STATE v. MADDOX, Mo., Judgment, Law, casemine.com

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Attorney(S)

A. Lamkin James and Louis J. Rasse for appellant. (1) The court erred in improperly instructing the jury as to the law on self-defense in giving Instruction S-11, for the reason that said instruction unnecessarily restricted defendant's right of self defense, improperly singled out and commented upon portions of the evidence, and instructed on matters not at issue. State v. Williams, 87 S.W.2d 175; State v. Creighton, 52 S.W.2d 556, 330 Mo. 1176; State v. Malone, 39 S.W.2d 794, 327 Mo. 1217; State v. Rennison, 276 S.W. 850, 306 Mo. 473; State v. Creed, 252 S.W. 678, 299 Mo. 307; State v. Ball, 262 S.W. 1043; State v. Yates, 256 S.W. 809, 301 Mo. 255; State v. Adkins, 225 S.W. 982, 284 Mo. 680. (2) The court erred in giving Instruction S-12, for the reason that said instruction improperly told the jury that as to self-defense, the question for them to determine was what they might believe, from all of the evidence, as to the defendant's thoughts, and as to whether or not from all of the evidence his thoughts were reasonable; and for the further reason that said instruction is in direct conflict with Instruction S-18. State v. Beckner, 91 S.W. 892, 194 Mo. 281, 3 L.R.A. (N.S.) 535; Authorities under Point 1. (3) The court erred in permitting the witness Marvin Hayes to testify on rebuttal concerning a previous difficulty with the defendant, for the reason that said testimony was not in rebuttal, was not connected with the homicide, and was prejudicial. State v. Palmer, 220 S.W. 680, 281 Mo. 525; State v. Swain, 68 Mo. 612; State v. Clayton, 13 S.W. 819, 100 Mo. 520, 18 Am. St. Rep. 565; State v. Crabtree, 20 S.W. 7, 111 Mo. 141; State v. Swearengin, 190 S.W. 268, 269 Mo. 177; 30 C.J. 197. Roy McKittrick, Attorney General, and Drake Watson, Assistant Attorney General, for respondent. The testimony of witness Hayes is not for review by this court because the record does not show that the appellant objected prior to the answers made to the questions, and that the objections were overruled and exceptions saved, nor that the appellant moved to strike the answers where answers had been made to the questions asked, nor that adequate grounds of objection were assigned at the time and the claimed error of the trial court properly embodied in the motion for new trial. State v. McCorkendale, 300 S.W. 819; State v. Catalino, 295 S.W. 570; State v. Kile, 253 S.W. 710; State v. Todd, 225 S.W. 910; State v. McGuire, 39 S.W.2d 526; State v. Batey, 62 S.W.2d 452; State v. Miller, 17 S.W.2d 357. This evidence was proper as part of the surrounding facts of the crime, the res gestae, and showed that the appellant was in a reckless and vicious humor and sought trouble, and directly bears on his plea of self-defense. State v. Peters, 242 S.W. 897; State v. Rudolph, 187 Mo. 85; 30 C.J. 195; State v. Spaugh, 200 Mo. 594; State v. Kennedy, 207 Mo. 539; State v. Nelson, 166 Mo. 191; State v. Eaton, 292 S.W. 74; State v. Kowertz, 324 Mo. 756; State v. Daniels, 274 S.W. 28.

Judges

TIPTON, P.J.

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Smart Summary

Factual and Procedural Background

The appellant was convicted in the Circuit Court of Saline County, Missouri, of second degree murder and sentenced to twenty-five years' imprisonment. He appealed. The facts presented in the opinion: on the night of July 22, 1934, after returning from Sedalia the appellant and his companion passed through a negro settlement. The appellant kicked a dog; Evon Campbell (a negro) objected, an exchange of vile names followed, and Campbell picked up a chair and later a Coca-Cola bottle (the appellant claimed it was a gun) and followed the appellant for some distance. The appellant later returned with a shotgun to the vicinity, encountered the deceased, Lester Edward Thompson (a negro), who refused to identify occupants of the house involved in the dog incident. After cursing and a scuffle the appellant shot the deceased, who died the next day. The appellant pleaded self-defense. The State offered rebuttal testimony from Marvin Hayes recounting a prior, separate difficulty between Hayes and the appellant that occurred before the dog incident and which did not involve the deceased; Hayes was not present at the shooting. The trial court admitted Hayes's testimony. On appeal the court considered whether admission of Hayes's testimony was proper and whether it was reversible error.

