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Docket Number

No. 43081.

Attorney(S)

Ellis G. Cook and Raymond Eckles, Maryville, for appellants. J. E. Taylor, Atty. Gen., John R. Baty, Asst. Atty. Gen., for respondent.

Judges

HYDE, Presiding Judge.

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Smart Summary

State v. Kaufman et al., No. 43081 (Supreme Court of Missouri, Div. No. 1, Feb. 9, 1953)

Factual and Procedural Background

Defendants Kaufman and McElroy were tried, found guilty of grand larceny, and each sentenced to two years in the penitentiary. The State's evidence established that corn was stolen from the crib of Johnny Jones during the night of January 28, 1951. Jones discovered the theft the next morning, found several ears of corn along the road between his crib and the Kaufman farm, and observed a pickup truck loaded with corn on the Kaufman place. After notifying the sheriff, a deputy later discovered the truck had been unloaded. Kaufman admitted to taking the corn and, together with McElroy (who had been with him that night), was taken to the prosecuting attorney's office where both signed statements admitting the taking. Kaufman dictated his statement to the prosecuting attorney's secretary in McElroy's presence, and McElroy agreed it was correct. The secretary testified at trial from her shorthand notes as to what the defendants had told her.

Both defendants testified at trial and each denied on direct examination that he went to Jones' crib or took corn. On cross-examination each identified his signature on the signed statements and was questioned about making a statement and its contents; the written statements themselves were not introduced into evidence. Defendants objected, arguing improper cross-examination and that the State had agreed not to use the signed statements.

Legal Issues Presented

Whether the trial court erroneously permitted the State to cross-examine the defendants about matters not testified to in chief, including prior signed statements, for impeachment purposes.
Whether the State breached an asserted agreement not to use the signed statements against the defendants.

Arguments of the Parties

Appellants' Arguments

Cross-examination on matters not testified to in chief was improper; the State should not have been allowed to question defendants about the signed statements after they had denied the theft on direct examination.
The State had agreed not to use the signed statements and then "broke faith" by using them in cross-examination.

Respondent's Arguments

The statutory rule (Section 546.260, RSMo 1949, V.A.M.S.) makes a testifying defendant subject to cross-examination "as to any matter referred to in his examination in chief" and permits contradiction and impeachment by prior inconsistent statements; thus prior admissions may be used to impeach a defendant who testifies inconsistently at trial.
There was no binding agreement by the State never to use the statements; the prosecutor's remarks did not preclude use of the statements for impeachment if the defendants testified and denied the charged conduct.
The prosecuting attorney's secretary had testified, without objection, to what defendants told her (from shorthand notes) and defendants offered no explanation or denial of those facts after being cross-examined about them.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. West, 95 Mo. 139, 8 S.W. 354	Supports that a defendant who testifies may be impeached by proof of prior inconsistent statements.	Cited as part of the line of cases establishing that impeachment by prior inconsistent statements is permissible.
State v. Kennade, 121 Mo. 405, 26 S.W. 347	Same general principle: impeachment of a testifying defendant by prior inconsistent statements.	Relied on to show the rule is well settled in Missouri jurisprudence.
State v. Clough, 327 Mo. 700, 38 S.W.2d 36	Illustrates the established rule permitting impeachment of a testifying defendant.	Included among authorities supporting admissibility of prior inconsistent statements for impeachment.
State v. Perkins, 342 Mo. 560, 116 S.W.2d 80	Part of the line of cases recognizing impeachment of defendants by prior inconsistent statements.	Used to reinforce that defendants may be contradicted and impeached when they testify.
State v. Woods, 346 Mo. 538, 142 S.W.2d 87	Supports the rule allowing impeachment of a defendant who testifies inconsistently with prior statements.	Cited as further precedent establishing the admissibility of prior inconsistent statements for impeachment.
State v. Christian, Mo.Sup., 245 S.W.2d 895	Another authority recognizing that a testifying defendant is subject to impeachment by prior inconsistent statements.	Included to show continuity of Missouri precedent on impeachment of testifying defendants.
State v. Miller, 190 Mo. 449, loc. cit. 463, 89 S.W. 377, 381	Explains that the statute does not allow a defendant to testify briefly and then be immune from cross-examination on the issues thus tendered; cross-examination may probe details of matters referred to in chief.	Quoted to support the proposition that a general denial opens the entire issue to detailed cross-examination.
State v. Myers, 221 Mo. 598, loc. cit. 613, 121 S.W. 131	Reinforces that cross-examination is not restricted to a mere review of matters stated by defendant in chief and may be detailed.	Cited with Miller to justify broad cross-examination when defendant broadly addresses the issue.
State v. Ayres, 314 Mo. 574, 285 S.W. 997, 998	Defines "the matter referred to in his examination in chief" to include subjects the defendant testifies about generally, allowing detailed inquiry into those subjects and prior inconsistent statements regarding his actions.	Applied to hold that defendants' general denial of the theft opened the subject and made prior inconsistent statements admissible for impeachment.

