241 Mo. 271 | Mo. | 1912
— Appellant, Harry Conway, Bert Drinkwater and Will Kennedy were jointly charged by information in the criminal court of Greene county, at the April term, 1910, with the crimes of burglary and larceny, alleged to have been committed April 13, 1910. Appellant applied for and was granted a sever
The corpus delicti of each of the crimes charged was fully proven by undisputed testimony. The building burglarized and in which the larceny was committed was a saloon in the city of Springfield. It was shown by the testimony that on the night of April 12, 1910, a sum of between two hundred and three hundred dollars and a gold watch were deposited in the safe, and that the saloon was closed and the doors locked at midnight. At five o’clock the next morning it was learned that the saloon had been burglarized, the safe dynamited and the money and watch stolen. A few days after the burglary, Kennedy, coindictee of appellant, pawned a gold watch in said city, which was identified as the watch stolen from the saloon. During appellant’s trial the prosecuting attorney nolprossed the case against Kennedy, and thereupon he testified for the State that appellant gave bim the watch and that he pawned it at his request and under his directions. Witness Duke, with whom the watch was pawned, testified that appellant came to him and asked him for more money on a watch, after the watch in question had been pawned, but he further testified that appellant pawned a silver watch with him, on which he then owed appellant a dollar and a half, and that nothing was said by appellant inconsistent with the theory that he had in mind the silver watch and was asking for the balance due on it. There was testimony that appellant, shortly after the burglary, went to a saloon and exchanged ten dollars in silver for a ten-dollar bill, but the witness who testified to that fact said that appellant generally had money and that there was nothing unusual in seeing him with ten or
Appellant interposed a defense of alibi, and in support thereof it was shown that he was under arrest the night of the burglary, for the violation of a city ordinance, and was not released by the police until about two-thirty or three o’clock in the morning; that the police interviewed appellant’s mother, who agreed to pay his fine, and that he was then released. Appellant’s mother and sister testified "that appellant came home immediately after his release; that after talking awhile he went to -bed in a room adjoining theirs, having removed his shoes and hat in their room, as was his habit, and that he did not leave his room the remainder of the-night.
The appellant, evidently for the purpose, of accounting for the fact that he had ten dollars in his possession a few days after the burglary was committed, called a witness named Duncan, who testified that appellant was usually employed; that he had been employed in Kansas City for three or four years preceding the date of the offense. The prosecuting attorney, on cross-examination, asked the witness if he did not know that appellant was in the penitentiary during the time the witness had stated he was in Kansas City. The question was objected to and the objection was overruled, the court stating, “It is competent for the purpose of determining whether this witness knows he was in Kansas City.” The witness answered that he did not know how many times he had been in the penitentiary. When further asked if he knew he was in the penitentiary during the time about which he had testified, the witness said: “I don’t know whether he was ever in the penitentiary; I hear them say he was.” Appellant moved that the answer be stricken out and the motion was overruled. After the motion was overruled and the ruling excepted to, the
I. In the motion for a new trial complaint is made of the action of the court in overruling defendant ’s motion to quash the information. The motion to quash assailed the information as being vague and indefinite and as failing to charge the defendant with the commission of any offense. We have carefully examined the information, and it is in conformity with approved precedents. [State v. Watson, 141 Mo. 338; State v. Moss, 216 Mo. 436.]
II. Another complaint in the motion for a new trial was that the witness Kennedy should not have been permitted -to testify as a witness for the State because his name was not indorsed on the information. It has been repeatedly held by this court that it is not error to permit a witness, whose name is not indorsed on the indictment or information, to testify for the State. [Sec. 5097, R. S. 1909; State v. Steifel, 106 Mo. l. c. 133; State v. Henderson, 186 Mo. l. c. 482; State v. Myers, 198 Mo. l. c. 247.]
III. Objection was also made that Kennedy was not a competent witness against the defendant because he and defendant were jointly charged in the information with the offenses for which defendant was on trial. The defendant was being tried separately. During the trial a nolle prosequi was entered as to Kennedy. When the case was nol-prossed as to him he became a competent witness. [Sec. 5241, R. S. 1909; State v. Beaucleigh, 92 Mo. 490; State v. Walker, 98 Mo. 95; State v. Steifel, 106 Mo. 129.]
