State v. Barnes

• Decision Date: 03 June 1918
• Docket Number: No. 20729.,20729.
• Citation: 204 S.W. 267,274 Mo. 625
• Parties: STATE v. BARNES.
• Court: Missouri Supreme Court

204 S.W. 267

274 Mo. 625

STATE v. BARNES.

No. 20729.

Supreme Court of Missouri, Division No. 2.

June 3, 1918.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

Elmer Barnes was convicted of burglary in the second degree and larceny, and he appeals. Affirmed.

Thomas J. Rowe, Jr., and Henry Rowe, both of St. Louis. for appellant. Frank W. McAllister, Atty. Gen., and George V. Berry, Special Asst. Atty. Gen., for the State.

WALKER, P. J.

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' 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 sentences for each of the offenses in the order of his convictions were authorized. The cases cited by appellant were 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. loc. cit. 164, 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. loc. cit. 50, 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. loc. cit. 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 (section 22, art. 2, Const. Mo.); that the notes of this testimony were net 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 State v. McO'Blenis, 24 Mo. 402, 69 Am. Dec. 435, 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 this made has since been uniformly adhered to. State v. Moore, 156 Mo. loc. cit. 210, 56 S. W. 883, and cases cited; State v. Butler, 247 Mo. 685, 153 S. W....