State v. Barnes
| Decision Date | 03 June 1918 |
| Parties | THE STATE v. ELMER BARNES, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court. -- Hon. Leo S. Rassieur, Judge.
Affirmed.
Thomas J. Rowe, Jr., and Henry Rowe for appellant.
(1) There is no authority for convicting a prisoner of a felony at one term of the court and then remanding him to jail until the next succeeding term and again convicting him of another felony and then passing sentence upon him in both cases. Ex parte Meyers, 44 Mo. 282; State v. Connell, 49 Mo 282; Ex parte Jackson, 96 Mo. 116; Ex parte Allen, 196 Mo 231; State v. Buck, 120 Mo. 496; State v Bell, 212 Mo. 130. (2) The testimony of the witness Perdue was incompetent and in violation of Section 22, Article 2, of the Constitution (Secs. 5032 and 5042, R. S. 1909; Sec. 6345, R. S. 1909). State v. McO'Blenis, 24 Mo. 402; Williams v. Sleepy Hollow Mining Company, 7 L. R. A. (N. S.) l. c. 1177; Jackson v. Fulton, 87 Mo.App. 236; State v. Moore, 156 Mo. 210. (3) The jurors have no right to disregard the whole of a witness's testimony, although they may believe that he had sworn falsely to a material fact. Jurors have no right to disregard any testimony but false testimony. (4) Instruction Number 8, given by the court over defendant's objection, by which the jurors were told that they could disregard the whole or any part of a witness's testimony if they believed that he had sworn falsely to any material fact, is erroneous, because the court did not tell the jury what facts were material facts. Keeline v. Seeley, 257 Mo. 527.
Frank W. McAllister, Attorney-General and George V. Berry, Special Assistant Attorney-General, for respondent.
(1) The sentence may be postponed until a future day or future term. Sec. 4908, R. S. 1909; Kelley's Crim. Law and Prac., sec. 447; Ex parte Kayser, 47 Mo. 254; State v. Watson, 95 Mo. 415; Ex parte Bryan, 76 Mo. 254; Ex parte Durbin, 102 Mo. 103; Williamson's Case, 67 Mo. 174. (2) The testimony of Johnson taken at the preliminary examination was properly admitted. State v. Houser, 26 Mo. 437; State v. Harman, 27 Mo. 120; State v. McO'Blenis, 24 Mo. 402; State v. Moore, 156 Mo. 210; People v. Murphy, 45 Cal. 144; Owens v. State, 63 Miss. 45; 3 Russell on Crimes (Int. Ed.), 388; 1 Wharton's Crim. Ev. (10 Ed.), 227; 5 Ency. Ev., 312. (3) The jurors were the sole judges of the weight of the evidence and the credibility of the witnesses. State v. Henderson, 186 Mo. 492; State v. Hudspeth, 159 Mo. 200; State v. Hicks, 92 Mo. 434; State v. LaMont, 180 S.W. 863. (4) Instruction Number 8 correctly declared the law. State v. Miller, 93 Mo. 269; State v. Mounce, 106 Mo. 229; State v. Martin, 124 Mo. 521; State v. Harper, 149 Mo. 523; State v. LaMont, 180 S.W. 863.
Appellant was charged by information in the circuit court in the City of St. Louis, with burglary in the second degree and larceny. Upon a trial, he was convicted and his punishment assessed at four years in the Penitentiary. From this judgment he appeals.
One Aaron Johnson, returning to his home one day, found appellant hiding behind a kitchen door in his residence. The wife of Johnson was outside of the house, scrubbing the steps during her husband's temporary absence. Appellant ran out of the house and attempted to escape, but was overtaken by Johnson and others, and was turned over to a police officer. Returning from the chase of the appellant, the Johnsons found that the drawers of a dresser in their living room had been ransacked, and some jewelry taken therefrom.
Subsequently, Johnson was murdered. Appellant, who had been out on bail, was charged and tried for the killing of Johnson, and was convicted of murder in the second degree, but his sentence deferred on account of the pendency of the charge herein against him.