IV. Defendant’s instruction in the nature of a demurrer to the evidence was properly overruled. The evidence clearly showed that both the burglary and
Y. The refusal of the court to give two instructions on the subject of alibi, requested by the defendant, is also assigned as error in the motion for a new trial. The two instructions are set out in the record proper, but are not made a part of the bill of exceptions, and therefore the action of the court in refusing them is not before us for. review. [State v. Glasscock, 232 Mo. 291; State v. Little, 228 Mo. 273; State v. Earll, 225 Mo. 537; State v. Finley, 193 Mo. 202.]
YI. The objections interposed to the cross-examination of the witness Duncan, concerning appellant’s former imprisonment in the penitentiary, should have been sustained. .Appellant had not testified as a witness and had not introduced evidence of good character. As he had not injected such an issue into the case, it was not competent for the State to thus assail his character and reputation. When competent evidence is offered tending to show the commission of the offense charged, it is no objection thereto that such evidence also shows the accused to be guilty of another crime. But the question presented here is this: Is it proper to permit the State, on cross-examination of a witness for the defendant, when the character or reputation of the defendant is not in issue, to test the credibility of the witness as to a collateral matter about which he has testified, by asking him whether he does not know that the defendant was in the penitentiary on a given date? The question thus presented, so far as we have been able to find, has not been passed upon
In Bishop’s New Crim. Proc. vol. 1, sec. 1122, the author says: “Cross-examinations of witnesses, and evidence to discredit them, whereby irrelevant matters is sometimes not improperly brought out, will not be permitted a scope disclosing what tends to prove an irrelevant other crime; for this, under the pretense of justice, would be a wanton prejudice to the defendant. ’ ’
In the case of State v. Eder, 36 Wash. 482, the court had before it a question similar to the one now under consideration. In that case the wife of a defendant on trial, testifying as a witness in his behalf, stated in her direct examination that she and the defendant were married in the year 1898. On cross-examination, for the purpose of discrediting her testimony, she was asked if the defendant was not in the penitentiary in the year 1898. The court held that such cross-examination was improper and prejudicial to the defendant, and on that ground alone reversed and remanded the cause. In the opinion in that ease the court said: “While it is sometimes-stated that any circumstance which tends, in the remotest degree, to affect the credibility of a-witness can be shown on cross-examination of such witness, yet the rule is not without exception. The fact shown must have a tendency to accomplish the purpose intended, and must not be something which of itself tends directly to prejudice the defendant in the minds of the jury. A defendant can be prejudiced, of course, by showing that his witness is unworthy of belief, but the State cannot, under the guise of impeaching a witness show facts which tend directly to prejudice the defendant, but which only remotely, if at all, discredit the witness.”
The same limitation is placed upon the right of the State in the cross-examination of witnesses for the
In our opinion the doctrine announced in the f ore-going authorities is sound, and we hold that it was error to permit the prosecuting attorney to cross-examine the witness as to appellant’s former imprisonment.
Nor do we think the error was cured by the action of the court in striking out “what the witness heard” and telling the jury to disregard that part of the testimony. The defendant made timely objections to the questions. He also moved that the testimony be stricken out. Had the court sustained the motion and struck out all of the cross-examination relating to the former imprisonment, and told the jury that none- of it should be considered in arriving at their verdict, it would still be doubtful whether that would have removed from the minds of the jury the unfavorable impressions they had received of the defendant’s character and reputation, so as to cure the error. But when the court permitted the cross-examination over the defendant’s objections, and overruled the motion to strike the testimony out, the subsequent ruling by the court that what the witness had heiard would be stricken out and should not be considered by the jury, cannot be said to have cured the error. The language of the court necessarily implied, and the jury naturally understood, that a part of the testimony as to the former imprisonment of the defendant in the penitentiary remained in the case for- their consideration.