Legal Issues Presented

Whether the trial court abused its discretion in admitting evidence offered out of order (the Hayes testimony) such that the error is reversible.
Whether testimony of a prior altercation between defendant and a third person (Hayes), which had no connection with the deceased or the homicide, was admissible and, if not, whether its admission was reversible error.

Arguments of the Parties

Appellant's Arguments

The trial court erred in instructions on self-defense (Instruction S-11 and S-12), contending these instructions improperly restricted the right of self-defense, singled out portions of the evidence, and instructed on matters not at issue (citing numerous authorities).
The court erred in permitting Marvin Hayes to testify in rebuttal concerning a previous difficulty with the defendant because that testimony was not in rebuttal, was not connected with the homicide, and was prejudicial (citing authorities including State v. Palmer and State v. Swearengin).

Respondent's Arguments

The respondent argued that the Hayes testimony is not subject to review because the record does not show timely objections, motions to strike, or adequate assignment of error in the motion for new trial, citing several authorities supporting the procedural default rule.
The respondent further argued the evidence was proper as part of the surrounding facts of the crime (res gestae), showing the appellant's reckless and vicious humor and bearing on his plea of self-defense, citing multiple authorities and secondary material.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Mason, 322 Mo. 194, 14 S.W.2d 611	Cited for the proposition that the order of proof is within the trial court's discretion and evidence admitted out of order is not reversible error absent abuse of discretion.	The court relied on this authority to conclude it could not say the trial court abused its discretion in admitting Hayes's testimony out of order.
State v. Weiss, 219 S.W. 368	Also cited for the rule that order of proof is within trial court discretion.	The court cited it together with State v. Mason to support its conclusion on discretionary order of proof.
State v. Palmer, 220 S.W. 680, 281 Mo. 525	Cited for the rule that evidence of a previous altercation with a third person, when the deceased had no connection with that altercation, is inadmissible and its admission is reversible error.	The court applied this precedent to hold that the Hayes altercation was inadmissible and that its admission was reversible error.
State v. Swearengin, 190 S.W. 268, 269 Mo. 177	Cited for the proposition that testimony of a separate and disconnected difficulty (hours before the killing) is inadmissible.	The court relied on this case in concluding the Hayes incident was unrelated and its admission was erroneous.
30 Corpus Juris (30 C.J.), p. 197	Stated rule: evidence of prior difficulties between defendant and third persons with which the deceased had no connection and which were not part of the transaction in which the deceased was killed is inadmissible.	The court quoted this secondary authority to articulate the governing rule and applied it to the Hayes incident.
State v. Thomas and Swain, 68 Mo. 605	Cited regarding temporal disconnect: where substantial time elapses between prior occurrences and the homicide, those prior occurrences are not part of the homicidal transaction and are inadmissible.	The court cited this case to support the conclusion that the Hayes incident, occurring earlier and unconnected, was inadmissible.
State v. Williams, 87 S.W.2d 175	Cited by appellant in support of its objection to Instruction S-11 (self-defense instruction).	This authority was cited by counsel in briefing; the court's opinion does not rely on or analyze this specific authority in its reasoning.
State v. Creighton, 52 S.W.2d 556, 330 Mo. 1176	Cited by appellant in support of objection to Instruction S-11.	Cited in appellant's brief; the court did not specifically apply or analyze it in the opinion.
State v. Malone, 39 S.W.2d 794, 327 Mo. 1217	Cited by appellant in support of objection to Instruction S-11.	Cited by counsel; not specifically analyzed by the court in this opinion.
State v. Rennison, 276 S.W. 850, 306 Mo. 473	Cited by appellant regarding Instruction S-11.	Listed in appellant's authorities; the court did not expressly rely on it in its analysis.
State v. Creed, 252 S.W. 678, 299 Mo. 307	Cited by appellant regarding Instruction S-11.	Included in appellant's citations; not separately discussed by the court.
State v. Ball, 262 S.W. 1043	Cited by appellant regarding Instruction S-11.	Cited in appellant's brief; the court's opinion does not analyze it.
