| Mo. | Jun 27, 1893
— At the February term, 1892, of the circuit court of Morgan county the defendant, a negro, and one Fowler were convicted of burglary in the second degree under a joint indictment against them. Defendant Minor was granted a new trial, and upon.
On the trial of defendant the state was permitted, over his objection, to introduce as a witness against him, Jarrett Eowler, his accomplice, who had already been tried and convicted under the same indictment, and this is assigned as error. The contention is that Eowler, although tried and convicted, was still a party to the record and was therefore incompetent to testify against the defendant on trial. This precise question was passed upon by this court in the case of tbs State v. Jackson, 106 Mo. 174" court="Mo." date_filed="1891-04-15" href="https://app.midpage.ai/document/state-v-jackson-8010199?utm_source=webapp" opinion_id="8010199">106 Mo. 174, and it was there held that where one of two persons jointly indicted has pleaded guilty, he is competent to testify against the other defendant, and can do so without judgment having been rendered against him. There is no perceptible difference so far as the legal effect is concerned between a plea of guilty and conviction by jury. In the case of the State v. Jackson, supra, the court says: “We have no statute declaring a codefendant who had pleaded guilty or been convicted, a competent witness in behalf of the state, and we are relegated to the common law to determine Murray’s competency. Bishop lays down the correct rule thus: ‘Whereupon the law is, that a joint defendant cannot be a witness against the others, even on separate trial, till the case is disposed of as to him by a conviction or acquittal or by a nolle prosequi. But judgment on the conviction need not be rendered; therefore the defendant who is to testify pleads guilty, and then testifies.’ 1 Bishop on Criminal Procedure [3 Ed.], sec. 1166; Com. v. Smith, 12 Metc. 238; Wharton’s American Criminal Law, sec.
Defendant testified as a witness in his own behalf, and the state, over his objection, for the purpose of affecting the credibility of defendant as such witness, was allowed to read in evidence a certified copy from the records of the Cole county circuit court, showing his conviction in that court for assault with intent to commit rape. It is only when a defendant testifies as a witness that evidence can be introduced tending to show him unworthy of belief or impeaching his character as a witness. Not as the defendant, but as a witness. As a defendant, his character cannot be assailed, until he offers evidence for the purpose of showing it good, but an entirely different rule prevails when he testifies as a witness, as in such case, so far as impeaching him is concerned, and attacking his character for truth and veracity, the same rules of law apply to him, as to any other witness. State v. Nelson, 98 Mo. 414" court="Mo." date_filed="1889-04-15" href="https://app.midpage.ai/document/state-v-nelson-8009598?utm_source=webapp" opinion_id="8009598">98 Mo. 414, and authorities cited; State v. Taylor, 98 Mo. 240" court="Mo." date_filed="1889-04-15" href="https://app.midpage.ai/document/state-v-taylor-8009566?utm_source=webapp" opinion_id="8009566">98 Mo. 240.
A final contention is, that the court erred in giving the fifth instruction on behalf of the state, which, in effect, told the jury that they were at liberty to convict the defendant on the uncorroborated testimony of his accomplice, Fowler, alone, if they believed such testimony to be true. In connection with this instruction the court also instructed the jury ‘ ‘that the testimony of an accomplice in a crime, that is a person who actually, commits or participates in the crime, is admissible in evidence, yet the evidence of an accomplice in crime, when not corroborated by some person or persons not implicated in the crime as to matters material to the issues, that is matters connecting the defendant with the commission of the
Not only this, but the court, at the request of defendant, gave the jury, among others, the following instruction: “The jury are instructed that the evidence of Jarrett Fowler against the defendant, admitted in evidence by the court, unless corroborated by the evidence of others not implicated in the crime charged, ought to be received with great caution by the jury, and they should be fully satisfied of the truth, before they convict him on such evidence.”
The instructions, when taken as a whole, presented the case to the jury with absolute fairness, and the verdict is amply sustained by the evidence. The judgment is affirmed.