State v. Jackson

• Decision Date: 12 October 1891
• Citation: 17 S.W. 301,106 Mo. 174
• Parties: The State v. Jackson, Appellant
• Court: Missouri Supreme Court

17 S.W. 301

106 Mo. 174

The State v. Jackson, Appellant

Supreme Court of Missouri, Second Division

October 12, 1891

Appeal from Cooper Circuit Court. -- Hon. E. L. Edwards, Judge.

Affirmed.

Draffen & Williams for appellant.

(1) The court erred in permitting James Murray to testify in favor of the state, and against the defendant Jackson. The indictment is a joint one against witness and Jackson, and the state had no right, under the statute, to swear him over the objections of the defendant. R. S. 1889, secs. 4217, 4218; State v Chio Chiagk, 92 Mo. 406. (2) The court committed error in refusing to give defendant's instruction, numbered 2 as originally asked by him. There was not a scintilla of evidence of any corroboration of Murray's testimony. There was no evidence outside of the accomplice's testimony that connected Jackson in any manner with entering the billiard hall. State v. Chio Chiagk, 92 Mo. 416; Whart. Crim. Ev., sec. 442. (3) The only evidence that the state offered, for the purpose of corroborating the testimony of Murray, were the facts that Jackson, at the time of the burglary, owned or had in his possession a pair of gum boots and that next morning after the burglary some tracks, apparently made with gum boots, were found in alley near billiard hall, and that Jackson, on night of burglary, was seen at James Carter's, on Spring street, about the hour of twelve o'clock. Do these facts in any way connect Jackson with the burglary, or do they in any manner corroborate the evidence of Murray (a confessed thief)? Where there is no evidence of a fact, the court should, as a matter of law, so tell the jury.

John M. Wood, Attorney General, for the State.

(1) Where the case as to one defendant jointly indicted with another is disposed of by plea of guilty, or by verdict and conviction or acquittal, he is a competent witness for the other. It appeared that Murray had pleaded guilty. His testimony was, therefore, competent. State v. Hunt, 91 Mo. 491. (2) No other objections were saved as to the admission or rejection of any other testimony in the cause. (3) The only complaint in the motion for a new trial as to the instructions is that the court refused to declare the law as asked by defendant. The only instruction asked by defendant, which was refused, was instruction, numbered 2. This was clearly erroneous, for the reason that it told the jury that there was no evidence corroborating that of James Murray, when, in fact, there was testimony introduced which tended to show that Jackson was guilty, and which corroborated the statement made by his confederate, Murray. The instruction given by the court as to the testimony of an accomplice was the proper one to give in the case. State v. Walker, 98 Mo. 95, and cases cited.

OPINION

Thomas, J.

Jackson and James Murray were indicted in the Cooper county circuit court, for burglary and larceny. Jackson, on a separate trial had, was found guilty of both crimes, and sentenced to imprisonment in the penitentiary for five years, and he prosecutes this appeal.

I. The state offered James Murray as a witness in the case. Defendant Jackson objected to his testifying, because the indictment was against both for the same offense. The court overruled the objection, and Murray gave his testimony in the case, and this is urged in this court for error. The record shows that Murray pleaded guilty to the charge on the thirteenth day of November, 1890, and after the record of this plea it is added: "And afterwards, to-wit, at said term of court, and on the thirteenth day of November, 1890, the following proceedings were had, to-wit." Then follows the record of Jackson's trial.

It is contended, first, that the record fails to show that Murray's plea of guilty was made before he was sworn as a witness, and, second, if it does he was still incompetent as against Jackson. We think it fairly inferable from the record that Murray entered his plea of guilty prior to the time he was offered and sworn as a witness. The plea was entered of record first, and then follows the entry that afterwards the trial of Jackson was proceeded with. If this plea had not in fact been made when Murray was sworn, he was not a competent witness, and should not have been permitted to testify. State v. Chyo Chiagk, 92 Mo. 395, 4 S.W. 704. Hence, we will presume, in the absence of anything in the record to the contrary, that the plea was made and entered first.

It is argued that the copy of this plea is not properly in this record, and, therefore, cannot be considered by this court in the determination of this question. We do not concur in this contention. The indictment is a joint one against both Jackson and Murray, and this plea of guilty made by Murray is a part of the record in the same case, no severance having been asked or ordered, and the court will take judicial notice of its own orders in the same case. State v. Bowen , 16 Kan. 475; Minor v. Stone , 1 La. Ann. 283; Pagett v. Curtis , 15 La. Ann. 451; Brucker v. State , 19 Wis. 539; Jordan v. Circuit Court, 69 Iowa 177, 28 N.W. 548; Withers v. Gillespy, 7 S. & R. (Pa.) 10; Dawson v. Dawson, 29 Mo.App. 521. But it is insisted that, conceding this plea to have been entered first, still Murray was not a competent witness for the state. We have no statute declaring a codefendant, who has pleaded guilty or been convicted, a competent witness in behalf of the state, and we are relegated to the common law to determine Murray's competency. Bishop lays down the correct rule thus: "Whereupon the law is, that a joint defendant cannot be a witness for or against the others, even on separate trial, till the case is disposed of as to him by a conviction or acquittal or by a nolle prosequi. But judgment on the conviction need not be rendered; therefore, the defendant who is to testify pleads guilty, and then testifies." 1 Bish. Cr. Proc. [3 Ed.] sec. 1166; Com. v. Smith, 12 Metc. 238; Whar. Am. Cr. Law, sec. 794; 1 Phil. Ev. [4 Amer. Ed.] 64-5; Whar. Crim. Ev. [9 Ed.] sec. 439. Murray was a competent witness, and the court committed no error in allowing him to testify in behalf of the state.

II. The next contention is, that the court erred in giving and refusing instructions. At the instance of Jackson the court instructed the jury that, "The testimony of an accomplice in a crime, that is, a person who aids, assists, encourages and abets in committing the crime, is admissible; yet, the evidence of such a person, when not corroborated by the testimony of some person or persons, not implicated in the crime, as to the guilt of the defendant, ought to be received with great caution by the jury, and they ought to be fully satisfied of its truth before they should convict the defendant on such testimony."

Jackson asked the court to give, and the court refused to give, the following: "The jury cannot find the defendant, Walker Jackson, guilty on the testimony alone of James Murray, the codefendant in this case, unless his testimony has been corroborated by the testimony of other witnesses, that Jackson actually participated in the breaking and entering the billiard hall of Joseph Barth, as stated in the indictment, and there is no evidence of...