605 S.W.2d 203 | Mo. Ct. App. | 1980
A jury found defendant David F. Dobbs guilty of second degree robbery and fixed his punishment at imprisonment for eight years. Defendant appeals from the ensuing judgment.
Defendant’s sole point on appeal is that the court erroneously denied his pre-trial motion to exclude evidence he had twice previously been convicted of felonious stealing. Those two convictions were shown on cross-examination of defendant.
The evidence shows: Defendant was a passenger in the victim’s cab. When it arrived at the ordered destination defendant held a “silver object” at the driver’s head and demanded and took money, a watch and a lighter. At defendant’s command the driver walked away from his cab. Defendant testified he was drunk and substantially admitted the victim’s testimony was true except as to the use of the “silver object”. Defendant does not challenge the sufficiency of the state’s evidence and we find it sufficient.
Defendant now urges us to change the law concerning the admissibility-for impeachment purposes-of evidence of a defendant’s conviction of previous crimes. He cites decisions from other states and federal courts which limit the use of such evidence.
We note parenthetically the original common law disqualification of any witness who had been convicted of a crime; this on the ground his conviction rendered him unworthy of belief.
Two statutes have long since modified that common law rule. Section 546.260, RSMo. 1978 (originally Law of 1877, p. 356) declares a defendant shall not be incompetent to testify in his own behalf but if he does so he may be impeached as any other witness. Section 491.050 RSMo. 1978 (originally Section 4680 RSMo. 1899) declares a person previously convicted of a crime is a competent witness, but his conviction may be shown to affect his credibility.
Defendant’s constitutional challenge to the two statutes has twice been specifically denied. State v. Graves, 182 S.W.2d 46[10] (Mo.1944) held since the two cited statutes “permit him to be impeached by proof of former convictions the same as any other witness, the Constitution will not shield him against it”. Again, in State v. Swisher, 260 S.W.2d 6 (Mo. banc 1953), the court ruled: “a defendant, by voluntarily making himself a witness under the privileges of Section 491.050 abolishing his common law incompetency, waives the protection given him under Art. I, Section 19 of the Missouri Constitution and Amendment 14 of the Constitution of the United States and subjects himself to the perils of being cross-examined to the extent authorized by law.”
Our supreme court has uniformly upheld the statutes defendant now challenges.
Judgment affirmed.
. State v. Morton, 338 S.W.2d 858[2] (Mo.1960); State v. Wolfe, 343 S.W.2d 10[5, 6] (Mo. banc 1961); State v. Washington, 383 S.W.2d 518[8-10] (Mo.1964); State v. Byrth, 395 S.W.2d 133[2-4] (Mo.1965); State v. Morris, 460 S.W.2d 624[3] (Mo.1970).