State v. Yates, 256 S.W. 809, 301 Mo. 255	Cited by appellant regarding Instruction S-11.	Cited by counsel; no specific application in the court's written analysis.
State v. Adkins, 225 S.W. 982, 284 Mo. 680	Cited by appellant regarding Instruction S-11.	Listed in appellant's authorities; not discussed in the opinion.
State v. Beckner, 91 S.W. 892, 194 Mo. 281	Cited by appellant as an authority under Instruction S-12 (self-defense instruction issue).	Cited in appellant's brief; the court did not base its disposition on this authority in the opinion.
State v. Swain, 68 Mo. 612	Cited by appellant among authorities objecting to Hayes testimony.	Referenced in appellant's list; the court did not specifically analyze this particular citation beyond the general rule concerning unrelated prior difficulties.
State v. Clayton, 13 S.W. 819, 100 Mo. 520, 18 Am. St. Rep. 565	Cited by appellant on the inadmissibility of unrelated prior difficulties.	Included in appellant's authorities; court relied on similar authorities but did not discuss this citation specifically.
State v. Crabtree, 20 S.W. 7, 111 Mo. 141	Cited by appellant on admission of unrelated prior difficulties.	Cited in the brief; not separately analyzed in the opinion.
State v. McCorkendale, 300 S.W. 819	Cited by respondent to support the proposition that failure to object or assign adequate grounds preserves no review.	The court noted the respondent's procedural-default contention (citing McCorkendale among others) but did not decide that issue because it reversed on the Hayes testimony ground.
State v. Catalino, 295 S.W. 570	Cited by respondent for the procedural-default rule (failure to object/motion to strike/motion for new trial).	Not relied upon as the basis of reversal; cited by respondent and noted by the court but the court reversed on evidentiary grounds instead.
State v. Kile, 253 S.W. 710	Cited by respondent for procedural-default authority.	Cited by respondent; the court did not base its disposition on this authority.
State v. Todd, 225 S.W. 910	Cited by respondent for procedural-default authority.	Cited by respondent; not the basis of the court's decision.
State v. McGuire, 39 S.W.2d 526	Cited by respondent for procedural-default authority.	Cited by respondent; the court reversed on other grounds.
State v. Batey, 62 S.W.2d 452	Cited by respondent for procedural-default authority.	Cited by respondent; not applied by the court to deny review.
State v. Miller, 17 S.W.2d 357	Cited by respondent for procedural-default authority.	Cited by respondent; court reversed on evidentiary grounds instead.
State v. Peters, 242 S.W. 897	Cited by respondent for the proposition that such evidence may be proper as part of the surrounding facts of the crime (res gestae).	The court noted the respondent's reliance on these authorities but ultimately found Hayes's testimony inadmissible under the rule against unrelated prior difficulties.
State v. Rudolph, 187 Mo. 85	Cited by respondent for support of the res gestae or surrounding facts argument.	Not adopted by the court to uphold admission; the court found the evidence inadmissible in this case.
30 Corpus Juris (30 C.J.), p. 195	Cited by respondent for the proposition that such evidence can be part of the surrounding facts of the crime.	The court quoted 30 C.J. p.197 (similar rule) and applied the general rule excluding unrelated prior difficulties; it did not adopt respondent's position as to admissibility here.
State v. Spaugh, 200 Mo. 594	Cited by respondent in support of admission as surrounding facts/res gestae.	Cited by respondent; the court reached the opposite result on admissibility in this case.
State v. Kennedy, 207 Mo. 539	Cited by respondent regarding surrounding facts/res gestae.	Cited by respondent; the court found the Hayes altercation inadmissible despite respondent's citations.
State v. Nelson, 166 Mo. 191	Cited by respondent on res gestae/surrounding facts.	Cited by respondent; court did not follow respondent's position for this testimony.
State v. Eaton, 292 S.W. 74	Cited by respondent for res gestae authority.	Cited by respondent; court concluded the Hayes incident was not part of the transaction and reversed.
State v. Kowertz, 324 Mo. 756	Cited by respondent for res gestae or related evidentiary principles.	Cited by respondent; the court nonetheless found the evidence inadmissible here.
State v. Daniels, 274 S.W. 28	Cited by respondent in support of the proposition that surrounding facts may be admissible.	Cited by respondent; not adopted as a basis to affirm in the court's decision.

Court's Reasoning and Analysis

The court divided its analysis into two principal parts.

