127 Mo. App. 653 | Mo. Ct. App. | 1908
On information of the prosecuting attorney, defendant was convicted before a justice of the peace for an offense defined in section 2212, Revised Statutes 1899. He appealed to the circuit court where he was tried, convicted and fined twenty-five dollars. The. information charged “that J. G. Landrum (the defendant), John Grady and Dave Malory on the 16th day . of June, 1906, at the said county of Howard did then and there unlawfully play at a game of chance commonly called poker for money, property and gain with a gambling device, to wit: a pack of cards used and adapted for the purpose of playing games of chance for money, property, and gain.”
It appears from the evidence introduced by the State that a policeman of Payette and a deputy constable, suspecting that a gambling game was being played in a room in an upper story of a certain building, were enabled by ascending to the roof of an adjoining building to look into the suspected room through a window. They saw the persons named in the information and two others, who were strangers to them, seated at a table playing a game in which cards and poker chips were being used. During the time they watched, no money was on the table nor was any passed among the players. Before the trial in the circuit court, one of the players (John Grady) pleaded guilty to the charge contained in the information and paid the fine assessed against him. He was introduced by the State as a witness against the other defendants, and' on his testimony the conviction was obtained. He testified, in substance, that the persons in the rooms were playing poker for money and that defendant acted as dealer in selling and redeeming the chips used by the other players. After he was sworn and before he tes
Thereupon, counsel for defendant objected to the witness on the ground “that at the time he was sentenced to the penitentiary and served his sentence he was under the law disqualified from testifying as a part of his sentence. And he had been convicted and served his sentence prior to the passage of the act of 1895 permitting parties who had been convicted of a felony to testify.” The objection was overruled and this action of the court is urged by defendant as a ground for the reversal of the judgment. In disposing of the questions thus arising, we shall assume for argument, without so deciding, that the evidence before us is competent to show that the witness was convicted in Indiana in 1878 of the crime of burglary and larceny, was sentenced to the penitentiary for a term of two years and served his sentence and, from this standpoint, the first question to arise is whether he would have been disqualified from testifying had his conviction and sentence occurred in this State instead of in Indiana. The law in force at that time relating to the subject is contained in section 66, chapter 201 of the General Statutes of Missouri of 1865, which is as follows:
“Every person who shall be convicted of arson, burglary, robbery or larceny, in any degree in this chapter specified, or who shall be sentenced to imprisonment in the penitentiary for any other crime punishable under the provisions in this chapter, shall be incompetent to be sworn as a witness or serve as a juror in any cause, and shall be forever disqualified from voting at any election, or from holding any office of honor, trust or profit within this State.”
But no sound reason has been given for holding that the conviction of the witness in Indiana of an offense against the criminal laws of that State should, of itself, disable him from testifying as a witness in the courts of this State. The record does not disclose whether the laws of Indiana deprived him of this right of citizenship, nor do we consider that fact material. An analysis of the provisions of section 66, chapter 201, of the General Statutes of Missouri, 1865, demonstrates beyond dispute that they were intended to apply only to convictions for offenses committed against the criminal laws of this State and not to those committed in other States of the Union or in foreign countries. And had it been made to appear that a similar statute existed in Indiana at the time the witness was convicted and sentenced, such statute should not be given effect beyond the territorial limits of that State. “The weight of modern opinion seems to be that personal disqualifications, arising not from the law of nature but from the positive laws of the country, especially such as are of a penal nature, are strictly territorial, and cannot be enforced in any country other than that in which they originated.” [Greenleaf on Evidence, sec. 376; Story, Conflict of Laws, secs. 92, 104;
As the penal statutes of the State of Indiana could not operate extraterritorially, and as no statute existed in this State in 1878 which disqualified a witness convicted in another State from testifying in our courts, it must follow that the witness in the case in hand at no time suffered under the disability now urged against him. What we have said sufficiently disposes of the question adversely to the contention of defendant and is sustained by authority. [Logan v. U. S., 144 U. S. 263, 36 Law Ed. 429; Commonwealth v. Green, 17 Mass. 515; National Trust Co. v. Gleason, 77 N. Y. 400; Railroad v. Johnson, 81 S. W. 4; Commonwealth v. Gorman, 99 Mass. 420.]
Further, objection is made by 'defendant to the action of the trial court in permitting the witness Grady to testify that defendant sold him and the other players the poker chips and was in charge of the room in which the gambling was being conducted. It is true, as argued, that these facts would tend to support a charge founded on a different section of the statute (section 2197), hut they also directly tended to sustain the charge that defendant was guilty of the offense defined
The judgment is affirmed.