The errors assigned by appellant with which we are alone concerned, are as follows:
(1) That the State had no authority to convict and sentence appellant at one term, and defer his sentence until after his trial and conviction of another offense.
(2) That one not an official stenographer was not authorized to read at the trial the uncertified testimony of Johnson, taken by such stenographer at the preliminary examination, Johnson being at the time dead.
(3) That an instruction was erroneous which told the jury that if they believed any witness had willfully sworn falsely to any material fact, they were at liberty to disregard any or all of such witness's testimony. These in their order.
I. Appellant's first contention is based upon the assumption that the trial court exceeded its jurisdiction to try the appellant for any offense after his conviction for the murder until the term of his imprisonment, as fixed by the jury for that offense, had expired. The jurisdiction of a trial court, in a criminal case, is only finally terminated by the sentence of the defendant and the close of the term. The sentence of the appellant in the murder case having been deferred, the court's jurisdiction was not impaired in that case, nor was it in any wise affected in the burglary case and his subsequent trial for the latter offense, and his sentence for each of the offenses in the order of his convictions was authorized. The cases cited by appellant are not contrary to this conclusion, in that they recognize the presence of jurisdiction in the absence of a sentence. [State v. Bell, 212 Mo. 130, 111 S.W. 29, and cases cited.]
In confirmation of the correctness of this conclusion, we held in State v. Wear, 145 Mo. 162, 46 S.W. 1099, that jurisdiction continues for all purposes until the case has been finally disposed of; and that such final disposition only occurs when a sentence has been rendered which constitutes a judgment, and the term has ended.
In State v. Schierhoff, 103 Mo. 47, 15 S.W. 151, we held that a court does not lose jurisdiction until final judgment. In this case, the judgment was rendered one year after the rendition of the verdict.
In State v. Watson, 95 Mo. 411, 8 S.W. 383, we held that the sentence of one convicted of an offense may be postponed until a future day or term, to suit the convenience of the court or for cause shown. We, therefore, overrule this contention.
II. Appellant's second contention challenges the correctness of the ruling of the trial court in admitting in evidence the notes of the testimony of the deceased witness, Johnson. It is urged that appellant's constitutional right to meet this witness face to face was denied (Sec. 22, Art. 2, Con. Mo.), and that the notes of this testimony were not authentic in not having been taken by an official stenographer, and in not having been certified to by the judge of the Court of Criminal Correction, before whom the preliminary examination was held. The constitutional question has been settled adversely to appellant's contention ever since the ruling of this court in the McO'Blenis case, 24 Mo. 402, in which it was held that the deposition of a witness taken upon a preliminary examination before a committing magistrate in the presence of the accused, may be received in evidence on the trial, upon proof of the death of such witness; and that the provision of the Constitution declaring that in all criminal cases the accused has the right to meet the witnesses against him face to face, is not violated by the admission of such testimony. The ruling thus made has since been uniformly adhered to. [State v. Moore, 156 Mo. 204, 56 S.W. 883, and cases cited; State v. Butler, 247 Mo. 685, 153 S.W. 1042.]
But the McO'Blenis case decides more than the constitutional question. It affirms the common law ruling (1 & 2 Phil. & M., c. 13 and 3 Phil. & M., c. 10), which has not been changed by statute, that testimony taken as in the instant case may be admitted in evidence, the sole prerequisites to its admission being, in the absence of any question as to its correctness, (1) a showing that the witness is then dead; (2) the presence at the time of the taking of the testimony of the defendant; and (3) his right to cross-examine the witness.
The limitation now sought to be added to the admission of such testimony that the stenographer taking same must have an official character, and that the testimony when taken must be certified to by the judge before whom it was taken, finds no support in the reasons urged in the various cases in support of the admissibility of this character of testimony. In none of these cases, from that of McO'Blenis to State v Butler, was any question raised as to the character of the stenographer, if one was employed to take...
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