— In аn indictment preferred by the grand jury of Jackson County in June, 1920, the defendant was charged under Section 3307, Revised Statutes 1919, with robbery in the first degree. Upon a trial he was convicted and sentenced to fifty years in the penitentiary. From that judgment, this appeal is perfected.
At the beginning of the trial the defendant asked a continuance, based, in part, upon the fact that one Roy Wilson, who had been tried and convicted for participation in the crime, had, upon a separate trial, received a sentence of fifty years’ imprisonment in the penitentiary, and because the trial panel in defendant’s case had been present at the hearing of a robbery case just finished which had been submitted to a jury and was then under consideration. The court, overruling this application, found the facts as stated therein not to be true, аnd that there was no one on the trial jury that had hoard either of the cases referred to, and that there was no evidence of prejudice in the community against defendant.
The facts are as follows: In January, 1920, an employee of a millinery house in Kansas City was on his way from a bank with cash in the sum of more than three thousand dollars to meet the payroll of his employers for that week. He was attacked by two mеn at Tenth and Broadway, who assaulted him and compelled *215 him to turn the money over to them. Upon the crime having been consummated, they mounted a waiting’ automobile and started away at a high rate of speed. A motorcycle policeman, a short time thereafter, saw an automobile in which there were three men rapidly turn the corner of Admiral and McGee streets. The speed at which the car was bеing run probably attracted his attention and he turned and followed it. From time to time he signaled the driver of the car to stop, who, instead of doing so, increased his speed. Between Fifteenth and Sixteenth streets, however, the officer pulled up along side the car, the driver of which was subsequently identified by this policeman as the defendant. Just as this occurred, the car collided with another car and the impact divertеd the court of the car in which the defendant and the other men were riding, causing it to collide with still another automobile. In this last collision, the men in the car, as well as the police officer, were thrown to the ground. Two of the men ran away and were followed on foot by the officer, who called to' them several times to stop, and upon their refusing to do so, he shot at them and, as- was subsequently shown, struck the defendant in the right wrist. The pursuit was continued and shortly thereafter the defendant was apprehended at Eighteenth and Oak streets. Upon being taken to the police station, his face was found to be bleeding, evidently having been cut by the broken glass of the windshield when his car collided with the other automobiles, and that he had a gunshot wound in his right wrist.
When the collision occurred, a package was seen to fall out of the wrecked car in which the defendant and the two others were riding. This package was picked up by someone who was passing and was subsequently identified to be the money which had been taken from the messenger of the millinery store and which remained intact in its original package. A chauffeur, for an auto-repair company located near the scene of the collision, saw a third man run from near the wrecked car with bleеding *216 face. He came to the chauffeur and asked to be taken to a hospital. The latter took him into his car to comply with his request when they ran into a blocked street which was undergoing repair. When the car stopped, the injured man leaped out and started to run, but was apprehended by police officers. He was identified as one Roy Wilson, and was subsequently shown to have been one of the three men who were in the car driven by the defendant at the time of the collision. Every person who witnessed the collision and saw the defendant after his arrest at the police station identified him as one of the three men that were thrown from the car. The messenger of the millinery company, however, who had been robbed, was unable to identify the defendant as one of the men who had assaulted him.
The defendant took the stand as a witness, but introduced no testimony except to state that his real name was Henry E. Kuhn, and to offer what purported to be an honorable discharge from the United States Army. Upon the exclusion of this offer, the defendant rested his case upon the demurrer to the State’s evidence.
The points stressed by the defendant in his brief are: (1) Insufficient evidence to sustain a conviction; (2) the admission of prejudicial testimоny; (3) improper remarks of the attorneys for the State and the court; (4) refusal to admit in evidence the discharge of defendant from the United States Army as proof of previous good character; (5) the giving of instructions for the State numbered two and three; and (6) that the verdict is excessive.
*217 The testimony elicited by the State from the witnesses Porter and Kritser in regard to one Roy Wilson,afterwards shown to have been one of the three men who werе thrown from the car, was wholly irrelevant, bnt a careful analysis of same in the light of all of the testimony fails to disclose in what manner its admission could have been prejudicial to the defendant. Only when the testimony objected to is supplemented by the construction given to it by able counsel for the defendant can it be construed as having the effect attributed to it. '
The objectionable questions propounded to the dеfendant on cross-examination by counsel, for the State were excluded from the consideration of the jury, and, hence, not error.
