State v. O'Connor

• Decision Date: 02 June 1891
• Citation: 105 Mo. 121,16 S.W. 510
• Parties: STATE v. O'CONNOR.
• Court: Missouri Supreme Court

16 S.W. 510

105 Mo. 121

STATE v. O'CONNOR.

Supreme Court of Missouri, Division No. 2.

June 2, 1891.

CRIMINAL LAW — MISCONDUCT OF JUDGE — ROBBERY.

1. On a trial for robbery the person alleged to have been robbed was put upon the stand by the prosecution, and testified that he did not know who took his watch; that he had lost it on the night of the alleged robbery, but who got it he did not know. The prosecuting attorney proceeded to cross-examine him, when the judge, after looking at the transcript of the witness' testimony before the grand jury, said that he had either lied then or was lying now, and ordered him into the custody of the marshal, and when instructing the jury directed them to disregard the testimony of the witness, and not to permit the action of the court in committing him to jail to influence their verdict. Held, that defendant was entitled to the witness' evidence on the issue whether or not the watch was taken from him by force, against his will, or not, and that the action of the court was error.

2. An instruction that if defendant assaulted the prosecuting witness, and with force and violence took from his person the watch named in the indictment, being of any value whatever, he was guilty of robbery, is erroneous as omitting the element of taking with intent to steal.

3. Evidence that the person making the arrest said to some third persons on the night of the alleged robbery that defendant was a "foot-pad," and that after defendant was taken to the police station the prosecuting witness met him there and said he would prosecute him, was incompetent.

Appeal from criminal court, Jackson county; H. P. WHITE, Judge.

John W. Wafford, for appellant. The Attorney General, for the State.

THOMAS, J.

The defendant was charged by indictment in the criminal court of Jackson county with robbery of the first degree, in taking a watch from William Franke by force and against his will. He was tried, convicted, and sentenced to the penitentiary for 10 years. The parties proceeded to trial, and William Franke was called as a witness by Mr. Woodson, the prosecuting attorney, and was examined at considerable length. He testified that he did not know who took his watch; he had lost it on the night of the alleged robbery, but who got it he did not know. The prosecuting attorney then proceeded to cross-examine him in regular style. He was asked what he had sworn before the grand jury, and, while this examination in regard to his testimony before the grand jury was going on, the judge of the court called for the evidence taken before that body, which was handed to him. The judge read this evidence while the prosecuting attorney continued his cross-examination of Franke, and the part this witness took in the trial, and how his examination ended, will appear by the following excerpt from the record, viz.: "By Mr. Woodson. It is a pity they didn't kill you instead of robbing you. I will ask you if you didn't go into Mr. Miller's place that night. Answer. I don't know whether I was in there at all. Question. Don't you know you were in there? A. No, sir. Q. Do you remember whether you were living or dead that day or night? (Defendant's counsel objects to the question, stating that it is a gross insult to the witness, and besides as to the irregularity of the question.) By the Court. I don't care for you to investigate this witness any further, Major. He has either lied now or he lied before the grand jury; I don't know which. I shall remand him to the custody of the marshal. Mr. Marshal, take care of him." And the marshal did take care of him, and took him from the court-room, before the examination in chief was concluded, and before the defendant had an opportunity to cross-examine him. Other witnesses were examined, and at the close of the testimony the court gave, among others, this instruction, over the objection of defendant: "(3) The testimony delivered by the witness William Franke while upon the witness stand should be wholly disregarded by you. And, further, the court instructs you that neither the direction above stated nor the action of the court in committing the said Franke to the county jail should be considered by you as in any way bearing upon the defendant's guilt or innocence." It is no use to make an...