On the procedural/order-of-proof point: the court acknowledged the general principle that the order of proof is within the trial court's discretion and that evidence admitted out of order is not reversible error unless the trial court abused that discretion. The court cited State v. Mason and State v. Weiss in support of that principle. After reviewing the record, the court stated it was "unable to say" the trial court abused its discretion in admitting Hayes's testimony out of order, and therefore rejected the appellant's contention that the admission was reversible on that ground.
On the substantive admissibility and prejudicial-error point: the court examined whether Hayes's testimony was admissible at all, noting Hayes's incident occurred prior to the dog incident, did not involve the deceased, and Hayes was not present at the killing. The court relied on authorities (including State v. Palmer and State v. Swearengin) holding that evidence of a previous difficulty between defendant and a third person with which the deceased had no connection and which was not part of the transaction in which the deceased was killed is inadmissible. The court quoted 30 Corpus Juris describing this rule and cited State v. Thomas and Swain regarding temporal disconnects that render prior occurrences inadmissible when they are not part of the homicidal transaction. Applying these principles to the facts, the court concluded the Hayes altercation was not connected with the killing, did not refer to the deceased, and therefore its admission was inadmissible and constituted reversible error.

The court also noted the State's contention that other points were not properly preserved in the motion for new trial; the court stated it was inclined to agree but declined to rule on those points because reversal was required for the evidentiary error.

Holding and Implications

Holding: The court ordered that the conviction be REVERSED AND REMANDED.

Implications: The immediate effect is that the appellant's conviction and sentence are vacated and the cause is remanded for a new trial. The court's decision rests on established authorities excluding evidence of prior altercations with third persons unconnected to the homicide; the opinion does not announce a new legal principle but applies existing authorities to find the Hayes testimony inadmissible and reversible error. The court declined to decide other preserved objections because reversal on this evidentiary ground required a new trial.

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THE STATE v. HARRY MADDOX, Appellant.

1. TRIALS: Rebuttal Evidence: Discretion of Court. The order of proof is within the discretion of the trial court and evidence admitted out of order is not reversible error unless it appears that the trial court abused its discretion.

And that applies to evidence offered by the State which defendant claimed was properly in rebuttal.

2. TRIALS: Murder: Other Difficulties. On the trial of defendant for murder evidence that the defendant had previously had an altercation with a witness, when the man afterwards killed was not present and the altercation had no connection with the killing, was reversible error.

TIPTON, P.J.

In the Circuit Court of Saline County, Missouri, the appellant was convicted of second degree murder and his punishment assessed at twenty-five years' imprisonment in the State penitentiary. From that judgment and sentence he has duly appealed to his court.

The appellant is a white man and the deceased, Lester Edward Thompson, was a negro. About eleven-thirty P.M., of July 22, 1934, the appellant and Abbott Cherry returned from Sedalia to Marshall, Missouri. They got out of an automobile on the square in Marshall and started in a northwesterly direction to their respective homes. In going to their homes they went through a negro settlement. While proceeding through this settlement a dog darted out at appellant and he kicked it. At this point, Evon Campbell, a negro, who had been sitting in the yard jumped up and started toward appellant and his companion and stated no one could kick his dog. After the negro and appellant called each other vile names, the negro went back into the yard and picked up a chair and after some more cursing he put the chair down and picked up a coca cola bottle (the appellant claims it was a gun) and marched behind the appellant and his companion for some distance calling them vile names. The negro returned to the house where the trouble started and the appellant and his companion went to their respective homes.

After the appellant arrived at his home he got his shotgun and returned to the vicinity where he had the difficulty in regard to the dog. He met the deceased and asked him who lived in the house where the dog incident occurred. The deceased stated, "I ain't telling you nothing," to which the appellant replied, "You damn niggers think you are smart." The deceased then cursed the appellant and after some cursing and scuffling the appellant shot the deceased and from the wounds of the shot he died the next day. The appellant pleaded self-defense.

The appellant assigns as error the admission of the testimony of Marvin Hayes offered in rebuttal on behalf of the State. This witness testified that between eleven-thirty and twelve o'clock on the night of the fatal shooting he saw the appellant some distance from the scene of the tragedy and had a difficulty with the appellant. The witness stated that the appellant said, "`God damn you, do you want to fight?' and I told him, `No, sir.' He made a pass at my head and I ducked the lick." This incident happened prior to the time the appellant got into the difficulty with Evon Campbell in regard to the appellant kicking the dog. Witness Hayes went on to his home and was not present at the time the deceased was shot, neither was deceased present at the time of this incident.

