The State v. Jones

• Court: Missouri Supreme Court
• Writing for the Court: HIGBEE
• Citation: The State v. Jones, 268 S.W. 83, 306 Mo. 437 (Mo. 1924)
• Decision Date: 31 December 1924
• Docket Number: 25600
• Parties: THE STATE v. LOUIS JONES, Appellant

268 S.W. 83

306 Mo. 437

THE STATE v. LOUIS JONES, Appellant

No. 25600

Supreme Court of Missouri

December 31, 1924

Appeal from New Madrid Circuit Court; Hon. Henry C. Riley Judge.

Reversed and remanded.

S J. Smalley for appellant.

(1) Instruction numbered 5, defining the words "intoxicated condition," given by the court, was error. Sec. 4028 sub. 5, R. S. 1919; State v. Prendible, 165 Mo. 329; State v. Mansfield, 41 Mo. 473; State v. Webb, 254 Mo. 434; State v. Welton, 225 S.W. 968. (2) The court erred in the admissibility of testimony. The court permitted the State to prove: (a) That defendant was guilty of other independent crimes. (b) To impeach defendant as a witness before he went on the stand. (c) That defendant had been convicted of specific crimes, to-wit, assault to rape and disturbing religious worship. Evidence of other independent crimes is inadmissible, and is reversible error. Underhill on Criminal Evidence (2 Ed.) sec. 87; State v. Moberly, 121 Mo. 610; State v. Parker, 96 Mo. 382. Defendant could be impeached as a witness only after he went on the stand, not before. Sec. 4036, R. S. 1919; State v. Spivey, 191 Mo. 110; State v. Wellman, 253 Mo. 319; State v. Conway, 241 Mo. 279. The State could impeach defendant by showing he had been convicted of a criminal offense only, and to further show he had been convicted of assault to rape and disturbing religious worship was reversible error. Sec. 5439, R. S. 1919; State v. Larkin, 250 Mo. 240; State v. Hildebrand, 285 Mo. 299. (3) The court erred in failing to instruct the jury that evidence of other crimes by defendant could only be considered for the purpose of affecting his credibility as a witness, and not as any evidence of his guilt. State v. Wellman, 253 Mo. 318; State v. Conway, 241 Mo. 291. (4) The court erred in giving instruction numbered 1. The instruction should have required the jury to find defendant guilty of the charge contained in the information. This it did not do, and is, therefore, erroneous. Kelley's Cr. Law & Prac. (3 Ed.) p. 203, sec. 246; State v. Harris, 209 Mo. 423.

Jesse W. Barrett, Attorney-General, and William L. Vandeventer, Special Assistant Attorney-General, for respondent.

(1) It was not error to show the character of offenses of which appellant had been convicted. The record could have been introduced under the provisions of the statute and that would necessarily show the character of the offense. Sec. 5439, R. S. 1919. (2) The statement of witness Massengill as to prior convictions of appellant was stricken out. However, this proof was made again after appellant testified, and if error, was harmless. State v. Massey, 274 Mo. 578; State v. Beedle, 180 S.W. 888. (3) Evidence of other crimes is admissible where it tends to prove the crime charged or is so interwoven with the evidence of the crime charged as to be inseparable. State v. Slater, 256 S.W. 1068; State v. Peters, 242 S.W. 897; State v. Grant, 79 Mo. 113; State v. Prunty, 276 Mo. 632; State v. Drummins, 274 Mo. 632; State v. Conway, 241 Mo. 271. (4) Instruction 1 was not erroneous. Where the uncontradicted evidence shows that the alleged crime was committed before the filing of the information it is not error for the court to fail to instruct that the jury find the offense was committed before the filing thereof. Moore v. State, 55 Tex. Crim. 3; State v. Gould, 261 Mo. 694; Green v. State, 66 Tex. Crim. 446.

Higbee, C. Railey, C., concurs.

OPINION

HIGBEE

The defendant was convicted of driving an automobile while in an intoxicated condition, and appealed.

The information was filed by J. M. Massengill, prosecuting attorney, on March 12, 1923. It charges that the defendant, on November 12, 1922, at the county of New Madrid, he being then and there in an intoxicated condition, did unlawfully and feloniously operate, drive and run a certain Ford motor vehicle on Powell Avenue in the city of New Madrid, endangering the life, limb and property of other persons, against the peace and dignity of the State. The cause was tried to a jury and a verdict of guilty returned, assessing the punishment at imprisonment for a term of two years in the penitentiary. We quote from the statement by the Assistant Attorney-General:

"The evidence on the part of the State tended to show that on the 12th day of November, 1922, the appellant was driving a Ford car north on Powell Avenue in the city of New Madrid. The prosecuting witness, J. S. Massengill, who was also the Prosecuting Attorney of New Madrid County, was driving south on the same street in an eight-cylinder Oldsmobile at the rate of about three or four miles per hour. The prosecuting witness was on the right side of the street going south. Appellant was on the west side of the street going north, and was driving his car at an excessive rate of speed. When he got even with the prosecuting witness he turned to the left and ran squarely into the left side of the Oldsmobile, doing it considerable damage.

