Defendant, originally charged with second degree murder, was convicted of manslaughter, and the jury imposed a ten-year sentence.
Dеfendant asserts three points of error. The first two points question the propriety of the State’s eliciting the information that Cornelius Smith, who wаs separately charged, had pleaded guilty. Since this issue requires reversal, the third point relating to the prosecutor’s argument need not be noticed.
The sufficiency of the evidence is not questioned. The defendant and at least two other inmates beat to death an inmate named Barnett in a cell in the Jackson County Jail. The State established its case by inmate witnesses to the beating. After the State rested, the defendant testified in his own behalf. His testimony on direct was that a group of inmates met in his cell, discussed beating the victim, and went as a group to the victim’s cell. On direct examination, he had stated that an inmate named Barr had been among those going to the victim’s cеll and “fighting” the victim. When testifying on cross-examination as to the actual beating, he said he saw only Cornelius Smith and a Harvey Williams actually beаting the - victim but that Barr “could have been there.” Based upon that supposed discrepancy, the prosecutor sought to show that Cоrnelius Smith had entered a plea to a charge in connection with the death of the victim. The prosecutor indicated to the сourt that he wanted to show that Smith had pleaded guilty to “impeach” the defendant or, as it was stated to the trial court:
*723 . . it goes to his crеdibility, because he is just pushing the whole thing off on Harvey and Cornelius Smith. And he — if he knows that Cornelius has already pled guilty, that makes it easy for him to do.”
Defense counsel, when the question was put to the defendant in the presence of the jury, objected on the grounds of an inferencе of guilt by association and as prejudicing the defendant’s right to a separate trial. The objection was coupled with a request to strike and for a mistrial. The court denied this relief, but instructed the jury that the answer “is offered in connection with the credibility of this witness.”
The defendant’s testimony as to Barr was equivocal. On direct, he said Barr was among those who were “fighting” the victim; on cross-examination, he asserted he saw only Smith and an inmate named. Williams doing anything to the victim. In any event, whatever contradiction existed was before the jury. The inquiry as to the reason for the contradiction, if any, was not relevant to any issue in the case as the prosecutor conceded in the colloquy with the court.
It is well settled that the disposition of the case of another person charged with the same crime is not admissible in the trial of a codefendant. In
State v. Johnson,
“As stated in State v. Aubuchon (Mo.Sup.)381 S.W.2d 807 , 815-816, ‘[w]e have held that it is error to show in evidence or to tell the jury that a jointly accused defendant has been convicted or has pleaded guilty * * *. So, also, have we held that evidence of the acquittal of one jointly accused is improper * * * Were this not the law, the value of a defendant’s right to a separate trial * * might be considerably dissipated. The theory of our statute abolishing the distinction between principals and accessories * * * is that every defendant who joins in the commission of a crime is liable, on his own, as a principal; but he is also entitled to be tried on his own without having his guilt prejudged by what has happened to his co-defendant * * * ’.” State v. Johnson,456 S.W.2d at 4 .
In State v. Aubuchon, supra, there was presented evidence (through interrogation of a State’s witness) that a co-indictee of defendant was in the penitentiary and the implication was that he had been sent there for his participation in the crime for which defendant was being tried. The introduction of this evidence in Aubuchon was held to be error. The evidence had been introduced during the examination of the co-in-dictee’s sister. The court also rejected an argument that it was permissible within the “framework” of the evidence, the State arguing that the defense had shown in evidence the conviction of another brother for an apparently unrelated robbery аnd that the witness had been living with a man to whom she was not married:
“The argument that this evidence was material because it tended to show that Anna Mae Gore could no longer be seeking leniency for her brother, is too thin to outweigh the prejudicial effect of the evidenсe.” State v. Aubuchon,381 S.W.2d at 816 .
Other cases supporting the conclusion that the presentation to the jury of information concerning a confederatе’s conviction of the crime with which defendant is charged is prejudicial error are:
State v. Castino,
These Missouri cases are in accord with the general rule prevailing throughout the country.
See
Annot.,
The State cites three cases to justify the inquiry in the present case as constituting proper impeachment. First, as to
State v. Gordon,
The proof of the plea of guilty by Cornelius Smith cоuld only serve to prejudice the defendant by permitting the jury an improper inference of the guilt of defendant and impinging upon his right to a separate trial. The prosecutor hammered this home in his closing argument by referring to the proof of the Smith plea and the inconsistency of the defendant’s testimony.
The cause is reversed and remanded for a new trial.
All concur.