The State v. Rasco

• Decision Date: 06 February 1912
• Parties: THE STATE v. HEZ RASCO, Appellant
• Court: Missouri Supreme Court

144 S.W. 449

239 Mo. 535

THE STATE v. HEZ RASCO, Appellant

Supreme Court of Missouri, Second Division

February 6, 1912

[Copyrighted Material Omitted]

Appeal from Nodaway Circuit Court. -- Hon. Wm. C. Ellison, Judge.

Affirmed.

E. E Williams and Ellis G. Cook for appellant; Crawford & Sayler of counsel.

(1) The court erred in overruling defendant's application for a change of venue. State v. Goddard, 146 Mo. 181; State v. Streight, 138 S.W. 742. (2) The court erred in overruling defendant's motion for a continuance. State v. Warren, 94 Mo. 648; State v. Hesterly, 182 Mo. 16; State v. Neiderer, 94 Mo. 79; State v. Loe, 98 Mo. 613; State v. Berkley, 99 Mo. 41; State v. Maddox, 117 Mo. 667; State v. Martin, 230 Mo. 668; State v. Anderson, 96 Mo. 253. (3) The court erred in overruling defendant's challenges to jurors Hayes, Jones and Speer. Mahaney v. Railroad, 108 Mo. 191; State v. Foley, 144 Mo. 600; Theobald v. Hartman, 191 Mo. 416. (4) The court erred in permitting the prosecuting attorney to recite to the jury certain alleged facts and circumstances which were clearly incompetent, irrelevant and immaterial as evidence in the case. Kelly's Crim. Law (Ed. 1876), par. 343; State v. Kennedy, 177 Mo. 98. (5) The court erred in admitting incompetent, irrelevant and immaterial testimony over the objections and exceptions of defendant: 1st. As to deceased exhibiting at his home, in the absence of the defendant, on the 20th day of November, 1910, a large sum of money, it not being shown to the jury that the defendant had any knowledge thereof. 2nd. In permitting the State to go into detail and show the supposed cause of the death of Clara, Walton and Jessie Hubbell. Green v. Com., 17 Ky. L. Rep. 940. 3rd. In permitting the coroner to give his opinion that the brains of the children were torn asunder because he did not find the skulls intact. 4th. In permitting the testimony of doctors as to the autopsy of the female body, which was held at Barnard. 5th. In permitting witnesses to testify whose names were not indorsed in the information, and no order or affidavit made by the prosecuting attorney at the time the subpoenae was issued, thus depriving the defendant of the right to meet such testimony. 6th. Conversations with the defendant by officers, not made against interest, not pertaining to the res gestae, and being no confession. State v. Jackson, 95 Mo. 624. 7th. In permitting the officers to give in detail conversations had with the defendant, as to his whereabouts, and in the State's case in chief to show that the statements made by the defendant were untrue, not having at the time any benefit of a statement by the defendant. 8th. In permitting witness Mrs. Wilson, to give in detail sounds heard over the telephone, without it being shown that the sounds came from the home of the deceased. State v. Vicker, 209 Mo. 31. 9th. In permitting any testimony as to the acts and doings of the bloodhounds. Brott v. State, 97 N.W. 593; Parker v. State, 46 Tex. Crim. 441; 3 Am. & Eng. Ann. Cases, 893; Pedigo v. State, 6 Ency. Ev. 931; Hargrave v. State, 147 Ala. 97; Richardson v. State, 145 Ala. 46; State v. Hodge, 98 Ala. 10; State v. Hall, 4 Ohio 147. 10th. In permitting exhibits to be introduced in evidence without being properly identified, and after their condition had been changed since the officers took them into their possession. Wharton's Crim. Evidence (8 Ed.), sec. 767; State v. Buehler, 102 Mo. 208; State v. Goddard, 146 Mo. 184; People v. Hawes, 96 Cal. 648. (6) The court erred in failing and refusing to instruct on all the law applicable to the case at the close of all the evidence. State v. Crabtree, 111 Mo. 136; State v. Maguire, 113 Mo. 670; State v. Nelson, 118 Mo. 124; State v. Taylor, 118 Mo. 153; State v. Palmberg, 199 Mo. 333; State v. Porter, 213 Mo. 59; State v. Bobbitt, 228 Mo. 271; State v. Kennedy, 177 Mo. 132; State v. Lackey, 230 Mo. 707; State v. Minor, 195 Mo. 597; State v. Hoag, 232 Mo. 308; State v. Harris, 232 Mo. 317. (7) The court erred in refusing to give instructions offered and requested by the defendant. Coffin v. United States, 156 U.S. 432; State v. Kennedy, 154 Mo. 268; State v. Howell, 117 Mo. 324; State v. Sharpless, 212 Mo. 204; State v. Bauerle, 145 Mo. 17. (8) The court erred in permitting the prosecuting attorney and associate counsel for the State to use abusive and unwarranted language toward the defendant and to apply vile and abusive epithets to the defendant in the course of their arguments to the jury, over the defendant's objections and exceptions. State v. Jackson, 95 Mo. 623; State v. Young, 99 Mo. 666; State v. Ulrich, 110 Mo. 350; State v. Fisher, 124 Mo. 460; State v. Bobbst, 131 Mo. 328; State v. Prendible, 165 Mo. 329; State v. Elmers, 115 Mo. 404. (9) The court erred in failing to properly rebuke the spectators in attendance on the trial for an outburst of applause during and at the close of assistant prosecuting attorney's argument to the jury. State v. Dusenberry, 112 Mo. 277; State v. Gartrell, 171 Mo. 469. (10) The court erred in overruling defendant's motion for a new trial. Particularly in the matter of bias of juror Norman, expressed before his selection as a juryman. State v. Ross, 29 Mo. 33; State v. Burnside, 37 Mo. 343; State v. Gonce, 37 Mo. 627; State v. Wyatt, 50 Mo. 309; State v. Taylor, 64 Mo. 358.