Court's Reasoning and Analysis

The court began with Section 546.260, RSMo 1949, V.A.M.S., which makes a defendant a competent witness and provides that a testifying defendant "shall be liable to cross-examination, as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case." Relying on a line of Missouri cases, the court observed that it is well settled a defendant who testifies may be impeached by proof of prior inconsistent statements.

The court explained that a defendant's general denial (here, a sweeping denial of the charged theft) is a statement of fact that "in a general way refers to a subject" and thereby opens that subject to detailed cross-examination. Citing State v. Miller and State v. Myers, the court emphasized that cross-examination under the statute is not limited to a categorical review of matters stated by the defendant; detailed inquiry into the subject is permissible. The court also quoted State v. Ayres for the proposition that where a defendant states a fact regarding his actions, the prosecutor may inquire into particular circumstances that shed light on that fact.

Regarding the defendants' contention that the State had agreed not to use the signed statements, the court reviewed the record of remarks made at the trial's start. The prosecutor's statements indicated he would not use the signed statements in his opening but explicitly declined to make a binding promise never to introduce them under all conditions. The defense counsel's understanding was that the statements would not be used in the State's case in chief unless the defendants "throw the bars down" (i.e., testified). The court therefore found no record of a binding agreement restricting use of the statements in the event the defendants testified.

The court further noted that the prosecuting attorney's secretary testified, without objection, to the facts she recorded in shorthand—which were substantially the same as the contents of the written statements—and that after being cross-examined about those facts the defendants made no denial or offered no explanation for the circumstances under which the statements were made. Considering the statute, the prior cases, the nature of the defendants' testimony, the prosecutor's limited remark, and the secretary's testimony, the court held the use made of the statements was proper to impeach the defendants after they denied committing the theft on direct examination.

Holding and Implications

Holding: The judgment of the trial court is affirmed.

Implications: The direct effect is that the convictions and two-year penitentiary sentences of defendants Kaufman and McElroy were upheld. The court applied existing statutory language and established Missouri precedents permitting cross-examination and impeachment of a testifying defendant by prior inconsistent statements when the defendant's testimony opens the subject; the opinion does not announce a new legal rule beyond the cited authorities.

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STATE v. KAUFMAN ET AL.

HYDE, Presiding Judge.

Defendants were found guilty of grand larceny and each sentenced to two years in the penitentiary. Only one question has been presented by defendants in their motions for new trial and in their brief, namely: that the Court erroneously permitted the State to cross-examine defendants on matters not testified to in chief.

The State's evidence showed that corn was stolen from the crib of Johnny Jones during the night of January 28, 1951. This was discovered by Jones early the next morning; and going upon the public road, he found several ears of corn along the right side of the road between his crib and the Kaufman farm. He saw a pickup truck loaded with corn on the Kaufman place and called the sheriff's office. About three hours later, a deputy sheriff went with Jones and another man, Taylor, and found that the truck had been unloaded. Defendant Kaufman was questioned and finally admitted to them that he had taken the corn and he and defendant McElroy, who had been with him that night, were taken to the prosecuting attorney's office by the deputy sheriff. They both signed statements there admitting they took the corn. It was shown that Kaufman dictated his statement to the secretary of the prosecuting attorney in the presence of McElroy, and that McElroy agreed it was correct. The prosecuting attorney's secretary testified at the trial as to what their statements to her were, using her shorthand notes.