1 VII. The court, upon the request of the State, gave the following instruction:
“If you find and believe from the evidence in the case that the defendant, either alone or together with another or others, at any time within three years next before the llth of May, 1910, at the county of Greene and State of Missouri, did feloniously and burglariously break into and enter a building located at num*282 her 238 on West Commercial street in the city of Springfield, Greene county, Missouri, which, said building was then occupied as a saloon building by J. P. King, and in which said building there was at the time divers goods, wares, merchandise and valuable things kept and deposited, with intent then and there feloniously and burglariously to steal, take and carry away any .of said goods, wares, merchandise and valuable things in said building then and there being, and two hundred and ten dollars, in money, of the value of two hundred and ten dollars, and one gold watch and chain, of the value of thirty-five dollars, or any portion of said money or property of any value whatever, in said building then and there being, and the property of J. P. King, feloniously and burglariously did steal, take and carry away, then you will find the defendant guilty of both burglary and larceny, and for the burglary you will assess his punishment at imprisonment in the State penitentiary for as long a term as you may deem proper, not less than two years; and for the larceny you will assess his punishment, in addition to the punishment fixed for the burglary, at imprisonment in the State penitentiary for a term of not less than two nor more than five years.
“ ‘Feloniously’ means unlawfully, against the solemn admonitions of the law.”
Other'instructions were given which correctly instructed the jury as to the presumption of guilt of the burglary and larceny arising from the possession of property recently stolen, in connection with the other facts and circumstances in evidence. No instruction was given directing the jury that they might convict of the burglary and acquit of the larceny, or convict of the larceny and acquit of the burglary, accordingly as they should find and believe from the evidence, and the jury was left with an instruction that authorized only a conviction of both offenses or an acquittal of both. There are blank forms of verdicts found in the
No exception was saved at the time to the failure of the court to give such an instruction, or to the failure to instruct on all the law of the case, but one ground of the motion for a new trial was “because the court erred in failing to instruct the jury on the whole law governing the case.”
The record thus-fairly presents the question: Is the appellant entitled to a reversal of the judgment and to a. new trial on the ground that the court failed to instruct the jury on all questions of law “necessary for their information in giving their verdict?” It is the settled law of this State that although burglary and larceny may be joined in one indictment, as authorized by statutes, they are nevertheless separate and distinct felonies, and upon a trial the jury may convict or acquit of both or of either. ‘ ‘ That the jury could find the defendant guilty of burglary and fail to find him guilty of larceny, there can be no doubt, even thoiTgh the testimony abundantly established the larceny as well as the burglary.” [State v. Howard, 203 Mo. l. c. 604; State v. Kelsoe, 11 Mo. App. 91; Id., 76 Mo. 505; State v. Nicholas, 222 Mo. 425; State v. Lackey, 230 Mo. 707.] According to the foregoing authorities it was necessary for the information of the jury that they should have been instructed as to their authority under the law to convict of one felony and acquit of the other.
The further question arises as to whether the failure of the court to instruct the jury upon such
It is provided by section 5244, Revised Statutes 1909, that, “the court may instruct the jury in writing on any point of law arising in the cause, ” and by the next succeeding section that, “on the trial of any indictment or prosecution for a criminal offense, exceptions to any decisions of the court may be made in the same cases and manner provided by law in all civil cases. . . . ” These sections have long been a part of the criminal procedure of this State, and even before the enactment of the present statute upon the subject of instructing the jury in criminal cases, this court held that it was the duty of the trial court to instruct the jury on the essential elements of the crime charged, and that a failure so to do, whether requested or excepted to or not, was reversible error. [State v. Kilgore, 70 Mo. 546; State v. Branstetter, 65 Mo. 149; State v. Stonum, 62 Mo. 596; State v. Jones, 61 Mo. 232; State v. Matthews, 20 Mo. 55.] In so holding this court necessarily distinguished between civil and criminal cases, for in the former non-direction is not error. We think the distinction thus made is founded on sound reason. There is an inherent difference, so far as the necessity to instruct is concerned, between the two classes of cases. We shall not attempt to enumerate such differences, but we call attention to the following: In a civil case the jury have all the issues and the relief prayed for set forth in the pleadings, and therefore have information to enable them to act intelligently in returning a verdict, without instructions from the court. In a criminal case, although the jury is required by law to fix the punishment, even in capital cases, there is no guide or information available to them for that purpose and in the absence of instructions they would be left to grope in the dark. This fact is referred to in the case of State v. Nicholas, 222 Mo. 425. In civil cases the interests of the oppos
By that statute (Sec. 5231, R. S. 1909), it is provided that: “Whether requested or not the court must instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict; which instructions shall include, whenever necessary, the subjects of good character and reasonable doubt; and a failure to so instruct in cases of felony shall be good cause, when the defendant is found guilty, for setting aside the verdict of the jury and granting a new trial.”
