17 S.W. 301 (Mo. 1891), State v. Jackson

Citation:17 S.W. 301, 106 Mo. 174
Opinion Judge:Thomas, J.
Party Name:The State v. Jackson, Appellant
Attorney:Draffen & Williams for appellant. John M. Wood, Attorney General, for the State.
Case Date:October 12, 1891
Court:Supreme Court of Missouri
 
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Page 301

17 S.W. 301 (Mo. 1891)

106 Mo. 174

The State

v.

Jackson, Appellant

Supreme Court of Missouri, Second Division

October 12, 1891

Appeal from Cooper Circuit Court. -- Hon. E. L. Edwards, Judge.

Affirmed.

Draffen & Williams for appellant.

(1) The court erred in permitting James Murray to testify in favor of the state, and against the defendant Jackson. The indictment is a joint one against witness and Jackson, and the state had no right, under the statute, to swear him over the objections of the defendant. R. S. 1889, secs. 4217, 4218; State v. Chio Chiagk, 92 Mo. 406. (2) The court committed error in refusing to give defendant's instruction, numbered 2, as originally asked by him. There was not a scintilla of evidence of any corroboration of Murray's testimony. There was no evidence outside of the accomplice's testimony that connected Jackson in any manner with entering the billiard hall. State v. Chio Chiagk, 92 Mo. 416; Whart. Crim. Ev., sec. 442. (3) The only evidence that the state offered, for the purpose of corroborating the testimony of Murray, were the facts that Jackson, at the time of the burglary, owned or had in his possession a pair of gum boots, and that next morning after the burglary some tracks, apparently made with gum boots, were found in alley near billiard hall, and that Jackson, on night of burglary, was seen at James Carter's, on Spring street, about the hour of twelve o'clock. Do these facts in any way connect Jackson with the burglary, or do they in any manner corroborate the evidence of Murray (a confessed thief)? Where there is no evidence of a fact, the court should, as a matter of law, so tell the jury.

John M. Wood, Attorney General, for the State.

(1) Where the case as to one defendant jointly indicted with another is disposed of by plea of guilty, or by verdict and conviction or acquittal, he is a competent witness for the other. It appeared that Murray had pleaded guilty. His testimony was, therefore, competent. State v. Hunt, 91 Mo. 491. (2) No other objections were saved as to the admission or rejection of any other testimony in the cause. (3) The only complaint in the motion for a new trial as to the instructions is that the court refused to declare the law as asked by defendant. The only instruction asked by defendant, which was refused, was instruction, numbered 2. This was clearly erroneous, for the reason that it told the jury that there was no evidence corroborating that of James Murray, when, in fact, there was testimony introduced which tended to show that Jackson was guilty, and which corroborated the statement made by his confederate, Murray. The instruction given by the court as to the testimony of an accomplice was the proper one to give in the case. State v. Walker, 98 Mo. 95, and cases cited.

OPINION

[106 Mo. 176] Thomas, J.

Jackson and James Murray were indicted in the Cooper county circuit court, for burglary and larceny. Jackson, on a separate trial had, was found guilty of both crimes...

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