166 Mo. App. 589 | Mo. Ct. App. | 1912
— The defendant was tried and convicted on a charge of violating the Local Option Law in force in Boone county. The information contained three counts. The defendant was convicted on the third count. Prom the judgment of the court defendant appealed.
On the trial the State introduced a negro man named Houston who testified that John Lawson gave him seventy-five cents with which to buy whiskey and ■ that he went to defendant’s place of business 'and bought from him a pint of whiskey for which he paid ■seventy-five cents. There is some evidence of a circumstantial nature tending to corroborate the evidence of Houston.
- On cross-examination Houston was questioned for the purpose of being impeached. He was questioned as follows:- “I will ask you if on February 11, 1910, you didn’t plead guilty to being drunk in Judge Stockton’s justice court?” “On February 28, 1910, didn’t you plead guilty before Justice Stockton to passing-whiskey into the jail?” “I will ask you if you were not convicted of disturbing the peace of Amanda ■Campbell the same month?” To each of these questions the State objected as. to its competency.- The court sustained the objections.
The jury failed to agree on the day the cause was submitted to them and they were permitted, with the consent of parties, to separate until the following •day. When the jury were called in the afternoon of Tuesday the judge, before he sent them to the room to consider further the case, addressed them as follows: ■“Gentlemen of the jury, before sending you to your room at this time to further consider your verdict, I think it would be proper for me to say that it is your •duty to deliberate together in a friendly manner and-, if it is possible for you to agree upon a verdict without violating your oaths and your consciences, that it is your duty to do so. Our criminal laws are admin
The defendant’s counsel objected to the foregoing remarks of the court.
The court was in error in refusing to allow the witness Houston to answer the various questions propounded to him. Section 6383, R. S. 1909, provides that “any person who has been convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved to affect his credibility,” etc. This section has been construed and it is held that the term, criminal offense, includes misdemeanors. [State v. Blitz, 171 Mo. 530; State v. Arnold, 206 Mo. l. c. 597; State v. Kennedy, 207 Mo. 528.] The court was also in error in the remarks the judge made to the jury. There was no necessity for the judge to tell the jury that unless they agreed in such cases the criminal law would not be administered. It is insisted by the counsel for the state that there is nothing in the remarks of the court that the jury did not already know. That is, perhaps, true. If so, what motive could the judge have had in making a useless statement? The jury evidently concluded that the judge would not.have used the language in question unless he meant something that was to be read between the lines. We do not wish to be understood as imputing any improper motive to the judge, but the address was unfortunate. The court had no right to address the jury as to their duty in the premises. The jury were to be guided by the written instructions. “To admonish them as to their duty, as was done, invaded
The judgment is reversed and the cause remanded.