
    The State v. Harry Maddox, Appellant.
    98 S. W. (2d) 535.
    Division Two,
    November 17, 1936.
    
      A. Lamhin James and Louis J. Basse for appellant.
    
      
      Boy McKittrick, Attorney General, and Brake Watson, Assistant Attorney General, for respondent.
   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 be kicked it. At this point, Evon Campbell, a negro, wbo bad been sitting in tbe yard jumped up and started toward appellant and bis companion and stated no one could kick bis dog. After tbe negro and appellant called eaeb other vile names, tbe negro went back into the yard and picked up a chair and after some more cursing be put tbe chair down and picked up a coca cola bottle (tbe appellant claims it was a gun) and marched behind tbe appellant and bis companion for some distance calling them vile names. Tbe negro returned to tbe bouse where the trouble started and tbe appellant and bis companion went to their respective homes.

After tbe appellant arrived at bis home be got bis shotgun and returned to tbe vicinity where be bad tbe difficulty in regard to tbe dog. He met tbe deceased and asked him wbo lived in tbe bouse where tbe dog incident occurred. Tbe deceased stated, “I ain’t telling you nothing,” to which tbe appellant replied, “You damn niggers think you are smart. ’ ’ Tbe deceased then cursed tbe appellant and after, some cursing and scuffling tbe appellant shot tbe deceased and from tbe wounds of tbe shot be died tbe next day. The appellant pleaded self-defense.

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

The appellant contends that this testimony is not in rebuttal and should not have been introduced to rebut tbe appellant’s testimony. We have carefully searched tbe record and agree that this testimony did not rebut tbe testimony of tbe appellant. It is a well-recognized principle that tbe order of proof is within tbe discretion of tbe trial court, and evidence admitted out of order is not reversible error unless it appears that tbe 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 tbe trial court abused its discretion in admitting this testimony out of order and therefore rule this contention against tbe appellant.

Tbe appellant next contends that the admission of this testimony was prejudicial error because tbe difficulty with tbe witness Hayes was prior to tbe altercation that the appellant bad with tbe deceased, arid bad no connection whatever with tbe 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 1 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.  