The State v. Woodward

• Decision Date: 12 December 1905
• Parties: THE STATE v. CLIFFORD WOODWARD, Appellant
• Court: Missouri Supreme Court

90 S.W. 90

191 Mo. 617

THE STATE v. CLIFFORD WOODWARD, Appellant

Supreme Court of Missouri, Division Two

December 12, 1905

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

Reversed and remanded.

Duncan & Bragg, J. S. Gossom and B. A. McKay for appellant.

(1) The court should have sustained appellant's objection to the leading questions propounded to witness Curry. McKelvey, Ev sec. 236; State v. Keith, 53 Mo.App. 383. (2) The court committed reversible error in permitting the State to prove the good reputation of the deceased when the defense had not put the reputation of deceased in issue by offering evidence of his bad reputation. McKelvey, Ev., sec. 120. The defense can only attack the reputation of deceased by showing his general character or reputation, which was never done in this case. Kelley's Criminal Law and Practice, sec. 249; State v. Elkins, 63 Mo. 159. (3) The court erred in permitting the State to show the bad reputation of defendant when he had not offered evidence of his good reputation. (4) It was error for the court to permit witness Bailey to testify to the conviction of defendant in his justice court of former offenses committed by defendant. This testimony should have been excluded, as it was not the proper way to prove conviction on a former charge and was greatly prejudicial to defendant. R.S. 1899, sec. 4680; State v Creason, 38 Mo. 372; 3 Greenleaf on Ev., sec. 25; State v. Kenney, 177 Mo. 117. (5) There was no testimony authorizing the instruction as to defense of defendant's brother. Defendant relied upon his own necessary self-defense as a defense in this cause, and at no time was there any testimony offered which would authorize the above instruction. This instruction was greatly prejudicial to appellant, as it diverted the minds of the jury from the real defense. State v. Thompson, 83 Mo. 260; State v. Degonia, 69 Mo. 485; State v Tice, 90 Mo. 112; State v. Herrell, 97 Mo. 105. (6) The information is insufficient in law and does not charge an offense against this defendant, in this, to-wit, because the information does not charge the wounding and killing to have been felonious, wilful, premeditatedly and of malice aforethought. State v. Williams, 184 Mo. 261; State v. Rector, 126 Mo. 329; State v. Ferguson, 162 Mo. 673; State v. Green, 111 Mo. 585; State v. Fairlamb, 121 Mo. 154; State v. Clayton, 100 Mo. 516; State v. Herrell, 97 Mo. 105; State v. Feaster, 25 Mo. 324.

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

(1) The trial court, in the exercise of its discretion, had the right to allow the State's attorney to ask leading questions. State v. Napper, 141 Mo. 401; State v. Whalen, 148 Mo. 290. (2) Defendant insists that error occurred in permitting the State to prove the good reputation that deceased enjoyed as a peaceable and orderly man. Having opened up the subject and in this way attacked the general reputation of deceased, the State then had the right to prove that his reputation was good. (3) It was competent for the State to attack the reputation of defendant and his brother George for morality, as both of them had testified in this case. State v. Evans, 158 Mo. 609; State v. May, 142 Mo. 135. In cross-examining these character witnesses, the defendant brought out from them the fact that defendant and his brother had bad reputations for peace and good order. Certainly defendant cannot complain of evidence that he himself elicited. It was his privilege to descend into particularities, and he did so at his peril. State v. Hamey, 168 Mo. 197; State v. Palmer, 88 Mo. 572. (4) The information, which was duly verified, is sufficient in form and substance. The cases cited by appellant do not hold that this information is insufficient; in fact, they hold the contrary. State v. Williams, 184 Mo. 261; State v. Terry, 172 Mo. 213.

OPINION

FOX, J.

This cause is here on appeal from a judgment of conviction in the circuit court of Pemiscot county of murder in the second degree. This prosecution is based upon an information filed by the prosecuting attorney of Pemiscot county charging George and Clifford Woodward with murder in the second degree. The correctness and validity of the information being challenged, it is well to reproduce it. It is as follows:

"In the circuit court of Pemiscot county, Missouri, To February term, 1904.

"State of Missouri, County of Pemiscot. ss.

"State of Missouri

v.

"George Woodward and Clifford Woodward.

