Opinion
No. 6916.
March 31, 1950.
APPEAL FROM THE LAWRENCE CIRCUIT COURT, THOMAS A. JOHNSON, J.
John O. Sanders, Cassville, for appellant.
Emory L. Melton, Cassville, Chas. E. Ginn, Aurora, for respondent.
Appellant was convicted of common assault in the Circuit Court of Lawrence County. The cause originated in Barry County, transferred, by change of venue, to the Magistrate's Court of Lawrence County, where the defendant was convicted, and appealed to the Circuit Court, and, from the judgment of the Circuit Court, appealed to this court.
The defendant's motion for new trial is as follows:
"Now comes the defendant and moves for a new trial in his cause for the following reasons:
"1. The verdict of guilty as rendered by the jury is contrary to, inconsistent with, and not supported by the testimony and is against the law under the evidence adduced in the cause.
"2. The court erred in not sustaining defendant's motion at the conclusion of all the evidence for a directed verdict in his behalf.
"3. The court erred in the admission of testimony as to the `truth and morality' of the defendant without first being duly qualified and further because there was no issue of morality raised in the case.
"4. The court erred in the admission of testimony as to matters which transpired long before and after the incident out of which grew the assault charge against defendant."
Assignments of error numbered 1, 2 and 4 in the motion for new trial, are insufficient to preserve the errors complained of. Section 4125, R.S.Mo. 1939, Mo.R.S.A., states the law thus: "The motion for a new trial shall be in writing and must set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds or causes therefor. * * *"
Defendant fails to comply with the law as set out in the Statute in these three assignments of error. The assignments are too general to present anything to this court for review. State v. Williams, Mo.App., 108 S.W.2d 177; State v. Reagan, Mo.Sup., 108 S.W.2d 391; State v. Courtney, 356 Mo. 531, 202 S.W.2d 72.
Defendant's assignment of error numbered 3, in his motion for new trial, complains of the admission of testimony as to the "truth and morality of the defendant when the defendant had not put his general reputation for morality in issue and that there was no such issue raised in the case.
We deem that this assignment of error properly preserves the question raised by the defendant.
It was admitted by the State, in its argument, that the defendant did not put his general reputation for morality in issue and that error was committed by the State unless it was waived by the defendant in the trial.
We here state such facts from the record as are necessary for the proper determination of this assignment of error.
The State offered in rebuttal witness, Ora Vanderpool, who gave the following testimony:
"Q. Are you acquainted with the defendant, Mr. Henry Sheets? A. Yes, sir. * * *
"Q. Are you acquainted with his general reputation for truth and morality in the community in which he lives?
"Mr. Sanders: If your Honor please, I object to this question and the answer it calls for on the ground that the defendant did not put the matter in issue in this case and the testimony can only be offered for the purpose of prejudicing the jury in favor of the State.
"The Court: Objection will be overruled."
To this testimony the defendant objected and saved his exceptions and the witness testified that his reputation was bad.
On re-direct examination the witness testified:
"Q. Can you tell of any other specific acts that you know this man has a reputation of having done that would indicate that his morals were bad? A. Yes, he had trouble with neighbors around there. * * *
"Q. What, if anything, do you know about his reputation for being a swearing man? A. I never heard him swear."
Objection was made to this testimony and, by the court, overruled and exceptions were saved.
The State insisted on pursuing the line of testimony about defendant's morality and asked the witness if he didn't hear about defendant chasing cattle over the precipice and catching young calves and killing them.
The State offered Everett Hall, in rebuttal, who testified on direct examination:
"Q. You are acquainted with the defendant in this case? A. Yes, sir.
"Mr. Melton: If the Court please, for clarification of the term `morality' would the Court care to define that term to the witness?
"The Court: No.
"Q. Everett, do you know the reputation that the defendant in this case, Henry Sheets, bears in the community where he lives for truth and morality?
"Mr. Sanders: I object to the question as applied to morality. It's not in issue in this case.
"The Court: Objection will be overruled.
"(To which action and ruling of the Court the defendant, through counsel, then and there duly excepted and still excepts.) * * *
"A. I heard he has not got a good regard. * * *
"Q. Did you ever hear the defendant in this case use any foul or vulgar language? A. Yes, sir.
"Q. You have heard him use terms you considered to be profane? A. Yes, sir."
These witnesses were permitted to be examined in regard to the defendant refusing to let the R. E. A. boys build a line on his property and that the defendant stopped them after they had dug holes and were setting the posts and a number of other things relative to the defendant being a preacher and killing somebody's dog, all of which testimony, under the law, is inadmissible and considered highly prejudicial to the rights of the defendant.
In State v. Ferguson, 353 Mo. 46, 182 S.W.2d 38, 42, the court makes the following statement of law: "Furthermore, we have repudiated the so-called `morality rule' when the defendant testifies but does not offer evidence in support of his reputation. In such instances the state may not attack the defendant's reputation or impeach him except as to his reputation for truth and veracity, as that reflects on his credibility as a witness. State v. Williams, 337 Mo. 884, 87 S.W.2d 175, 100 A.L.R. 1503; State v. Scott, 332 Mo. 255, 58 S.W.2d 275, 90 A.L.R. 860. Also, the defendant does not waive the state's assailment of his reputation for a trait not involved in the offense by offering rebuttal evidence of the same nature when he did not put the trait in issue in the first instance. State v. Beckner, 194 Mo. 281, 91 S.W. 892, 3 L.R.A., N.S., 535."
In State v. Williams, 337 Mo. 884, 87 S.W.2d 175, 184, 100 A.L.R. 1503, Judge Ellison, speaking for the Supreme Court, gives a full history of the law relating to introduction of general reputation for morality. Our courts had condemned the practise but had admitted such testimony up until the decision of this case in 1935, when the court repudiated all the former decisions in the following statement: "We therefore hold that State v. Clinton, 67 Mo. 380, 29 Am.Rep. 506, supra, State v. Scott, supra, and all the cases herein mentioned following the morality rule should no longer be followed — from which it results that the trial court committed error in admitting testimony of the appellant's bad general reputation for morality to impeach her as a witness."
We, therefore, hold that the trial court committed reversible error in permitting the State to offer rebuttal testimony of the general reputation of the defendant as to morality when the defendant had not put his reputation in issue and we further hold that, because the defendant cross-examined these witnesses, he did not waive his right to complain of such error in this appeal.
Judgment reversed and remanded.
VANDEVENTER, P. J., and BLAIR, J., concur.