State v. Gyngard
| Decision Date | 08 February 1960 |
| Docket Number | No. 47412,No. 1,47412,1 |
| Citation | 333 S.W.2d 73,90 A.L.R.2d 639 |
| Parties | STATE of Missouri, Respondent, v. Robert Herman GYNGARD, Appellant |
| Court | Missouri Supreme Court |
Raymond A. Bruntrager, St. Louis, for appellant, Joseph G. Stewart, St. Louis, of counsel.
John M. Dalton, Atty. Gen., J. Richard Roberts, Asst. Atty. Gen., for respondent.
COIL, Commissioner.
Robert Gyngard was convicted of robbery in the first degree by means of a dangerous and dealdly weapon and his punishment fixed at five years in the penitentiary. He does not contend that the state failed to make a submissible case but asserts that the trial court erred in its ruling as to the competency of a witness, in refusing to permit specified cross-examination, in admitting certain evidence and in rebuking defendant's counsel.
Defendant and Harry W. Burnett were jointly informed against but apparently a severance was granted and only Gyngard was on trial in the instant case. The charge against Burnett was still pending at the time of this trial.
About 7:40 in the morning of September 5, 1958, two men entered W. K. Eckert's grocery store and while pointing pistols at Eckert and his clerk took $150 to $160 from Eckert's person and $79 to $89 from his cash register. The man who took the cash register money was Harry Burnett, defendant's co-indictee, and he, at the time, had in his hand a brown paper bag. The two left in defendant's automobile. Burnett and defendant arrived at the residence of Burnett's wife about 8:15 a. m. Mr. and Mrs. Burnett were living apart; their divorce suit was pending and they were divorced four days later on September 9, 1958.
Mrs. Burnett testified over defendant's objection that while at her home either her husband or defendant was carrying a brown paper bag; that they (her husband and defendant) went in the bathroom purportedly to 'clean up' and emerged five or ten minutes later unchanged in appearance and her husband then handed her a $20 bill; that her husband had a gun and that he and defendant left about 9:15 a. m.
Defendant worked at a warehouse where he had been employed for two days preceding September 5th. His hours were 8 a. m. to 4:30 p. m. He arrived at work on September 5th at 10 a. m. and was arrested at 10:35 a. m. by a police officer who found defendant's automobile, the same one which had been driven away from the place of the robbery, in an areaway leading to defendant's employer's premises. At the time of arrest defendant's billfold contained $104 made up of one 20, four 10's, three 5's and twenty-nine 1's.
Defendant contends that Mrs. Burnett's testimony should not have been admitted. Burnett was the co-indictee of defendant. The witness was not Burnett's wife at the time of defendant's trial but she testified to matters which transpired at a time when she was co-indictee Burnett's wife. Defendant was not identified by an eyewitness as having been a participant in the robbery so that Mrs. Burnett's testimony furnished a circumstance which with others provided a basis for defendant's conviction.
At common law a husband or wife was not permitted to testify for or against the other. 'This disqualification was based upon: (a) the supposed public policy of promoting and preserving domestic harmony; (b) the strong 'repugnance' against seeing a person convicted by the testimony of one 'sharing the secrets of his domestic life and living under his roof' (Vol. 8, Wigmore on Evidence, 3d Ed., Sec. 2227, p. 222, Sec. 2228, pp. 224, 225); and, (c) because of the temptations to perjury (State v. Willis, 119 Mo. 485, 488, 24 S.W. 1008).' State v. Kollenborn, Mo., 304 S.W.2d 855, 859. Present section 546.260 RSMo 1949, V.A.M.S. was 'enacted to relieve against certain fixed, common law disabilities; it was not enacted for the purpose of creating new disabilities.' State v. Kollenborn, supra, 304 S.W.2d 861[9, 10]. Section 546.260 is: 'No person shall be incompetent to testify as a witness in any criminal cause or prosecution by reason of being the person on trial or examination, or by reason of being the husband or wife of the accused, but any such facts may be shown for the purpose of affecting the credibility of such witness; provided, that no person on trial or examination, nor wife or husband of such person, shall be required to testify, but any such person may, at the option of the defendant, testify in his behalf, or on behalf of a codefendant, and shall be liable to cross-examination, as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case; provided, that in no case shall husband or wife, when testifying under the provisions of this section for a defendant, be permitted to disclose confidential communications had or made between them in the relation of such husband and wife.'