Notwithstanding the apparently mandatory character of . the language of the statute it is maintained, and in a number of cases it has been held, that non-direction of the jury upon the law in a criminal case is not error which will warrant a new trial unless it affirmatively appears that the court’s attention was called to the question on which an instruction was desired and an exception saved at the time to the court’s
The construction of the statute as to the necessity of a request for the instruction desired and an exception at the time to the court’s failure to give it, was first announced, and without referring to the'statute, in the case'of State v. Bond, 191 Mo. 555. That case was followed by this court in a number of later cases. But this court has always held, even while following the doctrine of the Bond case, that if an erroneous instruction was requested by a defendant, then it became the duty of the court to give a correct instruction upon that question, and no exception for failure to do so was necessary in order to preserve the court’s action as a ground for new trial and for review on appeal. [State v. Matthews, 20 Mo. 55; State v. Jones, 61 Mo. 232; State v. Stonum, 62 Mo. 596; State v. Lowe, 93 Mo. 547; State v. Davis, 141 Mo. 522; State v. Adler, 146 Mo. 18; State v. Brinkley, 146 Mo. 37; State v. Clark, 147 Mo. 20; State v. Reed, 154 Mo. 122; State v. Fannon, 158 Mo. 149; State v. Moore, 160 Mo. 443; State v. Barton, 214 Mo. 316.] That rule is clearly a departure from the law of exceptions in civil cases, and to ■ that extent gives effect to the statute making it the duty of the court to instruct in criminal cases.
In the case of State v. Nicholas, 222 Mo. 425, the court did not follow the Bond case. Answering the
The doctrine of the Nicholas case was reaffirmed in the case of State v. Lackey, 230 Mo. 707, in an opinion by the writer, concurred in by Gantt and Burgess, JJ.; also in the cases of State v. Hoag, 232 Mo. 308, in an opinion by Brown, J., and State v. Harris, 232 Mo. 317, in an opinion by Ferriss, J., in both of which the full court concurred. The same construction is also supported by the following cases: State v. Banks, 73 Mo. 592; State v. Palmer, 88 Mo. 568; State v. Henson, 106 Mo. 66; State v. Hutchinson, 111 Mo. 357; State v. Maguire, 113 Mo. 670; State v. Nelson, 118 Mo. 124; State v. Taylor, 118 Mo. 153; State v. Rufus, 149 Mo. 406.
In view of these decisions it would seem that the law, at least as to whether a request and exception are necessary to save the point as ground for a new trial, should be considered as settled, but because of some new points of attack upon these recent decisions, a few additional observations will be added.
No State, except the States of Kansas and Texas, has a statute even substantially similar to that under' review, and therefore general law can aid but little in its construction. Our statute was taken almost verbatim from the laws of Kansas. Since its enactment in 1879 it has been made more mandatory in its evident purpose to guard the rights of the accused, by amendment from time to time, while the Kansas law has remained unchanged. When our statute was adopted the Supreme Court of Kansas had construed their law in
It is established law that when a statute of another State is adopted by the Legislature, the construction placed on the statute prior to its adoption governs.
In the recent case of State v. Winters, 81 Kan. 414, the same court concluded an extensive review of its former decisions upon the subject as follows:
“These cases are sufficient to illustrate the limitations upon the compulsory aspect of the statute which have been recognized since Craft’s case was decided, in April, 1866. Prom all the decisions noted it may be concluded that the statute means what it says and should be followed, but that a duty rests on counsel for the defendant to aid and not to ambush the court, and consequently instructions- should be requested covering all lesser degrees or lesser crimes involved in the main charge which the defendant desires to be considered. A request sufficient to direct the mind of the court to the subject is enough. Good instructions need not be offered, or a good theory for them formulated; and the evidence itself may point so plainly to the necessity for such instructions that no request is necessary. Generally, however, a failure to make the request waives error in failing to instruct, and, generally, error in failing to instruct or in giving wrong instructions upon lesser degrees or offenses works no prejudice when the defendant is convicted upon satisfying evidence of a higher charge, under correct instructions’ relating to it. Should it appear that if omitted instructions duly requested or clearly*289 required by tbe evidence bad been given tbe jury might naturally and probably have convicted of a lesser degree or offense, the omission will constitute prejudicial error.”
