278 Mo. 333 | Mo. | 1919
The defendant was tried and convicted on an information charging him and one Joseph Keller with the crime of grand larceny. Keller, his co-defendant, was arraigned and pleaded not guilty. He afterwards withdrew his plea of not guilty and entered a plea of guilty. Thereafter Keller filed some sort of motion for new trial; which was pending at the time the defendant Reppley was brought to trial. Keller was a witness for the State against Reppley and the ruling of the trial court in permitting him to testify is assigned as error.
■ The defendants were charged with stealing two automobile tires from the car of Judge George Williams on the evening of September 3, 1917. On that evening Judge Williams drove to the Bevo Mills and left his car, a Packard, in charge of his chauffeur, Frank Wesley. He had two extra Goodyear Cord tires, mounted on steel rims and enclosed in leather cases, on the back of his car. These tires with casings, rims and inner tubes were valued at $221. The chauffeur parked the car on the south side of the street and remained in the car, after Judge Williams had stepped out, for some time, and then crossed the street, where he stood a few minutes, when some unknown man called his attention to his car. He ran hastily back .and found another car driving away, but not before he recognized the State license number, 101681. The tires mentioned had been
I. The evidence was entirely insufficient to warrant a verdict of guilty against the defendant except for the testimony of Keller. Counsel for defendant vigorously assert that the court committed error in permitting Keller to testify, on the ground that he was a co-defendant with Reppley. The authorities are uniform
Appellant in this case while admitting that the rule obtains here as stated, argues that Keller’s case was not disposed of in such way that he had nothing to. hope for or to gain through testifying against his codefendant. It is argued that although Keller had pleaded guilty, he had afterwards filed a motion for new trial, which was pending at the time he testified, and he was at liberty on bail; that therefore his case was undisposed of and the whole bodv of the case remained for determination against him. Under the law, it is urged he had a right to withdraw his plea of guilty, at any time before sentence and elect to submit his case to trial, and his motion for new trial is equivalent to an election to withdraw his plea of guilty.
The files were introduced showing that the defendants were jointly informed against for grand larceny, and the record of the circuit court was offered showing the plea of guilty of Joseph Keller; defendant also separately offered Keller’s motion for new trial and proof to show that the motion for new trial in that case was still pending at the time the witness was called
A defendant who pleads guilty to a charge in an information does not thereby necessarily confess guilt of the crime it is sought to charge against him; it only means he confesses the truth of the facts stated in the information. He may follow his motion for new trial in such case, appeal, or sue out a writ of error, on the ground that the information or indictment charges no offense. [State v. Rosenblatt, 185 Mo. l. c. 119; State v. Kelley, 206 Mo. l. c. 693.] The fact" that Keller had filed a motion for new trial in the case in which he pleaded guilty would not indicate that he was attacking anything but the form of the information on which he was arrested. The trial court is presumed to have acted regularly. If Keller had presented his application to withdraw his plea of guilty so that he might plead not guilty, the record would show that, but it shows nothing of the kind;
At most it stands on the same footing as a motion for new trial would stand after a conviction. A witness is permitted to testify against his codefendant immediately after conviction and before time to file a motion for new trial is expired. [State v. Peters, 258 Mo. 334, l. c. 342.] While a defendant still has time in which to file a motion for a new trial his case is in the same position, so far as its final disposition is concerned, as that of a defendant whose motion has been filed. It has been held that the pendency of a motion for a new trial by an accomplice who has been convicted does not prevent
Por these reasons the court did not err in permitting Keller to testify.
II. Appellant complains of instructions given to the jury. Instruction numbered 1 is as follows:
\ . x struction. “It is the duty of the court to instruct you on all questions of law arising in this case, and it is your -duty to receive such instructions as the ]aw 0£ pjie caSG) anf] to find the defendant guilty or not guilty according to the law as declared by the court and the evidence as you have received it under the direction of the court.
“All persons are equally guilty who act together in the commission of a crime, and a crime so committed by one or more persons jointly, is the act of each and all so acting.
“First, If, upon consideration of all the evidence in the case, in the light of the court’s instructions, you believe and find from the evidence that at the .City of St. Louis, Missouri, on the 3rd day of September, 1917, or at any time within three years next before the filing of the information herein, the defendants either acting alone or with one another, did wrongfully take and carry away two automobile tires, including casings, inner tubes and rims, of the value of one hundred and fifteen dollars, from the possession of George Williams, with the intent to fraudulently convert the same to their own use, and permanently deprive the owner thereof,*341 without his consent, and that the automobile tires, tubes and rims were the property of the said George Williams, and'of the value of thirty dollars or more, you will find the defendant guilty of grand larceny and assess his punishment at imprisonment in the Penitentiary for not less than two years, ■ nor more than five; and unless you so believe and find from the evidence, you wijl acquit the defendant of grand larceny.”
It' is contended that this instruction authorizes a verdict of guilty if either of defendants committed the' theft. That is, Reppley could be found guilty if Keller alone stole the tires. The instruction is not open to that objection. Grammatically it is entirely clear and correct in requiring the jury to find “the defendants . . . did wrongfully take and carry away . . . with intent to fraudulently convert the same to their own use.” That is,- both defendants must have participated in the offense before the appellant could be found guilty, although the physical act of detaching the tire from its moorings .on the car was performed by one man alone.
It is not likely that the jury could possibly misunderstand the effect of the instruction because the first part of the instruction directs their attention to the fact that the court instructs them ‘ ‘ on all questions of law” arising in the case. It then directs them that “all persons are equally guilty who act together in the commission. of a crime, and a crime so committed by one or more persons jointly is the act of each and all so acting.” The jury could not have understood that the defendant was guilty unless he participated in the theft, although he himself did not take manual possession of the articles stolen. Juries are'supposed to exercise and do exercise ordinary intelligence in considering instructions and the facts of the case as presented. [State v. Taylor, 134 Mo. 109, l. c.. 151.]
The second instruction is also objected to. It describes what is necessary in the commission of the crime
The jury is further enlightened about the matter by instruction numbered 3 which tells them that when the offense is actually committed by one person and another person is present and knows the willful intent, and aids, abets and encourages the person engaged in the unlawful act, such person so encouraging is equally guilty with the person actually committing the larceny. These instructions must be read together and taken together. They correctly state the law and are not likely to mislead, although they may be longer and more explicit than approved instructions in cases cited by appellant. [State v. Kinder, 184 Mo. l. c. 295; State v. Bobbitt, 242 Mo. l. c. 284-5.]
A prosecutor is out of order when he expresses his belief in the guilt of a defendant on trial. And
It is evident from- the remarks the prosecuting attorney made that the witness Keller had been violently attacked by the defense. Apparently it had been charged that he was testifying with the knowledge that his testimony would mitigate his own punishment. What else was said by defendant’s counsel in disparagement of the witness does not appear in the record. But the effect of the argument was to bring this indignant protest of the prosecutor in defense of the witness. He does not indicate to the jury that he had information or that he based his opinion on Keller’s veracity'from anything outside the record. On the contrary, he asserts his faith in Keller’s truthfulness, because he had no reason to think “his testimony did not ring true in every repect,” referring directly to the testimony offered by the witness and his conclusion from it.
The foregoing opinion by White, C., is adopted as the opinion of the court.