The evidence here sought to be introduced consists of the honorable discharge of the defendant from the United States Army for the purpose of proving his good character. Leaving ‘ out. of consideration the question as to whether traits of character necessary to constitute a good soldier may be reasonably construed as strengthening the presumption of defendant’s innocence when charged with highway robbery, we are confronted, as necessarily preceding such a discussion, with the question as to whether the evidence of-this particular nature is primarily admissible. This matter has not been ruled upon in this jurisdiction, but has elsewhere.
It is pertinent before discussing the rule of evidence involvеd to inquire as to the nature of a soldier’s discharge. It is not contended that it is a record or a copy of a record. It consists in this instance simply, as au *218 thorized by the Articles of War (See. 147), of a certificate of discharge, signed by a colonel of infantry, presumably the commanding, officer, stating the facts in regard to the services of one Henry E. Kuhn, which the defendant stated on the witnes's stand was his real name, and that his сharacter was excellent at the date, September 17,1918, it was issued. The recognized purpose of this paper is to place in the possession of a discharged soldier, in this case the defendant, evidence of his lawful discharge and afford him authentic proof for his protection. As such it cannot be classified other than as merely a written declaration, wholly ex parte, made by a third party out of court, and, under a fundamental rule of evidence, not admissible. ■
The rule as thus stated has been announced in other jurisdictions as follows:
In Keyes v. Keyes, 199 Pac. (N. M.) l. c. 362, the Supreme Court of New Mexico affirmed the rule as above stated, although the officer making the certificate was Gen. Goethals, Governor of the Panama Canal Zone. While the paper was not a discharge, but a certificate of voluntary resignation, it contained the following affirmative statement that during the period of the holder’s employment his general workmanship was excellent and his general conduct very good.” In excluding this paper, the court- said: “But, even if testimony as to appellee’s good moral character was an issue in the case, he could not prove it by the introduction of an
ex parte
certificate. This question has come before the cоurts in eases where soldiers have offered to introduce certificates of discharge, and in every instance they have been held
ex parte
declarations and inadmissible. [People v. Eckman,
In People v. Eckman (supra), in a prosecution for burglary, a discharge of the defendant from the United States Army certified as to his good character, the lan* guage of the court in ruling upon the same'was as follows: “The second ground of error assigned by appel *219 lant is the refusаl of the court to allow in evidence — as proof tending to show the good character of the defendant-certificate of the discharge of the defendant from the United States Army for disability, which also certified his character to be good. It does not appear what parr ticular traits of character were certified to in the document excluded; but we do not know of any rule which— upon, the general issue of character — allows the introduction of written declarations, official or otherwise, made by third parties out of court. We think, therefore, that this point is not tenable.”
In Taylor v. State (supra), in a prosecution for homicide, the court held that a certificate from an officer of the United States Army showing that the accused had been honorably discharged and stating, that his character was good, is nоt admissible in evidence to establish his good character for peaceableness, or generally.
The rule is, of course, applicable, whether the evidence is sought to be introduced to show good character or the contrary.
In State v. Shaw,
A like rule under different facts as to the nature of the document is declared in Johnson v. State,
In Commonwealth v. Crowley, 26 Pa. Sup. Ct. 124, the appellate court, in discussing the question of the admissibility of the discharge of a defendant from the United States Army said among other things: “We do not deem it necessary to determine the question whether the discharge offered in evidence is self-authenticated and prima-facie admissible as evidence for any purpose. We do not deem it competent for the purpose for which *220 it was admitted. The paper is not a record nor does it appear to be a copy of a rеcord. It is a document delivered to a discharge soldier presumably to place in his possession evidence of -his service and his lawful discharge. It is for his use and protection only. ’ ’
In Burns v. State, 23 Tex. Cr. App. l. c. 642, a sergeant of a company in which the accused had served was put on the stand as a witness by the State against objection and stated that he kept the record of the company during the service of the accused and that it was not good. The court held that the testimony was incompetent and reversed the case.
These are the only cases we have been able to find on this subject. Others based on different facts as to the nature of the instrument offered will be found cited in 4 Mod. Ev., Chamberlayne, sec. 3343.
The discharge in question is not in the nature of an official document, the admissibility in evidence of which is either provided for by statute or by rules in regard thereto, but is, as we have stated, but a written ex parte declaration and, hence, the cases discussed in this connection by the defendant are not relevant.
