The State v. Burns

• Decision Date: 26 February 1926
• Parties: THE STATE v. ASA Q. BURNS, Appellant
• Court: Missouri Supreme Court

280 S.W. 1026

312 Mo. 673

THE STATE v. ASA Q. BURNS, Appellant

Supreme Court of Missouri

February 26, 1926

Appeal from Audrain Circuit Court; Hon. Charles T. Hays Special Judge.

Reversed and remanded.

E A. Shannon and Curlee & Hay for appellant.

(1) The evidence offered by defendant tending to prove that the prosecuting witness had made improper and indecent proposals to and assaults upon defendant's wife, and that knowledge of such facts had been communicated to defendant before the assault was admissible: (a) To support the plea of self-defense. Gafford v. State, 122 Ala. 54; State v. Thomas, 169 Iowa 591. (b) To prove provocation. State v. Stewart, 274 Mo. 661; State v. Grugin, 147 Mo. 39; Bond v Williams, 279 Mo. 215. (c) As a part of the res gestae. Maher v. People, 10 Mich. 212. (2) The evidence tendered by defendant to prove the reasons given by defendant for the purchase of the revolver was admissible. Com. v. Hourigan, 89 Ky. 305; Knapp v. State, 79 N. E. (Ind.) 1076.

Robert W. Otto, Attorney-General, and W. F. Frank, Assistant Attorney-General, for respondent.

(1) The alleged complaints in the original motion for new trial are not here for review, because the filing of the amended or supplemental motion for new trial is an abandonment of the original motion. Brinton v. Thomas, 138 Mo.App. 73; Fussellman v. Railroad, 139 Mo.App. 201; Nedvidek v. Meyer, 46 Mo. 603; Kortzendorfer v. St. Louis, 52 Mo. 206; 20 R. C. L. p. 305, sec. 87. (2) No error was committed in excluding testimony to show that the prosecuting witness had made indecent proposals to and improper advances toward appellant's wife. State v. Stewart, 278 Mo. 191; State v. Stewart, 296 Mo. 19. Such evidence is admissible only when discovery of same is so near the crime as to afford no time for inflamed passion to cool. State v. Privitt, 175 Mo. 207; State v. France, 76 Mo. 685; Collins v. Todd, 17 Mo. 537; Coxe v. Whitney, 9 Mo. 531; State v. Vest, 254 Mo. 459; State v. Jones, 78 Mo. 278; Endicott v. Robertson, 244 S.W. 948; 16 A. L. R. 825. (3) Evidence of defendant as to his reason why he was buying a revolver for his wife was properly excluded because self-serving.

OPINION

Blair, J.

Defendant was convicted of assault with intent to kill with malice aforethought. The jury assessed his punishment at imprisonment in the penitentiary for two years. Defendant appealed from the judgment entered on such verdict.

As the chief questions in the case relate to the admissibility of certain testimony offered by defendant and excluded by the trial court and as defendant makes no contention that the evidence was insufficient to support the verdict, only a brief statement of facts is necessary. There is no controversy concerning the main facts, except as to the acts and conduct of the prosecuting witness immediately preceding the assault, upon which defendant's plea of self-defense was based.

Defendant and his wife were walking eastward upon the north sidewalk of Promenade Street in the city of Mexico, Missouri, shortly after the lunch hour, on March 1, 1924, when they met the prosecuting witness, Howard D. Conger, coming toward them upon the same side of the street. When Conger and defendant were a few feet apart, defendant drew a pistol and fired at Conger. Three or four shots altogether were fired by defendant. Two of them took effect. Conger was seriously wounded, but recovered and testified at the trial.

Defendant and his wife testified that, as Conger approached them, defendant's wife clutched his arm in fear and said, "There's that man." Defendant asked, "What man?" and she said, "Conger." Mrs. Burns testified that Conger had his hands in his pockets and was looking at defendant with a queer expression on his face and had such a queer attitude that it frightened her and she made the remarks above quoted. She said Conger had gotten close and was leaning forward and that defendant fired one shot and Conger leaped toward him and defendant shot two or three times and turned Conger's attack. Conger then passed on down the street.