In the present case neither husband nor wife testified against the other. Here the witness' husband was not on trial. The defendant on trial was the witness' husband's co-indictee and until a severance was granted was also her husband's codefendant. We confine our ruling herein to the fact situation wherein one spouse is offered as a witness against the other's co-indictee at a trial in which the other spouse is not on trial but at a time when the charge against said other spouse is still pending.
There is a conflict of authority on the foregoing proposition as is well demonstrated by this quotation from 97 C.J.S. Witnesses Sec. 103, p. 512, and by an examination of the authorities there cited, particularly 70 C.J., p. 173, note 23: See also Wharton's Criminal Evidence, 12th Ed., Vol. 3, Sec. 777, p. 113.
It appears that the exact proposition has not been ruled in this state although the courts in State v. Burnside, 37 Mo. 343, and State v. McCarron, 51 Mo. 27, impliedly ruled the question. In each of those cases (one a robbery case, the other a murder trial) the question was whether a co-indictee's wife was a competent witness for her husband's co-indictee at such co-indictee's separate trial. The court in the Burnside case said (37 Mo. 349, 350):
The court in the McCarron case, supra, reiterated the last sentence of the foregoing quotation from the Burnside case.
It is apparent that if the reason assigned for the results in the Burnside and McCarron cases is valid, it is equally applicable to a fact situation like the instant one, wherein the co-indictee's wife's testimony is against her husband's co-indictee at such co-indictee's separate trial for robbery. We are of the opinion that the rule precluding one spouse from testifying against the other is not infringed by the fact alone that wife testifies against her husband's co-indictee at the separate trial of such co-indictee for an offense which does not require the joint act of those indicted for either to be guilty, at a time when the charge is still pending against her husband.
Defendant calls attention to the language in section 546.260 enabling a husband or wife to, 'at the option of the defendant, testify in his behalf, or on behalf of a codefendant * * *.' Defendant suggests that the foregoing language was inserted because the legislature recognized the rule (in some jurisdictions) stated in Wharton's Criminal Evidence, supra, Vol. 3, p. 113 that, 'If the husband or wife is charged in conjunction with the other defendants, the testifying spouse will not be allowed to testify to evidence directly tending to incriminate the other, even though a severance has been granted and the trial of the spouse postponed, * * *' and thus, says defendant, the...
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Smith v. State
...probative value and be relevant, because the money found is fairly marked or identical with the money taken.' See State v. Gyngard (Mo.), 333 S.W.2d 73, 90 A.L.R.2d 639; Commonwealth v. Locke, 335 Mass. 106, 138 N.E.2d 359. Most courts which have been confronted with the problem of the admi......
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State v. Chase, 53220
...sufficiently identified and was properly admitted in evidence. State v. McCormack, Mo., 263 S.W.2d 344, 346(3); State v. Gyngard, Mo., 333 S.W.2d 73, 79(10), 90 A.L.R.2d 639; State v. Page, Mo.App., 192 S.W.2d 577, 578(3). The defendant's contention is Following this initial statement are f......
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State v. Shabazz, 56122
...robbery had probative value to prove that defendant was one of the robbers. 46 Am.Jur., Robbery, § 48, p. 160. See State v. Gyngard, Mo.Sup., 333 S.W.2d 73, 79(10). However, the state was not limited, as appellant contends, to proof of the bare fact of appellant's possession of the credit c......
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State v. Barron
...was requested, the remark was in the nature of an admonishment to counsel, a matter within the discretion of the trial court. State v. Gyngard, Mo., 333 S.W.2d 73. The record implies that the admonishment was not totally without justification, and under the circumstances we see no abuse of ......