State v. Chyo Chiagk

• Decision Date: 20 June 1887
• Citation: 4 S.W. 704,92 Mo. 395
• Parties: STATE v. CHYO CHIAGK.
• Court: Missouri Supreme Court

4 S.W. 704

92 Mo. 395

STATE v. CHYO CHIAGK.

Supreme Court of Missouri.

June 20, 1887.

1. CRIMINAL PRACTICE — EVIDENCE — ACCOMPLICE.

In a trial for murder it is error to permit one who is jointly indicted with the defendant and others to testify on behalf of the state, when the case against himself is not disposed of by conviction, acquittal, or nolle prosequi, though he is not put upon his trial.

2. SAME — EVIDENCE — ACCOMPLICE — CORROBORATION.

The testimony of an accomplice in a trial for murder in Missouri must be corroborated by other evidence in respect to the identity of the accused. Hence an instruction: "The testimony of an accomplice is admissible, yet, when not corroborated by the testimony of some person not implicated in the crime as to matters material to the issue, ought to be received with great caution by the jury," — is erroneous, because it does not show that the words "matters material to the issue" include the identity of the accused. NORTON, C. J., dissenting.

3. SAME — EVIDENCE — CO-DEFENDANT.

Under Rev. St. Mo. 1879, § 1918, which provides that "no person shall be incompetent to testify as a witness in any criminal cause or prosecution by reason of being the person on trial or examination, * * * provided that no person on trial or examination * * * shall be required to testify, but any such person may, at the option of the defendant, testify in his behalf, or on behalf of a co-defendant," it is error to refuse to permit the co-defendants of the accused, jointly indicted with him, but not put on trial, to testify in his behalf. NORTON, C. J., dissenting.

4. OATH — CHINESE — "BURNING JOSS-STICKS."

Under Rev. St. Mo. 1879, §§ 3324, 3325, providing that the oath shall be administered to a person about to be sworn in the mode most binding on his conscience, and that every person believing in any religion other than the Christian religion shall be sworn according to the peculiar ceremonies of his religion, when a Chinese interpreter states that "the joss-stick burning is the true oath among the Chinese," it is error to compel him to be sworn in the usual way. NORTON, C. J., dissenting.

5. INDICTMENT — VALIDITY — WRONGFUL ARREST.

In Missouri the fact that the defendant has been wrongfully arrested and detained does not impair the validity of an indictment, otherwise valid, subsequently found against him. NORTON, C. J., dissenting.

Appeal from St. Louis criminal court. Indictment for murder.

Atty. Gen. Boone, for respondent. Martin & Fauntleroy and H. D. Laughlin, for appellant.

SHERWOOD, J.

By a special grand jury at the May term, 1885, of the St. Louis criminal court, the defendant was indicted jointly with Chyo Pock, Hock Siagk, Cong Seng, Chyo Goom, You Sing, and Pock Sig, all Chinamen, for the murder of Lon Johnson, also a Chinaman, in the city of St. Louis on June 1, 1885. The defendant obtained a severance, and, being separately tried, was convicted at the January term, 1886, of murder in the first degree, and sentenced accordingly. The indictment contained three counts, all charging the same offense: "(1) That Chyo Pock, Chyo Chiagk, Hock Siagk, and Cong Seng stabbed and killed deceased with knives; (2) that Chyo Pock and Chyo Chiagk stabbed and killed deceased, — Hock Chiagk and Cong Seng being present aiding and abetting; and (3) that Chyo Chiagk (appellant) stabbed and killed deceased, — Chyo Pock, Hock Siagk, and Cong Seng being present aiding and abetting in the killing." In each and all of these counts the defendants Chyo Goom, You Sing, and Pock Sig were charged as accessories before the fact.

1. Was error committed in permitting Cong Seng, jointly indicted with defendant and others, but not put upon his trial, to testify on behalf of the state, and against the defendant? Was error committed in refusing to permit the co-defendants of the defendant, jointly indicted with him, but not put on trial, to testify in his behalf? Of these questions in their order.

As to the first. In the endeavor to ascertain the present status of the law in this state, as involved in this question, it is necessary to give a summary of what has been heretofore decided by this court, as well as to quote from the text writers, and to set forth certain statutory provisions bearing on the point in hand.

