124 Mo. 531 | Mo. | 1894
This appeal is the result of the defendant being tried on the charge of manslaughter in the fourth degree, resulting in his punishment being assessed at a fine of $500. He was indicted with three others, Arthur E. Furber being one of his co-indictees, and Seth 0. Wilkins being the victim of the crime, a brutal assault, during which Wilkins was so struck by one of a party, of four men, who were pursuing him, that he fell in the street, and died in two days thereafter. It does not appear Wilkins resisted or attempted to resist the assault. • The defendants applied for a severance, and a separate trial was granted each of them. The state elected to try defendant Qesell first, and so proceeded with his trial—resulting as aforesaid.
Before these proceedings, however, the court, at the instance of the circuit attorney, ordered the exclusion of all the witnesses from the court room, as well those for the state as for the defendant, and proclamation to that effect, under the direction of the
The bill of exceptions sets forth: “The state, to sustain the issues on its part, offered evidence to prove the defendant guilty, as charged.” The testimony of but one witness is preserved, to wit: of one Emina Glazebrook, who testified for the state as an eyewitness of the alleged assault, and identified the defendant as one of the assaulting.party. Upon cross-examination, for the declared purpose of impeaching -her credibility, she was asked by the defendant’s counsel where she was born, and upon her answering that she did not know, was further asked: “Where were you when yon first remember where you were?” An objection to which by the state was sustained. She was also asked, in succession, where she went to school, to whom she was married in Springfield, if she did not go by the name of Miller, if she did not live with a man by the name of Miller, if she was married in Springfield, what name she went under in Springfield before coming to St. Louis, if she did not live with a man by the name of Miller in Springfield as his wife, whether she was not married and living with her husband, and whether Mr. Glazebrook was dead or alive. The state objected to all of these questions as wholly immaterial, and the court sustained the objections.
The bill further recites: “The defendant, to sustain the issue, on his part, offered evidence tending
“Mr. Goocle: ‘Mr. Furber, be sworn.’
“Mr. Bishop: ‘I object to his being examined. He was in the court room all the time, and an order was made excluding the witnesses.’
“The Court: ‘Yes.’
“Mr. Goode: ‘I did not think that applied to the defendant.’
“Mr. Bishop: ‘He is not a defendant in this case we are trying, and I asked the court to make that order.’
“Mr. Goode: ‘Well, then, your Honor, I except to the court’s ruling and the defense is through,’ ” etc.
No objection is taken to the validity of the second count of the indictment, on which the defendant was tried, nor to the instructions. The only points presented in this court for consideration are* two, which will now be discussed i'n the order as they arise in the bill of exceptions.
I. There was no error committed in refusing counsel for defendant to interrogate Glazebrook in the manner attempted. This action of the court may well be made to rest on two grounds:
In the first place the credit of a witness can not be impeached by inquiry into specific past delinquencies, but only by facts which go to show what the general moral character or reputation therefor are, and what the general moral character or reputation for truth and veracity. In the second place it will not be allowed in a court of justice to put a witness on the rack as to past transactions, to rake in the ashes of long forgotten scandals, and to uncover the scars of old wounds in
II. The next point to consider is whether the court erred in rejecting Furber as a witness. The authorities are in hopeless conflict as to whether a court can absolutely reject the testimony of a contumacious witness, who has disobeyed its order of sequestration. The point has been decided both ways in this state, one case holding that it is in the discretion of the trial court whether the testimony of the recalcitrant witness shall be admitted (State v. Fitzsimmons, 30 Mo. 237), the others that the trial court in this, and outside of certain exceptions, has no such discretion and must admit the refractory witness to testify. Keith v. Wilson, 6 Mo. 435; O’Bryan v. Allen, 95 Mo. 68. These last mentioned cases assert the better doctrine. 1 Wharton’s Law of Evid. [3 Ed.], sec. 491 and cas. cit.; 2 Phillips on Evid.; Oowen & Hill’s notes, 887; 2 Best on Evid., Morgan’s notes, sec. 636; 1 Bishop on Grim. Proc., sec. 1191.
If the party who desires the testimony of the disobedient witness, has uparticipated in his disobedience” (1 Bishop on Grim. Proc., sec. 1191) or has been guilty of u connivance” at the fault of the witness (Keith v. Wilson, supra), that is to say, has been guilty of “voluntary oversight” or “passive consent” (Webster’s Internat. Diet.), while the witness by his presence was violating the rule, all the. authorities agree he should not be allowed to testify.
In the present instance we think the record shows such evidence of participation in the disobedience of the witness, such a conniving at his presence in the court room, as to warrant the ruling of the lower court, whose judgment we now affirm.
