Thе defendants, John Thornhill and John Such, Jr., were prosecuted at the September
After the trаin had passed Springfield and was near a station on said road, known as Eepublic, the defendant, Thornhill, came in, .spoke to the prosecuting witness and sat down by .him. The two men began to converse. On learning that the prosecuting witness was going to South McAlester, Thornhill, who told the prosecuting witness that his name was Morgan, and that he was a brother to “Eeverend John Morgan,” also stated that he was going to South Mc-Alester. The prosecuting witness had a widowed sister who lived at South McAlester, and the defendant pretended to be acquainted with her. The defendant advised Burton that they would have to change cars at Monett, and that he would аssist him in making the change there. They reached Monett, separated, and the prosecuting witness went to the depot, where he remained until his train was announced. When he got back on the train, and in the rear end of the coach, he sat down, and had only been there a moment when defendant Thornhill tapped him on the shoulder, and said, “I will introduce you to the conductor, ’ ’ and they walked to the front end of the car. Thеre he introduced him to defendant Such, representing Such’s name to be Turner. Thornhill pulled out a twenty-dollar bill and told his co-defendant that he and the prosecuting witness wished a ticket for South McAlester. Such promрtly and sternly re
The State introduced a number of witnesses who saw and identified the three men and who heard the exclamation of the old man, and Thornhill attempting to pacify him.
On their part, the defendants offered evidence tending to show that two other men, whom the testimony characterized “as confidence men,” were the ones who committed the larceny. Thornhill also offered evidence tending to show that he did not board the train at¡ Republic, and that- he was in Monett during all the day. They both denied any connection with the crime; but the jury did not credit their statements and found them guilty.
Three grounds for reversal are urged by defendants.
I. Among other instructions given by the court is the following:
“3. The court instructs the jury that one of the defenses in this case is what is known as an alibi, that is, that they were not present at the time and place where it is alleged the crime was committed. Therefore, the jury are instructed if they believe from the evidence that the defendants were еlsewhere than at the place of the alleged larceny at the time the same was said to have been committed, then the jury should find the defendants not guilty, and if upon a full considera*369 tion of all the evidenсe in the case the jury have a reasonable donbt as to whether the defendants were present at the time and place of the alleged crime, they should acquit them.”
The objection made is, that the testimony to establish an alibi for each of the defendants is different, and the jury could have well believed the evidence tending to establish an alibi for one of the defendants and rejected it as to the othеr, but this instruction gave the jury no opportunity to separate the defendants and did not permit them to acquit one and convict the other; that in effect it told them that if they discredited it as to one, they might reject it аs to both.
An examination of the record discloses that no effort was made by defendant Such to prove an alibi. In fact he testified he was present in the car at Monett the night Mr. Burton was robbed. The State’s evidеnce all tended to show that Burton’s money was stolen at Monett in a .Frisco coach on the night of April 2d. The only alibi offered in evidence was on the part of Thornhill as to his presence on the train from the station Republic down to Monett. He insisted he was in Monett all that day and was not on the train with the old gentleman. He admits he was on the train, at Monett, on which the old gentleman’s money was stolen.
His alibi was to contrаdict Mr. Burton’s evidence to the effect that Thornhill rode with him from Republic to Monett, and talked with him, and gave his name as Morgan. Thornhill’s own evidence places him in the car at or near the time when the larceny was committed.
There was no evidence of an alibi at the time the theft was perpetrated, as to either Thornhill or Such.
The most that can be said- of this instruction is that it was too favorable to both of them, and it is evident it could not have injured them or either of
When not only the testimony in behalf of the State, but that of the defendants as well, established that the defendants were present on the car at the time the offense is alleged to havе been committed, there is no place in the instructions for the law as to alibi.
II. The defendants each offered evidence that their general reputation in the neighborhood in which they resided was good fоr honesty and integrity. On cross-examination the prosecuting attorney inquired if the witnesses did not know they were generally reputed to be gamblers.
Defendants objected to this line of cross-examination, but we think it was entirеly permissible. The defendants had tendered their character for honesty and integrity as an issue, and certainly proof that they were reputed to be gamblers would go far to establish that their reputations for hоnesty and integrity were bad. [State v. McLaughlin,
In rebuttal the State offered evidence that defendant Such had been convicted of gambling. The circuit court of its own motion struck out this evidence and directed the jury, bоth orally and in writing, to disregard it. Grambling under the laws of this State is a misdemeanor. [Sec. 2195/ R. S. 1899.] By section 4680, Revised Statutes 1899, the conviction of any person of a criminal offense may be proved to affect his credibility. The defendant Such had offered himself and testified as a witness. Under the foregoing section it was competent to prove his conviction of a misdemeanor which our statute defines to be “ a criminal offense.” [State v. Blitz,
III. The last contention is that the judgment must be reversed because the jury failed in their verdict, to assess the punishment of each defendant sep
This assignment has been considered by this court on different occasions. In the early cases of State v. Gay,
In the more recent case of State v. Gordon,
This ruling then and now commends itself for, the reason that as no error had occurred up to the point of аssessing the punishment, no rule of right or policy demanded that the whole case should be retried
At common law no such point as this could arise, because under that system the jury merely returned the verdict of guilty, and the duty of imposing the punishment as, to each defendant devolved upon the courts in accordance with the law.
In State v. Gordon,
What we directed thе circuit court to do in Cordon’s case, the record before ns discloses the circuit court did. When the motions for new trial and in arrest were overruled the court sentenced each of these defendаnts separately to the penitentiary for two years, the minimum punishment prescribed by the statute for grand larceny. The law never requires a vain and useless thing to be done. By reciting the verdict of guilty and the assessment оf the lowest punishment and then proceeding to sentence each separately, it must be held that the court in view of the statute above quoted assessed the punishment itself and rendered judgment accоrdingly. To send the case back for the court to go through the empty formality of again assessing the punishment would be to sacrifice substance and common sense to a barren technicality, which could in no way benefit the defendants or either of them.
The judgment therefore will be affirmed as to each defendant.