After testifying concerning the remarks made to him by his wife as Conger approached, defendant said that he looked up and saw a man approaching eight or ten paces away. The man had his hands either in his front or his hip pockets. He had on an overcoat which was unbuttoned and thrown back. He had an insolent attitude and defendant thought such attitude was threatening. When about ten feet away defendant saw some kind of a movement of Conger's hands, which were then in his pockets, and supposed he was armed and about to draw a weapon. He fired once. Conger withdrew his hands from his pockets and sprang toward defendant, who then fired two or three times while Conger's body was coming toward him. Defendant had no previous acquaintance with Conger and had only heard of him through his wife.

Conger's version agreed with that of defendant and his wife up to the time they approached closely. He said he saw defendant and his wife coming. He kept on coming and they kept walking toward him. When he got within ten or fifteen feet of them he turned his head and cleared his throat to spit. When he looked back defendant had his pistol drawn and immediately began firing. Conger was unarmed. He made no attempt to assault defendant.

Defendant was a minister of the Gospel and had served as pastor of a church or churches. At the time of the assault he held the position of instructor in Bible at Hardin College in Mexico, though he was then and had been for sometime in attendance at college in Chicago. It was shown that defendant sustained a good reputation as a peaceable, law-abiding, honorable and upright citizen.

We have simply sketched the barest outline of the facts. Certain proof was excluded by the court which, if admitted and believed by the jury, would have thrown light upon the otherwise strange and unusual acts and conduct of defendant and explained much that appears to be unaccountable in the bare facts permitted to go to the jury. The action of the court in excluding this proof constitutes the chief complaint of defendant in this court. The nature of such proof will appear hereinafter in connection with our consideration of its admissibility.

The jury returned its verdict on June 17, 1924, and upon the same day defendant filed motions for new trial and in arrest of judgment. Three days thereafter and within four days after the verdict was returned into court, defendant filed a motion, the first paragraph of which is as follows:

"Comes now the defendant and for his supplemental motion for a new trial moves the court to set aside the verdict of the jury in the above-entitled cause and grant him a new trial thereof for the following reasons in addition to the reasons set forth in the motion for a new trial filed on the 17th day of June, 1924, to-wit:" (Then follows a statement of such reasons.)

Respondent contends that the filing of said supplemental motion for new trial constituted an abandonment of the original motion for new trial and hence that the only matters before this court for review, outside of the questions raised by the motion in arrest of judgment, are the assignments of error made in said supplemental motion.

The purpose of the motion for new trial is to call the attention of the trial court to matters and rulings occurring during the progress of the trial, which the movent contends constitutes reversible error, in order to give the trial court an opportunity to correct its own errors, if any there were, and to avoid the necessity of an appeal, as well as to furnish proof to the appellate court that such alleged errors were properly called to the attention of the trial court.

The authorities cited by respondent are Brinton v. Thomas, 138 Mo.App. l. c. 73; Fussellman v. Railroad, 139 Mo.App. l. c. 201; Nedvidek v. Meyer, 46 Mo. l. c. 603; Kortzendorfer v. St. Louis, 52 Mo. l. c. 205, 206, and 20 R. C. L. 305, sec. 87. We have carefully studied the cases and the text cited, but are of the opinion that they are not controlling here. In none of such cases are the facts like those here or so similar as to be controlling. The broad proposition is stated that an amended petition, answer or reply constitutes an abandonment of the original pleading. In the Brinton and Fussellman cases amended motions for new trial were filed more than four days after verdict and judgment, and the original motions for new trial were held to be the motions properly before the appellate court because they were not superseded by amended motions which had been filed out of time. Those cases state the rule to be that a timely amended motion for new trial constitutes an abandonment of the original motion, just as an amended petition or answer constitutes abandonment of the original pleading. That such should be the rule, when an amended motion for new trial is filed which makes no mention of nor any reference to the grounds for trial set out in the original motion, appears to be reasonable.

But, keeping in mind that the office of a motion for new trial is to call the attention of the trial court to errors alleged to have occurred during the progress of the trial, the reason for such rule fails where, as here, the motion, called a supplemental motion, clearly and in unmistakable terms calls the attention of the trial court to the fact that the moving party is not abandoning the grounds already set forth in the original motion and plainly states that the grounds set forth in the supplemental motion are "in addition to the reasons set forth" in the original motion.

One reason for the rule that an amended pleading constitutes an abandonment of the prior pleading, rests upon the presumption that such was the intention of the...