Aрpellant was charged by information in the circuit court in the City of St. Louis, with burglary in the second degree and larceny. Upon a trial, he was convicted and his punishment assessed at four years in the Penitentiаry. From this judgment he appeals.
One Aaron Johnson, returning to his home one day, found appellant hiding behind a kitchen door in his residence. The wife of Johnson was outside of the house, scrubbing the steps during her husband’s temporary absence. Appellant ran out oü the house and attempted to escape, but was overtaken by Johnson and others, and was turned over to a police officer. Returning from the chase of the appellant, the John-sons found that the drawees of a dresser in their living room had been ransacked, and some jewelry taken therefrom.
Subsequently, Johnson was murdered. Appellant, who had been out on bail, was charged and tried for the killing of Johnson, and was convicted of murder in the second degree, but his sentence deferred, on account of the pendency оf the charge herein against him.
The errors assigned by appellant with which we are alone concerned, are as follows:
(1) That the State had no authority to convict and sentence appellant at one term, and defer his sentence until after his trial and conviction of another offense.
(3) That an instruction was erroneous which told the jury that if they believed any witness had willfully sworn falsely to any material fact, they were at liberty to disregard any or all of such witness’s testimony. These in their order.
I. Appellant’s first contention is based upon the assumption that the trial court excеeded its jurisdiction to try the appellant for any offense after his conviction for the murder until the term fiis imprisonment, as fixed by the jury for that offense, had expired. The jurisdiction of a trial court, in a criminal сase, is only finally terminated by the sentence of the defendant and the close of the term. The sentence of th'e appellant in the murder case having been deferred, the court’s jurisdiction was not impaired in that case, nor was it in any wise affected in the burglary case and his subsequent trial for the latter offense, and his sentence for each of the offenses in the order of hiss convictiоns was authorized. The eases cited by appellant are not contrary to this conclusion, in that they recognize the presence of jurisdiction in the absence of a sentence. [State v. Bell,
In confirmation of the correctness of this conclusion, we held in State v. Wear, 145 Mo. l. c. 164, that jurisdiction continues for all purposes until the case has been finally disposed of; and that such final disрosition only occurs when a sentence has been rendered which constitutes a judgment, and .the term has ended.
In State v. Schierhoff, 103 Mo. l. c. 50, we held that a court does not lose jurisdiction until final judgment. In this case., the judgment was rendered one' year after the rendition of the verdict.
II. Appellant’s second contention challenges the correctness of the ruling of the trial court in admitting in evidence the notes of the testimony of the deceased witness, Johnson. It is urged that appellant’s constitutional right to meet this witness face -f;0 faee wag deniеd (Sec. 22, Art. 2, Con. Mo.), and that the notes of this testimony were not authentic in not having been taken by an official stenographer, and in not having been certified to by the judge of the Court of Criminal Correction, bеfore whom the preliminary examination was held. The constitutional question has been settled adversely to appellant’s contention ever since the ruling of this court in the McO’Blenis case,
But the McO’Blenis case decides more thаn the constitutional question. It affirms the common law ruling (1 & 2 Phil. & M., c. 13 and 3 Phil. & M., c. 10'), • which has not been changed by statute, that (testimony taken as in the instant case may be admitted in evidence, the sole prerequisites to its. admission bеing, in the absence of any question as to its correctness, (1) a showing that the witness is then dead; (2) the presence at the time of the taking of the testimony
The limitation now sought to be added to the admission of such testimony that the stenographer taking same must h'ave an official character, and that the testimony when taken must be certified to by the judge before whom it was taken, finds no support in the reasons urged in the various cases in support of the admissibility of this character of testimony. In none of these cases, from that of McO’Blenis to State v. Butler, wаs any question raised as to the character of the stenographer, if one was employed to take the testimony. In fact, in a majority of these cases there is nothing from which it can be detеrmined how or in what manner the testimony was taken. An official stenographer, so-called, is a creature of modern creation. His power is limited to the taking and the transcribing of testimony. His official сharacter is nothing more than one of name. Any one possessing the requisite skill, is, while employed, clothed with equal authority. In nearly all of the cases in which this matter has been discussed, the preliminary еxaminations were held before committing magistrates, and in ruling upon the admission of the testimony the necessity of the certification of the magistrate has in no wise been considered. The fact that thе testimony was taken down and transcribed is only a requisite to the admissibily of such testimony in so far as it insures the possibility of greater correctness than the oral statement of a witness who heard the then deceased person testify. In State v. Able,
III. Appellant’s third contention is as to the instruction defining the power of the jury as tо the credibility of witnesses, or what is usually termed the failsus in uno, falsus in omnibus instruction. While there are cases in which the giving of in-g£rue^0Ils 0f character is of doubtful propriety, this in our opinion is not one of them. The general rule, however, in regard thereto being that the giving of such an instruction in the absence of evident prejudice to the accused, is to be left to the judgment and discretion of the trial court. [State v. Hickam, 95 Mo. l. c. 322.]
Therе being a basis in the evidence for the giving of the instruction in the instant case, its correctness is sustained by a long line of well considered cases. [State v. Hutchison, 186 S. W. (Mo. Sup.) l. c. 1001 and cases; State v. Swisher, 186 Mo. l. c. 7; State v. Beaucleigh, 92 Mo. l. c. 497; State v. Gee,
Thе civil case (Keeline v. Sealy, 257 Mo. l. c. 527), cited by appellant, will be found to be nothing more than the personal observations of the Commissioner who prepared the opinion in regard to instruсtions of the character here under review. These observations did not receive the approval of but two judges. Of the other judges, one did not sit, and Judge Geaves expressed in a separate opinion a conclusion adverse to that of the Commissioner. We are content, therefore, there being no error prejudicial to the appellant evident, to leave the propriety of the instruction where it now rests, in the determination of the trial court. We, therefore, overrule this contention.
Finding no error warranting a reversal, the judgment is affirmed.