144 S.W. 495 (Mo. 1912), The State v. Potts

Citation:144 S.W. 495, 239 Mo. 403
Opinion Judge:KENNISH, J.
Party Name:THE STATE v. F. W. POTTS, Appellant
Attorney:Clay & Davis and Burton for appellant. Elliott W. Major, Attorney-General and John M. Dawson, Assistant Attorney-General, for the State.
Judge Panel:KENNISH, J. Ferriss, P. J., and Brown, J., concur.
Case Date:February 06, 1912
Court:Supreme Court of Missouri
 
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Page 495

144 S.W. 495 (Mo. 1912)

239 Mo. 403

THE STATE

v.

F. W. POTTS, Appellant

Supreme Court of Missouri, Second Division

February 6, 1912

Appeal from Jasper Circuit Court. -- Hon. Joseph D. Perkins, Judge.

Reversed and remanded.

Clay & Davis and Burton for appellant.

(1) The court committed error in permitting the prosecuting attorney to indorse the name of the juror Miller upon the information, and then excusing him from the panel of jurors. (2) It was error to permit the witness Walker to testify to having seen defendant and Cannon talking together frequently. (3) The court committed error in refusing defendant permission to show by the witness Walker, on cross-examination, that he had an arrangement or agreement, made by his attorney with the prosecuting attorney's office, whereby his case was to be dismissed in consideration of his turning State's evidence against defendant. 3 Wigmore on Evidence, sec. 2196; 4 Wigmore on Evidence, sec. 2321; Weinstein v. Reid, 25 Mo.App. 47; Fry v. Estes, 52 Mo.App. 45; Ehrhardt v. Stevenson, 128 Mo.App. 476. (4) The court committed error in permitting the witness Walker to testify as to what Cannon did in and about the devices in question, and also what he did in and about the room in which they were located. (6) The court committed error in refusing defendant permission to cross-examine the witness Walker about his being a fugitive from justice. O'Connor v. Transit Co., 106 Mo.App. 220. (7) The court committed error in refusing defendant permission to cross-examine and show by the witness Walker that he took a woman to Raton, New Mexico, for the purpose of running a bawdy house, and that he was supported by said woman from her earnings as a bawd. O'Connor v. Transit Co., 106 Mo.App. 220; State v. Boyd, 178 Mo. 17. (8) The court committed error in permitting the State to show by the witness Walker that Charles Cannon knew, at the time the witness Walker was employed in the gambling house over the Club saloon, about the witness having made loaded dice, and to testify as to the purpose and object of making said dice, and to testify that, on the evening of his arrest, shaped dice were furnished him by the keeper of the house and that said dice were in use, and to testify as to the kind and character of the dice. (9) The court committed error in refusing defendant permission to read in evidence, for the purpose of impeaching the witness Walker, his testimony given on the trial of Charles Cannon. Ess v. Griffith, 128 Mo. 63. (10) The cause should be reversed and remanded on account of the remarks of the prosecuting attorney and his assistant made during the argument of the case. State v. Snyder, 182 Mo. 523; State v. Newcomb, 220 Mo. 67; State v. James and Johnson, 216 Mo. 401. Instruction 14 does not properly declare the law. This instruction tells the jury, in so many words, that the witness Walker was an accomplice of defendant. If he was an accomplice of defendant, that was a fact to be found by the jury (and not the court) from the evidence in the case.

Elliott W. Major, Attorney-General and John M. Dawson, Assistant Attorney-General, for the State.

(1) Appellant in his brief makes the point that the court committed error in refusing appellant permission to show by the witness Walker, on cross-examination, that he had an arrangement, or agreement, made by his attorney, with the prosecuting attorney's office whereby the witness Walker's case, was to be dismissed in consideration of his turning State's evidence against appellant. The court permitted the appellant to interrogate this witness upon any communication had between the witness and the prosecuting attorney, or any of his assistants, but refused to permit the attorney for appellant to cross-examine the witness as to any communication had between the witness and his attorney. That the communication between client and attorney is privileged, cannot be gainsaid. Ehrhardt v. Stevenson, 128 Mo.App. 476; Elliott v. Kansas City, 198 Mo. 593. (2) Instruction 14, complained of by appellant, is a cautionary instruction, and the fact that the court told the jury that Walker is known in law as an accomplice, is a more favorable declaration of law than appellant was entitled to. The instruction then proceeds to inform the jury that the matters connecting appellant with the commission of the crime as charged against him, should be received with great caution. The degree of credit which ought to be given to the testimony of an accomplice is a matter exclusively within the province of the jury. 1 Greenleaf on Evidence, sec. 380. (3) The argument of counsel in this case was proper. In one instance the assistant prosecuting attorney remarked that "it is not much trouble to convict these fellows." The court excluded this from the jury and told them not to take same into consideration. This was a rebuke to the assistant prosecuting attorney, and was all the court could do. An attorney has some...

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