Both defendants took the stand and each was asked on direct examination if he went with the codefendant to the Jones' crib on the night designated and took corn out of it. Each said that he did not. On cross-examination each was asked to identify his signature on the signed statements and each did so. Each was further cross-examined about making a statement and about its contents; but the statements were not offered in evidence. It is this cross-examination, and the use of the statements in connection with it, that defendants claim was improper.

Section 546.260, RSMo 1949, V.A.M.S., makes a defendant in a criminal case a competent witness and provides that one testifying "shall be liable to cross-examination, as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case". It is well settled that a defendant who testifies may be impeached by proof of prior inconsistent statements. State v. West, 95 Mo. 139, 8 S.W. 354; State v. Kennade, 121 Mo. 405, 26 S.W. 347; State v. Clough, 327 Mo. 700, 38 S.W.2d 36; State v. Perkins, 342 Mo. 560, 116 S.W.2d 80; State v. Woods, 346 Mo. 538, 142 S.W.2d 87; State v. Christian, Mo.Sup., 245 S.W.2d 895. Moreover, the statute "does not mean that a defendant can take the stand and in answer to one or two well-prepared interrogatories sweep away the whole structure of the state's case, and then remain immune from a cross-examination on the issue thus tendered." When "The questions put to him involved practically the whole issue tendered by the indictment, * * * he cannot be heard to complain that the state proceeded to cross-examine him on these matters. * * * Cross-examination, as used in the statute, does not mean a mere categorical review of the matters stated by defendant." State v. Miller, 190 Mo. 449, loc. cit. 463, 89 S.W. 377, 381; State v. Myers, 221 Mo. 598, loc. cit. 613, 121 S.W. 131. Furthermore, as said in State v. Ayres, 314 Mo. 574, 285 S.W. 997, 998, in admitting a prior statement about a matter inconsistent with defendant's testimony in chief: "The `matter referred to in his examination in chief' means the things he testifies about. * * * If the defendant in chief in a general way refers to a subject, he may be examined in detail as to that subject. Where he states a fact in relation to his actions, the prosecutor may inquire as to particular circumstances which would throw light on that fact." So, in this case, defendants' sweeping denial of the theft was a statement of fact in such a general way as to open for cross-examination in detail the whole subject of whether or not they committed it; and made their prior inconsistent statements that they did so admissible for their impeachment.

However, defendants claim that the State agreed not to use these signed statements and then "broke faith with the defendants" in doing so. At the beginning of the trial, when defendants' counsel was objecting to the use of these statements (apparently on the ground that they were coerced) it was stated on behalf of the State, as follows: "We are just telling the court I am not going to take it up in the opening statement now, your honor, but I am not going to say I am not going to introduce those statements in evidence, — that the State is not going to introduce those statements during the trial of the law suit. * * * I make the statement again for the State, that since Mr. Cook has raised this and if he has some objection to these statements, that we will use the actual shorthand notes that were taken and that we do not intend to say that they signed these statements, if he objects to them, in the opening statement or to say it in the trial but the State does not want to make a binding statement here that under all conditions here they will not use these statements. * * * I don't want the court to get the impression that I was saying under no conditions was I not going to introduce the statements." Defendants' counsel then said: "I understand, if the court please, that in their case in chief, unless I throw the bars down — that makes it admissible, they are not going to use them in their case in chief." Thus the record does not show any agreement concerning the use of the statements in connection with defendants' cross-examination, in case they decided to testify. Furthermore, defendants' objections during their cross-examination were all on the ground of going beyond the scope of their testimony in chief. Moreover, the secretary of the prosecuting attorney did testify, without objection, as to the facts stated by defendants which were taken by her in shorthand (from which the statements were written), and which were substantially the same as the contents of the written statements. Defendants made no denial of her testimony and offered no explanation of the circumstances under which the statements were made, after they were cross-examined about them. From our consideration of the whole record, we hold that the use made of the statements was proper to impeach defendants, after their testimony in chief denying that they committed the theft.

The judgment is affirmed.

All concur.

STATE v. KAUFMAN