among others, that though defendants were jointly indicted, and though there was no sufficient testimony to go to the jury as to the guilt of Baker, yet the court did not instruct the jury that they might find one or both of the defendants guilty or acquit one or both of them as they might find the facts to be as to guilt or innocence. Under the instructions as given by the court the jury evidently believed that they should find both or neither guilty. State v. Vaughan, 200 Mo. 1; State v. Kaiser, 124 Mo. 651; sec. 2627, R. S. 1899. (5) Considering the theory of the State and the instructions given by the State, defendants were entitled to have presented to the jury an instruction as to motive. This instruction the defendants offered, but the court refused. Under all the facts this was error. State v. Foley, 144 Mo. 600. (6) The information is repugnant and contradictory in its terms and it attempts to charge an impossible thing. 1 Wharton's Precedents (3 Ed), 114; State v. Bradford, 156 Mo. 91; Kelley's Crim. Law, 474.

Herbert S. Hadley, Attorney-General, and John Kennish and N. T. Gentry, Assistant Attorneys-General, for the State.

(1) The information, which was accompanied by the affidavit of the prosecuting attorney, is sufficient in form and substance. State v. Gleason, 172 Mo. 263. (2) Prejudicial error was not committed by the court in making the order that defendants' counsel produce for the inspection of the prosecuting attorney a copy of the testimony of a witness given upon a public trial before the probate judge of said county upon a habeas corpus proceeding brought by the defendants. State v. Lentz, 184 Mo. 223; State v. Black, 12 Mo.App. 531; State v. Reppetto, 66 Mo.App. 251. (3) Prejudicial error was not committed by the court in permitting the examination of C. G. Shepard, Esq., of counsel for defendants, as to the manner of taking the deposition of witness E. Parks. The only question asked the witness, Shepard, to which an objection was made and overruled and an answer given thereto, was the question as to whether or not the circuit court of that county was in session when the deposition of witness Parks was taken. All other objections were sustained by the court. As it was a matter of no materiality or importance whether or not the circuit court was in session when the deposition was taken, defendants could not have been prejudiced by the testimony of this witness. No citation of authorities is necessary on the proposition that this court will not reverse and remand a cause for the commission of non-prejudicial error. (4) The court did not err in permitting the State to prove the reputation of the defendants for morality. Each of the defendants testified in the cause. A defendant who testifies in his own behalf may be impeached in the same manner as any other witness, and it is settled law that the reputation of a witness for morality may be proven for the purpose of impeachment. This question has been fully considered by this court in the recent case of State v. Beckner, 194 Mo. 281, and decided against the contention of appellants. (5) It is assigned as error that the court failed to instruct the jury on all questions of law arising in the case, in this: That, though the defendants were jointly indicted and tried, the court did not instruct the jury that they might find one or both of the defendants guilty, or acquit one or both, as they might find the facts to be as to guilt or innocence. It is conceded that such an instruction was not given in this case, neither was such an instruction requested by the defendants. The case of State v. Vaughan, 200 Mo. 1, in which this question was fully considered by this court, is cited and relied upon by the defendants as authority that error was committed by the trial court. It will be observed that in the Vaughan case an instruction upon this question of law was asked by the defendants and refused by the court, and it was the action of the court in refusing to give such instruction that was held to have been error by this court. The defendants did not ask an instruction upon this question of law, and having failed to do so, they cannot now, for that reason, convict the trial court of error. State v. Weatherman, 202 Mo. 6; State v. Bond, 191 Mo. 555; State v. McCarver, 194 Mo. 717; State v. West, 202 Mo. 128. (6) The court did not err in refusing instruction C, asked by defendants. State v. Lynn, 169 Mo. 664.

OPINION

FOX, P. J.

This cause has reached this court by appeal on the part of the defendants from a judgment of the circuit court of Pemiscot county convicting them of murder in the second degree. Since reaching this court the death of the defendant Baker has been suggested; therefore, we will confine our attention to the complaints of the defendant Barnett.

On the 16th day of January, 1905, an information was filed, duly verified, by L. L. Collins, prosecuting attorney of Pemiscot county, charging the defendant with murder in the first degree. As the sufficiency of this information is challenged it is well to here reproduce it. Omitting formal parts, it is as follows:

"L. L. Collins, prosecuting attorney within and for the county of Pemiscot and State of Missouri, upon his official oath and upon his hereto appended oath informs the court that Billy Barnett and Jim Baker, late of the county of Pemiscot and State of Missouri, on the 13th day of January, 1905, at the county of Pemiscot and State of Missouri, did then and there in and upon the body of one Joe Morgan, then and there being, feloniously, willfully, deliberately, premeditatedly, on purpose and of their malice aforethought, did make an assault, and that the said Billy Barnett and Jim Baker with a certain pistol, then and there charged and loaded with gunpowder and leaden balls, which said pistol they, the said Billy Barnett and Jim Baker, in their hands then and there had and held, then and there feloniously, willfully, deliberately, premeditatedly, on purpose and of their malice aforethought, did discharge and shoot off, to, against and upon the said Joe Morgan. And that the said Billy Barnett and Jim Baker, with the leaden balls aforesaid, out of the pistol aforesaid, then and there by force of the gunpowder aforesaid by the said Billy Barnett and Jim Baker discharged and shot off as aforesaid, then and there feloniously, willfully, deliberately, premeditatedly, on purpose and of their malice aforethought, did strike, penetrate and wound him the said Joe Morgan, then and thereby feloniously, willfully, deliberately, premeditatedly, on purpose and of their malice aforethought, giving to him the said Joe Morgan in and upon the right side of the body of him, the said Joe Morgan, one mortal wound of the depth of ten inches and of the breadth of one-half of an inch, of which mortal wound he, the said Joe Morgan, then and there instantly died. And so L. L. Collins, prosecuting attorney as aforesaid, upon his official oath as aforesaid, doth say that the said Billy Barnett and Jim Baker, him, the said Joe Morgan, in the manner and by the means aforesaid, at the county and State aforesaid, feloniously, willfully, premeditatedly, deliberately, on purpose and of their malice aforethought, did kill and murder, against the peace and dignity of the State."

The prosecuting attorney, after the return of this indictment, elected to prosecute the defendants for murder in the second degree. The testimony introduced upon the trial is conflicting and it will be sufficient to indicate the facts that the testimony offered by the opposing sides tended to prove.

The testimony on the part of the State tended to establish that the difficulty which resulted in the death of the deceased Joe Morgan, occurred at Cottonwood Point, a small town in Pemiscot county, situated on the Mississippi river...