The Manual for Courts-Martial (issued under the authority of Section 38 of the Articles of War in the United States statutes) which, in Section .270, among other things, provides “that the certificate of discharge may be used by the defense either before or after thе findings for proof of good character,” is foreign to a consideration of the rule under review. In declaring that the certificate may be used “either before or after findings,” only such findings as are made in courts-martial 'are intended, the entire subject of the statute being: in regard to that character of proceeding. Certain it is that this statute was never intended to abrogate a general rule of evidence аs applied in the courts of the different states. If so, its futility for that purpose would be too apparent to admit of discussion.
The cases of Fitchburg v. Lumenburg,
Neither case contains any reference to proof of character; in each the discharge was introduced under a statute of Massachusetts (1865, p. 230) to define the soldier’s status as concerned his right to a settlemеnt in the village named and the relief consequent upon proof of such right. In what manner these discharges were authenticated to entitle them to be admitted in evidence even in cases of this character does not appear; but it is evident that they contained something more than the discharge itself from the court’s ruling in the Hanson Case that “the certificate from the Adjutant General’s office, signed by one of thе assistant adjutants general, of what appeared from the records of that office, did not profess to be a transcript of the records, but was simply a statement of what the certifying officer, under whose hand it was, deemed to be shown by them; and was rightly rejected, even if otherwise competent, for the reason that it was clearly possible that the officer might have been mistaken as to the true conclusions to be drawn from the records. [Oakes v. Hill,
In none of the other cases cited by the defendant was it attempted to introduce a discharge as evidence of former good character.
From all of which the conclusion follows that the discharge of the defendant was incompetent and that the court did not err in excluding it.
While the judge’s real mental attitude was probably one of impartiality, the words employed by him must be measured not alone by their tenor but the occasion and *222 circumstances under which they were uttered. To give an abstract meaning, therefore, to the remarks of a judge made during the progress of a trial, is next to impossible. The natural inclination of the human mind, be it that of a juror or another, is to give a concrete application to such remarks and to understand, however foreign to the judge’s purpose, that they are meant to apply to the case on trial. The trier of the facts, therefore, is less liable to err who is content to rule without remark upon the matters submitted to him. Rеcognizing the wisdom of this course, no room would have been afforded for the conclusion, which we think is authorized by the judge’s remark in speaking of the document excluded, as “calculated to discharge a guilty man,” that the defendant was referred to. Thus construed, the remark must be held to have been prejudicial.
The touchstone in this matter, as in the measure of instructions generally which are objected to, is, did the instruction as given tend to prejudice the rights of the defendant. Absent this essential and it does not constitute error. Before, therefore, the instruction can be construed as prejudicial, in view of the fact that it complies with the letter of the statute, it must be shown that, as drawn, it authorizes a verdict in excess of what would have been the defendant’s punishment if an opportunity had been afforded to sentence him for life. This is a, matter which can only be determined from an ascertainment of the defendant’s life expectancy, which the record does not disclose. Undеr this state of the facts, the applicable law, having been correctly declared, if the defendant desired a more definite instruction, he should have asked for it or submitted one which imposed the alternative he now insists upon. [State v. Burgess, 193 S. W. (Mo.) 821; State v. Velz,
It is further contended that the trial court erred in withdrawing instruction numbered three from the consideration of the jury. This instruction was in regard to an alibi and was withdrawn before the jury retirеd to consider their verdict, on the ground that there was no evidence to support it. In what manner the defendant was injured by the court’s action in this regard is not shown. It does not admit-of controversy that a court has the power and it is its duty at any time during the trial, especially before the case lias been submitted to the jury, to withdraw or correct an instruction if upon reflection the same is considered to have been errоneously given. [State v. Shapiro, 216 Mo. l. c. 368, 371.]
*224
It is said in State v. Griffin, 84, N. J. L. 432, that “the fact that the Legislature provides a punishment for a given crime more severe than the courts approve, affords no ground for judicial interference; for such interference would be nothing more nor less than an attempted usurpation of the legislative power by the judiciary. It is the character and not the extent of the punishment inflicted as a penalty for the commission of crime which is struck at by the constitutional provision.”
We regard this interpretation of the constitutional provision a salutary one and decline to sustain the defendant’s contention in this behalf.
The error noted necessitates a reversal and remanding of this case for a new trial. It is so ordered.