Bishop says: "One of two or more joint defendants cannot be a witness for or against another, even on a separate trial, until the case, as to himself, is disposed of by a plea of guilty, or a verdict of conviction or acquittal, or a discharge on a plea in abatement. Then he may be. Sentence need not be rendered. Of course, if the indictments are separate, he may be a witness, though the offense is supposed to be joint." "According to Lord Hale it was the usage in his time not to indict one who was to be a witness because this would disparage his testimony; but, in our day, no good reason appears for attempting to veil from a jury the real facts with a gauze so transparent. Hence with us one of the methods is for the prosecuting officer to require the accomplice to submit to be indicted with the rest. Whereupon the law is that a joint defendant cannot be a witness for or against the others, even on a separate trial, till the case is disposed of as to him by a conviction or acquittal, or by a nolle prosequi. But judgment on the conviction need not be rendered. Therefore the defendant who is to testify pleads guilty, and then testifies. If his testimony entitles him to be discharged, there is a nolle prosequi or other appropriate proceeding; or, if not, the court has only to render sentence on the plea of guilty." 1 Bish. Crim. Proc. §§ 1020, 1166, and cases cited.

In Best's Principles of Evidence, (by Chamberlayne,) 180, it is said: "Except as above stated, the incompetency of accused parties to give formal evidence in criminal proceedings still subsists; nor even can parties jointly indicted be called as witnesses for or against themselves, or against each other."

Another author says: "But as, in civil actions against several defendants, a co-defendant may sometimes be so circumstanced as to be a competent witness, so in criminal prosecutions one of several persons jointly indicted may be rendered competent to give evidence either for the prosecution or for his co-defendants. Thus, upon an information by the crown against two or more, if a nolle prosequi be entered by the attorney general, either before or at the trial, as to one of the defendants, such defendant may be called as a witness for the crown against his co-defendant. So where, upon a joint indictment against two, one had pleaded in abatement, and for want of replication judgment had been entered that he should be dismissed and discharged, he was admitted, without objection, as a competent witness for the other defendant, being himself no longer interested in the event of the prosecution." "It has been held, in a recent case, that a prisoner who has pleaded guilty to an indictment is a competent witness against other defendants joined in the same indictment. It was contended in this case that the defendant was not admissible as a witness against two other prisoners included in the same indictment, because he was a party to the record; but ALDERSON, B., observed that he was not a party to the issues, — the only issues being whether the two other prisoners were guilty or not." 1 Phil. Ev. 64, 65.

Greenleaf says: "In regard to defendants in criminal cases, if the state would call one of them as a witness against others in the same indictment, this can be done only by discharging him from the record as by the entry of a nolle prosequi, or by an order for his dismissal and discharge, where he has pleaded in abatement as to his own person, and the plea is not answered, or by a verdict of acquittal where no evidence, or not sufficient evidence, has been adduced against him. In the former case, where there is no proof, he is entitled to the verdict; and it may also be rendered at the request of the other defendants, who may then call him as a witness for themselves, as in civil cases. In the latter, where there is some evidence against him, but it is deemed insufficient, a separate verdict of acquittal may be entered at the instance of the prosecuting officer, who may then call him as a witness against the others. On the same principle, where two were indicted for an assault, and one submitted and was fined, and paid the fine, and the other pleaded `not guilty,' the former was admitted as a competent witness for the latter, because as to the witness the matter was at an end. But the matter is not considered as at an end, so as to render one defendant a competent witness for another, by anything short of a final judgment or a plea of guilty. Therefore, where two were jointly indicted for uttering a forged note, and the trial of one of them was postponed, it was held that he could not be called as a witness for the other. So, where two, being jointly indicted for an assault, pleaded separately `not guilty,' and elected to be tried separately, it was held that the one tried first could not call the other as a witness for him." 1 Greenl. Ev. § 363. Elsewhere the same author states: "The usual course is to leave out of the indictment those who are to be called as witnesses; but it makes no difference, as to the admissibility of an accomplice, whether he is indicted or not, if he has not been put on his trial at the same time with his companions in crime. He is also a competent witness in their favor; and if he is put on his trial at the same time with them, and there is only very slight evidence, if any at all, against him, the court may, as we have already seen, and generally will, forthwith direct a separate verdict as to him, and upon his acquittal will admit him as a witness for the others. If he is convicted, and the punishment is by fine only, he will be admitted for the others, if he has paid the fine." 1 Greenl. Ev. § 379.

...