"L. L. Collins, prosecuting attorney, within and for the county of Pemiscot and State of Missouri, upon his official oath informs the court, that George Woodward and Clifford Woodward, late of the county of Pemiscot and State of Missouri, on the 16th day of January, 1904, at the county of Pemiscot and State of Missouri, did then and there in and upon the body of one Ed. Pedigo, then and there being, unlawfully, wilfully, feloniously, premeditatedly, on purpose and of their malice aforethought make an assault, and with a certain dangerous and deadly weapon, to-wit, a club, which said club was then and there of the length of four feet, of the breadth of two inches and of the weight of ten pounds and which said club they, the said George Woodward and Clifford Woodward, then and there in their hands had and held, they, the said George Woodward and Clifford Woodward, did then and there unlawfully, wilfully, feloniously, premeditatedly, on purpose and of their malice aforethought strike and beat him, the said Ed. Pedigo at and upon the right side of the head of him the said Ed. Pedigo, with the club aforesaid, and inflicting on and giving to him, the said Ed. Pedigo, in and upon the right side of the head of him, the said Ed. Pedigo, one mortal wound, which said mortal wound was of the length of four inches and of the breadth of two inches, of which said mortal wound the said Ed. Pedigo from the said 16th day of January, 1904, the year aforesaid, in the county aforesaid, until the 18th day of January, in the year aforesaid, in the county aforesaid, did languish, and languishing did live, on which said 18th day of January in the year aforesaid, the said Ed. Pedigo, in the county and State aforesaid, of the mortal wound aforesaid, died; and so L. L. Collins, prosecuting attorney as aforesaid, upon his official oath as aforesaid, doth say that they, the said George Woodward and Clifford Woodward, him, the said Ed. Pedigo, in the manner and by the means aforesaid, wilfully, unlawfully, feloniously, premeditatedly, on purpose and of their malice aforethought did kill and murder, against the peace and dignity of the State.

"L. L. Collins,

"Prosecuting Attorney.

"L. L. Collins, prosecuting attorney, within and for Pemiscot county, Missouri, being duly sworn upon his oath says that the facts stated in the above and foregoing information are true according to his best knowledge, information and belief.

"L. L. Collins.

"Subscribed and sworn to before me this 19th day of January, 1904. (L. S.)

"J. W. Green,

"Clerk of the Circuit Court.

"Harvey E. Averill, D. C."

Upon the trial the State's evidence tended to show that deceased was the proprietor of a pool hall, on one side of which he had a lunch counter. This pool hall was situated in the rear of George Myrick's saloon in the town of Steele in Pemiscot county; and between the saloon and the pool room was a small room called the "stove room." In the rear and to the side of the pool room was a small back yard, known as the bull pen. There was evidence to the effect that deceased and defendant had trouble on two former occasions, once at another pool room in Steele, and once when defendant and the Moore boy were about to have a fight during a charivari. When deceased prevented this fight, the defendant threatened deceased; this was some two weeks before the final difficulty. Deceased was sitting in the stove room about seven o'clock on the night of the difficulty, talking to some one, when defendant came into the saloon. There was evidence to show that one, perhaps both of them, had been drinking some, but neither one was intoxicated. As he came in the front door, defendant said to Charles Johnson, the bartender, "Is there any God-damn-son-of-bitch in here that wants to fight?" To this remark, the bartender replied that he did not see any son-of-a-bitch in there, that he might go into the back room. Defendant walked straight into the stove room, where he at once engaged in a controversy with deceased about some games of pool that deceased said he had played and had not paid for; deceased asked him not to play any more till he had paid what he owed. Defendant said that he was going to play anyhow, and started into the pool room. A short time prior to this deceased and defendant's brother, George Woodward, had some trouble in the pool room over some eggs that George had ordered, but refused to pay for. About the time defendant came into the pool room, George Woodward again appeared, but no one seem to know which way he came from. Defendant and deceased caught hold of each other and began pushing, when defendant exclaimed, "If you don't turn me loose, I will kill you." One witness testified that defendant said that he would not fight Pedigo (deceased) in his own house, but that he could whip any son-of-a-bitch in there. After a mild fight in the pool room, both combatants went out the side door into the bull pen, George Woodward going out with them. As soon as the ground was reached, defendant ran up against deceased, and deceased pushed him back. George Woodward then ran up and struck at deceased twice, hitting him once on the neck or shoulder. Defendant was then heard to say, "I will kill the Goddamn-son-of-a-bitch." Defendant...