State v. Gesell

• Citation: 27 S.W. 1101
• Parties: STATE v. GESELL.
• Decision Date: 05 November 1894
• Court: United States State Supreme Court of Missouri

27 S.W. 1101

STATE v. GESELL.

Supreme Court of Missouri, Division No. 2.

November 5, 1894.

IMPEACHMENT OF WITNESS — CRIMINAL LAW — EXCLUSION OF WITNESS FROM COURT ROOM.

1. The veracity of a witness cannot be impeached by evidence of specific past delinquencies.

2. When, after an order excluding all witnesses from the court room, defendant's witness, a codefendant, to whom a severance had been granted, remains during the trial seated by defendant, the court is justified in refusing to allow him to be examined, on the ground that defendant connived at his disobedience.

Appeal from St. Louis criminal court; H. L. Edmunds, Judge.

Martin Gesell was convicted of manslaughter, and appeals. Affirmed.

R. W. Goode, for appellant. R. F. Walker and C. O. Bishop, for the State.

SHERWOOD, J.

This appeal is the result of the defendant's being tried on a charge of manslaughter in the fourth degree, resulting in his punishment, being assessed at a fine of $500. He was indicted with three others, Arthur E. Furber being one of his coindictees, and Seth O. Wilkins being the victim of the crime, a brutal assault, during which Wilkins was so struck by one of a party of four men, who were pursuing him, that he fell in the street, and died in two days thereafter. It does not appear that Wilkins resisted, or attempted to resist, the assault. The defendants applied for a severance, and a separate trial was granted each of them. The state elected to try defendant Gesell first, and so proceeded with his trial, resulting as aforesaid. Before these proceedings, however, the court, at the instance of the circuit attorney, ordered the exclusion of all the witnesses from the court room, as well those for the state as for the defendant; and proclamation to that effect, under the direction of the court, was made by the sheriff in the court room, and the witnesses for the state were assigned and directed by the sheriff to one anteroom, and the witnesses for the defendant assigned and directed to another, which rooms were at once respectively occupied by witnesses in attendance on the trial. But Furber, who had been a codefendant with Gesell, and had been severed from him, as already stated, in the words of the bill of exceptions, "remained seated by the defendant Gesell, in the court room, during the whole trial." The bill of exceptions sets forth: "The state, to sustain the issues on its part, offered evidence to prove the defendant guilty, as charged." The testimony of but one witness is preserved, to wit, of one Emma Glazebrook, who testified for the state as an eyewitness of the alleged assault, and identified the defendant as one of the assaulting party. Upon cross-examination, for the declared purpose of impeaching her credibility, she was asked by the defendant's counsel where she was born; and, upon her answering that she did not know, was further asked, "Where were you when you first remember where you were?" an objection to which by the state was sustained. She was also asked, in succession, where she went to school, to whom she was married in Springfield, if she did not go by the name of Miller, if she did not live with a man by the name of Miller, if she was married in Springfield, what name she went under in Springfield before coming to St. Louis, if she did not live with a man by the name of Miller in Springfield as his wife, whether she was not married and living with her husband, and whether Mr. Glazebrook was dead or alive. The state objected to all of these questions as wholly immaterial, and the court sustained the objections. The bill further recites "The defendant, to sustain the issue on his part, offered evidence tending to prove his innocence of the crime...