Elliott W. Major, Attorney-General, and Campbell Cummings, Assistant Attorney-General, for the State; George Pat Wright and Marshall E. Ford of counsel.

(1) Change of venue. Unless the evidence of the prejudice of the inhabitants of the county against the appellant is of such a character as to indicate that the trial court abused its discretion in refusing a change of venue, the Supreme Court will not hold error was committed in denying it. State v Sharp, 233 Mo. 282; State v. Barrington, 198 Mo. 85; State v. Clevenger, 156 Mo. 190; State v. Albright, 144 Mo. 638; State v. Tetlow, 136 Mo. 678; State v. Dyer, 139 Mo. 199; State v. Vickers, 209 Mo. 12. The evidence as to the change of venue was conflicting, and the court will not disturb the finding of the trial court. State v. May, 172 Mo. 643; State v. Tettaton, 159 Mo. 372; State v. Barrington, 198 Mo. 84. The alleged prejudice, as shown by appellant's own witnesses, was based on rumor and newspaper reports, and largely conditioned upon his being the perpetrator of the crime. This was not a disqualifying prejudice. State v. Hays, 78 Mo. 314; State v. Burns, 85 Mo. 47. On a motion for continuance, appellant's affidavit must show due diligence, and set out circumstances showing the materiality of the testimony sought. It is equally well established that matters of continuance rest largely within the discretion of the trial court, and the presumption is in favor of its ruling. State v. Cochran, 147 Mo. 504; State v. Kindred, 148 Mo. 281; State v. Olds, 217 Mo. 312; State v. Horn, 209 Mo. 461; State v. Crane, 202 Mo. 74; State v. Riney, 137 Mo. 102; State v. Tatlow, 136 Mo. 678; State v. Maddox, 117 Mo. 667; State v. Banks, 118 Mo. 117; State v. Pagels, 92 Mo. 307. An examination of the record will show that, though a little slow mentally, Hays was qualified, as he stated that unless the evidence proved the defendant guilty beyond a reasonable doubt, he would acquit him, regardless of his former opinion. State v. Cunningham, 100 Mo. 389; State v. Brennan, 164 Mo. 507. The excusing of a juror is a matter within the discretion of the court, and it will not be disturbed where abuse is not shown. State v. Taylor, 134 Mo. 109; Glasgow v. Railroad, 191 Mo. 347. (2) After the alleged improper remarks of the prosecuting attorney in his opening statement as to certain alleged threats, which the State subsequently failed to prove, it is sufficient to state that there is no such ground preserved in appellant's motion for new trial, and, therefore, the same was not in this court for review. State v. Lackey, 230 Mo. 707; State v. Witherspoon, 231 Mo. 706; State v. Scott, 214 Mo. 261; State v. McKee, 212 Mo. 149; State v. Brannan, 206 Mo. 636; State v. Grant, 144 Mo. 66; State v. Hultz, 106 Mo. 41; State v. Marshall, 36 Mo. 400. It is not the practice of the court to rule on the admission or exclusion of evidence at the time of the prosecuting attorney's opening statement. State v. Casto, 231 Mo. 398. Moreover, counsel must request the court to reprimand the prosecuting attorney, and must except to the failure of the court to reprimand. State v. Souva, 234 Mo. 666. (3) As to the prosecuting attorney's remarks in his argument to the jury to avail appellant, it was necessary for him to have requested the court to rebuke State's counsel. This he did not do. State v. Chenault, 212 Mo. 137; State v. Harvey, 214 Mo. 411; State v. McCarver, 194 Mo. 717; State v. Valle, 196 Mo. 29; State v. McMullen, 170 Mo. 632. He must except to the failure of the trial court to comply with his request to reprimand the prosecuting attorney for his improper remarks. State v. Souva, 234 Mo. 566; State v. Harvey, 214 Mo. 411; State v. Dusenberry, 112 Mo. 293; State v. Howard, 118 Mo. 146; State v. Kullman, 225 Mo. 632; State v. McMullen, 170 Mo. 632; State v. Murphy, 201 Mo. 696. (4) As to the applause by a part of the audience as to the assistant prosecuting attorney's remarks at the close of his argument, the court adequately rebuked the disturbers. State v. Gartrell, 171 Mo. 513; State v. Dusenberry, 112 Mo. 293. (5) Appellant complains in regard to the admission of testimony relative to the actions of two bloodhounds used in tracing appellant. The following is the complete list of such cases, so far as we can find, after diligent search: Hodge v. State, 98 Ala. 10; Simpson v. State, 111 Ala. 6; Little v. State, 145 Ala. 662, 39 So. 674; Richardson v....