It should be noted that section 5245, Revised Statutes 1909, providing that all exceptions in criminal cases shall be goverened by the law applicable in civil cases, is identical with sections 6798 of the G-eneral Statutes of Kansas of 1909.
The law of Texas is also in substantial agreement with our law upon the subject of the duty of the court to instruct the jury, except that in a subsequent section (Art. 743, T. 8, Tex. R. C. S. 1911) it is provided that, “whenever it appears by the record in any criminal action, upon appeal of the defendant, that any of the requirements of the eight preceding articles have been disregarded, the judgment shall not be reversed; unless the error . . . 'shall be excepted to at the time of the trial.” The article making it the duty of the court to instruct the jury is one of the eight referred to.’ And article 744, T. 8, provides that exceptions in criminal cases shall be governed by the provisions of the law of exceptions in civil cases.
It is unnecessary to do more than refer to the fact that the Texas law, although containing a provision similar to that found in our law, making the civil code as to exceptions applicable to criminal cases, yet added an express requirement in criminal cases that error must be excepted to at the time to be available on appeal, a requirement not found in our law. But even with that requirement the failure of the court to instruct-will in certain cases be considered when raised for the first time in the motion for' new trial, or even in the appellate court. [See cases cited, Texas Code of Crim. Proc., 1900, p. 242, note 1.]
One provision of our statute to which attention has not been directed in the many cases involving its con
We are aware that a number of cases can be cited that are in conflict with the views herein expressed, and also others in support of such views. Space forbids that we should attempt a full review of such cases. It is sufficient to say that the language of the statute, the facts in connection with the history of the amendments thereto, the construction placed upon the law by the courts of the State from which it was taken, and the imperative necessity, in the interest of justice, that the jury in a criminal case should be instructed as to the law, fully satisfy us as to the correctness of the
The question remains, was the point properly made a ground of the motion for a new trial? The thirteenth ground of the motion was: “Because the court erred in failing to instruct the jury upon the whole law governing the case.” In the consideration of this question we must not overlook the language of the statute which bases the right to a new trial upon a failure to instruct the jury on all questions of law arising in the case “which are necessary for their information in giving their verdict.” That language, .fairly construed, does not mean that the court shall instruct upon any and every question, but only upon such as are necessary and essential to intelligent action by the jury in the trial of the case before them.
Ordinarily technical detail is not required in stating the grounds of the motion for a new trial. But the purpose of the motion generally, not always, is to bring before the court for review rulings made during the trial and to which specific objections were made at the time. However, in the case of alleged error for failure to give necessary instructions, the complaint is because of the non-action of the court, and when such failure is made a ground of the motion for a new trial, we think it is not an unreasonable construction of the statute to hold that the defendant should call the court’s attention to the question of law on which it is claimed the court failed to instruct.. The court is then given an opportunity to grant a new trial, if the complaint is well founded, without the delay or expense incident to an appeal. This rule does not work a hardship on the defendant, for it gives him the full time allowed for filing the motion to formulate his complaint. It is not only fair to the trial court, but in case of an adverse ruling on the motion, the record on ap
Notwithstanding the foregoing rule, if satisfied from the record that there has been a failure to instruct the jury upon a-question which goes to the fundamental rights of the defendant, and that by such failure injustice may have been done or a verdict returned different than if such failure had not occurred, this court, in the interest of justice, will not hestitate to grant a new trial, though the question should be presented here for the first time.
This case is one which we think falls under the exception to the rule. Although the statute authorized the joining of both felonies in one count of the information and the trial of the defendant for both at the same time, he still had the right to have the jury pass separately upon his "guilt or innocence of each offense. This right, of vital importance under the law, was denied to him by the instructions, and for that reason, as well as for the error discussed under point 6, we hold that the judgment should be reversed and the cause remanded. It is so ordered.