"There was considerable evidence that appellant was in an intoxicated condition, based upon his breath smelling of whiskey and his general deportment being that of an intoxicated person. After the collision appellant offered to pay the prosecuting witness for the damage that he had done, which offer was refused. There were three other persons in the car with him at the time, and the State's evidence showed that they immediately left the scene of the collision. The testimony seems to show that two informations had been filed against the appellant, the one in question here and another for reckless driving, which was still pending in the Circuit Court of New Madrid County. . . .

"Appellant's testimony was that he was going north on Powell Avenue and saw the prosecuting witness coming south on the wrong side of the street at a distance approximately one hundred fifty feet away; that the prosecuting witness acted like he intended to turn east, but instead of doing so turned his car abruptly toward the west, and was run into by the car of the appellant, causing injury to each of the cars; that he was only running about twelve or fifteen miles an hour, and applied his brakes as quickly as possible, but was unable to avoid the accident because of the negligence of the prosecuting witness; that he was not intoxicated, nor had he been drinking intoxicating liquer at all, but that the accident was wholly the fault of the prosecuting witness by being on the wrong side of the street and by turning directly across Powell Avenue in front of appellant."

The appellant's testimony as to the circumstances of the collision of the two automobiles and that he was not intoxicated was corroborated by several witnesses. It was a close case on the facts.

The defendant was nineteen years of age at the time of the trial. He lived with his widowed mother, three miles east of New Madrid. After breakfast on Sunday morning, November 12, 1922, the defendant, in company with Enoch Floyd and Carl Akers (who were visitors of the family) and another boy, drove to New Madrid to get some bread and meat for dinner. They had been driving about town an hour or more when the collision occurred.

Mr. Massengill, the prosecuting attorney, was the principal witness for the State. On cross-examination he was asked: "Q. He [the defendant] was sober enough to talk? A. Yes, sir. Q. You are not very well acquainted with him? A. I have been in court with him here twice and convicted him, I believe." On motion this was stricken out.

George Traylor, a witness for the State, on cross-examination, testified: "A. Well, I have seen several fellows drunk and I have seen him [defendant] drunk several times." A motion to strike out this answer was overruled.

Rebel Imboden, a witness for the State, testified: "I saw the defendant about 8:30 o'clock on that Sunday morning in his car. Saw defendant afterwards riding in his car. I saw him crowd Mose Lilly over on the curbing; if Mose hadn't got right up on the curb he would have hit him." An objection to this evidence was overruled. Continuing, the witness testified: "There were some boys in the car with Jones. I got a paper and was going down to Doctor McKinney and they passed me right here. I heard one of the boys; I don't know whether it was Jones or not; I heard him say, 'Get out of the road, you big s -- o -- b -- or I will run over you; that was to Mose Lilly.'" A motion to strike this answer and to direct the jury to disregard it was overruled.

Enoch Floyd, a witness for the defendant and in the car at the time of the collision, was asked on cross-examination: "Q. Why wasn't you drunk on this occasion? A. Because I wasn't. Q. You had plenty of opportunity out at Jones's didn't you?" (Objection overruled). "A. No, sir. Q. Jones has whiskey at his home?" (Objection to this was overruled). "A. Never saw any out there. Q. They don't make it out there? A. No." (Objection made). "By the Court: He said no. Q. Were you ever out there when they had a still in operation? A. No." Objection being made, the court said: "No, there wasn't any proof, and he said he didn't know anything about it.

Carl Akers, a witness for the defendant, was asked on cross-examination: "Q. What were you coming up here for? A. Why do people go visiting? Q. I think I know; they had whiskey out at Jones's?" An objection to this was overruled. "A. No, there was not. By Mr. Smalley: You know so much about a still why don't you charge him with it? Mr. Gallivan, special counsel for the State: He was charged with it and convicted. Mr. Smalley: I ask that counsel be rebuked and reprimanded for making that statement and I except to the court in refusing to reprimand counsel." There was no ruling or response by the court.

In the cross-examination by the State of ...