The appellant contends that this testimony is not in rebuttal and should not have been introduced to rebut the appellant's testimony. We have carefully searched the record and agree that this testimony did not rebut the testimony of the appellant. It is a well-recognized principle that the order of proof is within the discretion of the trial court, and evidence admitted out of order is not reversible error unless it appears that the trial court abused its discretion. [State v. Mason, 322 Mo. 194, 14 S.W.2d 611; State v. Weiss, 219 S.W. 368.] We are unable to say from the record that the trial court abused its discretion in admitting this testimony out of order and therefore rule this contention against the appellant.

The appellant next contends that the admission of this testimony was prejudicial error because the difficulty with the witness Hayes was prior to the altercation that the appellant had with the deceased, and had no connection whatever with the fatal shooting of the deceased. Witness Hayes was not present when the deceased was shot about an hour later.

In the case of State v. Palmer, 220 S.W. 680, 281 Mo. 525, the defendant had an altercation at a dance with some people by the name of Patton. On the way to his home the defendant met the deceased and in an altercation the deceased was killed. The deceased was not present during the altercation with the Pattons. We held that the admission of the testimony of the Patton altercation to be reversible error. In that case, after citing authorities, we said:

"These authorities expressly hold that `evidence of a previous difficulty between defendant and a third person with which deceased had no connection and which was not a part of the transaction in which deceased was killed is not admissible.'"

In the case of State v. Swearengin, 190 S.W. 268, 269 Mo. 177, the court permitted testimony that the defendant, approximately three hours before the killing, had an altercation with a girl by the name of Fitzgerald, during which altercation he slapped her. In reversing that case, we said: "Likewise, in our opinion, the learned trial court should have sustained the defendant's objection to the evidence offered by the State of defendant's altercation with the Fitzgerald girl. This occurred some three hours or more before the happening of the difficulty which culminated in the shooting of deceased. Upon no theory which occurs to us, nor upon any called to our attention, can the admission of the testimony of this separate and disconnected difficulty be justified."

The rule as stated in 30 Corpus Juris, 197, is as follows:

"Evidence of a difficulty or fight between deceased and defendant which occurred some time before the homicide and is not connected therewith or of a previous difficulty between defendant and a third person with which deceased had no connection, and which was not a part of the transaction in which deceased was killed, or of a difficulty between deceased or person assaulted and others than defendant having no connection with the fatal difficulty, or with which defendant is not shown to have had any connection, or of a difficulty between two third persons with which defendant is not shown to have been connected, is inadmissible."

In the case of State v. Thomas and Swain, 68 Mo. 605, l.c. 612, we said:

"Here, however, at least three-quarters of an hour elapsed between the time the party passed by Lisle's and that when the shots were fired which resulted in Marshall's death. We are, therefore, unable to see any connection in point of time between Marshall's death and the acts and declarations occurring prior to the time the party rode up in front of Heilig's house; hence, we hold evidence of such acts and declarations inadmissible, if offered as part and parcel of the homicidal transaction on the ground of relating to the main fact, and of being contemporary therewith. In other words, the principal fact was the killing of Marshall, and we do not conceive that the acts and declarations occurring at Lisle's, or prior to that time, so illustrate and characterize the main fact, as to constitute the whole matter one transaction, and render the admission of the prior occurrences necessary in order to exhibit that fact in its true light, and give to it its appropriate effect."

We therefore, hold that the altercation the appellant had with the witness Hayes, was inadmissible and its admission constitutes reversible error. Nothing that was said or done in that altercation in any way referred to deceased, nor was deceased present while it was going on. That altercation had no connection and was not a part of the transaction in which deceased was killed.

The State contends that the other points relied upon by the appellant in his brief are not properly before us because they were not sufficiently raised in his motion for a new trial. We are inclined to agree with the State, but as this case must be reversed for a new trial we will not determine that issue.

For the error in admitting the testimony of witness Hayes above referred to, this cause should be reversed and remanded for a new trial. It is so ordered. All concur.

STATE v. MADDOX