74 Mo. 547 (Mo. 1881), State v. Martin

Citation:74 Mo. 547
Opinion Judge:NORTON, J.
Party Name:THE STATE v. MARTIN, Appellant.
Attorney:Holt, Moore, Patterson & Mitchell for appellant. D. H. McIntyre, Attorney General, and E. B. Kellerman, Prosecuting Attorney of Laclede county, for the State.
Court:Supreme Court of Missouri
 
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Page 547

74 Mo. 547 (Mo. 1881)

THE STATE

v.

MARTIN, Appellant.

Supreme Court of Missouri.

October Term, 1881

Appeal from Laclede Circuit Court. --HON. R. W. FYAN, Judge.

REVERSED.

Holt, Moore, Patterson & Mitchell for appellant.

D. H. McIntyre, Attorney General, and E. B. Kellerman, Prosecuting Attorney of Laclede county, for the State.

NORTON, J.

The defendant was jointly indicted with Sarah I. Martin, for the murder of George Mizer, at the August term, 1879, of the Laclede county circuit court.

1. CRIMINAL LAW: evidence of other offenses.

At the February term, 1880, of said court, he was tried and convicted of murder in the first degree. Motions for new trial and in arrest having been overruled, he brings the cause here by appeal, and assigns various grounds for error, one of which is, that the court, over the objection of defendant, allowed the State to read in evidence two indictments against the defendant charging him with felonious assaults upon one Jesse Prewitt. The offenses charged in the indictment in no way, so far as the record shows, had any connection with the offense for which the defendant was being tried. This evidence was calculated to prejudice the jury, and to put the character of defendant in issue, without any such issue having been tendered by him. The rule is, that the character of a person criminally charged cannot be assailed by the State until the accused has offered proof as to character. Under the ruling of this court in the cases of State v. Reavis, 71 Mo. 420; State v. Hart, 66 Mo. 208, and under the rule laid down in Wharton on Crim. Plead. and Ev., (6 Ed.) pp. 635, 636, 647, 648, error was committed in admitting the evidence. State v. Creson, 38 Mo. 372.

2. ____: witnesses

The assistant prosecuting attorney, in his closing argument to the jury, said: " That the co-defendant is a competent witness in behalf of the defendant, as well as the defendant, under the laws of this State, and the attorneys for defendant know it." He also proceeded to comment at length upon the fact that Sarah I. Martin, who was jointly indicted with defendant, was a competent witness, and, though present during the whole trial, was not put upon the stand to contradict statements made by other witnesses in regard to matters occurring in her presence, and that defendant dared not put her on the stand, etc. These...

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