Garrett v. State

• Decision Date: 31 August 1839
• Citation: 6 Mo. 1
• Parties: GARRETT v. THE STATE.
• Court: Missouri Supreme Court

6 Mo. 1

GARRETT

v.THE STATE.

Supreme Court of Missouri.

August Term, 1839.

APPEAL FROM THE CIRCUIT COURT OF MORGAN COUNTY.

Appellant's Brief. To reverse the judgment of the Circuit Court the appellant insists upon the following points. 1st. That the court erred in rejecting the evidence offered to prove what Polly Johnson had sworn and said in regard to the description of the appellant. See Norris' Peake, 275-6, 1 Starkie's Ev. 144-5; 3 Starkie's Ev. 1753-5; 2 Russell on Crimes, 577-581; Tucker v. Welsh, 17 Mass. R. 161. 2d. That the court erred in rejecting Young E. Miller as a witness. 2 Russell on Crimes, 543; 2 Starkie's Ev. 22; 21 Eng. Com. L. R. 471. 3d. That the court erred in rejecting the testimony of what Lebo had sworn on the inquisition. See Swift's Dig. 125-6; 1 Starkie's Ev. 97; 4 Binn. R. 111; 15 Johns. R. 539; 2 Russell on Crimes, 634-5; 1 Phil. Ev. 219; 3 Eng. Com. L. R. 318.

Appellee's Brief. 1st. When a witness is asked on his cross-examination, whether on a former occasion he has not made certain statements, and answers that he does not recollect having made such statements, evidence is inadmissible to prove that he did make such statements. 3 Starkie on Ev. 1753-4. The Queen's case, 6 Eng. Com. L. R. 130; Roscoe on Ev. 141. 2d. A party in the same indictment cannot be a witness for his co-defendant, until he has been first acquitted or convicted; and whether the defendants plead jointly or separately makes no difference. 10 Johns. R. 94; 6 Cowen, 323; 1 Hale's P. C. 306; 6 Term R. 623.

TOMPKINS, J.^a1

This was a joint indictment against said Garrett, Ellison Williams, Young E. Miller, James Williams and Presly Bryant, for a felonious assault committed on Richard Johnson and Polly Johnson his wife. Garrett was found guilty in the Circuit Court, and to reverse the judgment of that court he appeals to this court. On the trial of the cause the State introduced as a witness Polly Johnson, one of the persons mentioned in the indictment. She testified that on the night of the 28th January, 1838, in the county of Morgan, after she and her husband had gone to bed, and he was asleep, two men came to their house and went to the fire and stirred it up so as to make a light; they then came to the bed, Garrett, the defendant and appellant, to the foot, and Ellison Williams to the side near the head; that Garrett had a club; she waked her husband, he arose in the bed, and as he rose Garrett beat him down with the club, and then he and Williams dragged him out of the house some distance, and together with Young E. Miller and the other defendants in the indictment, beat, bruised, wounded, and very much abused the said Richard Johnson. Upon the cross-examination of the witness, the defendant's counsel asked her whether she recognized Garrett, before he came from the fire to the foot of the bed. She answered that she did not, but that when he got to the foot of the bed she discovered that his face was blacked; that she did not on that night observe either the color of his eyes or hair, but that she recognized him from the features of his face and general appearance; that she had never seen him but on three different occasions before that night, and that he was riding or walking by the place where she was standing, that she had never any conversation with him, nor been immediately in his company. The defendant's counsel then asked her whether she had not on oath stated, before the committing magistrate before whom the defendant had been brought on the same charge, that she recognized and knew Garrett before he came to the bed, and while he stood on the hearth near the fire, and that his eyes and hair were black: she answered that she did not recollect whether she so testified before the justice or not. Garrett then asked her, whether she had not on a former occasion, to-wit: the trial of Young E. Miller, testified that the eyes and hair of the defendant were black, and that she knew him by the color of his eyes and hair; the witness answered that she did not recollect whether or not she had so testified. The prisoner then asked the witness whether she had not on several occasions when not on oath declared that Garrett was the person who came into the house and struck her husband, because she distinctly saw him while standing on the hearth, and observed the color of his eyes and hair to be black. To this the witness answered that she did not recollect whether or not she had so stated. The defendant then offered to prove by the justice of the peace, and by other witnesses that the witness had on several occasions stated that the hair and eyes of the prisoner Garrett were black, and that it was by the color of his eyes and hair that she recognized him to be the person who struck her husband. The defendant offered also to prove his eyes and hair to be light. The court rejected the evidence and the defendant excepted. The defendant being on his separate trial offered to introduce Young E. Miller, one of the persons indicted as above mentioned, but who was not then on trial, as a witness; the court refused to admit him and the defendant excepted. The defendant then offered to produce the transcript of the proceedings of the justice of the peace, who took the examination of Garrett and the other prisoners previously to their commitment on the charge for which they were indicted, to prove that such an examination was had, and offered to prove that on the examination before such justices one Lebo was sworn as a witness on the part of the defendants, and that he testified that said Garrett was not guilty of the charge, and that said Lebo, since that time and before the trial of said Garrett, had died; this evidence the court also rejected and the defendant, now plaintiff in error, excepted.

The plaintiff in error also moved for a new trial and excepted to the opinion of the court overruling the motion, these several decisions of the Circuit Court are assigned for error, and the counsel of the defendant makes the following points: 1st. That the court erred in rejecting the evidence offered to prove what Polly Johnson had sworn and said in regard to the description of the appellant. 2nd. That the court erred in rejecting Young E Miller as a witness. 3rd. That the court...