State v. Jefferson

• Decision Date: 31 October 1882
• Citation: 77 Mo. 136
• Parties: THE STATE v. JEFFERSON, Appellant.
• Court: Missouri Supreme Court

77 Mo. 136

THE STATE

v.JEFFERSON, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Jackson Criminal Court.--HON. H. P. WHITE, Judge.

AFFIRMED.

R. J. Haire for appellant.

D. H. McIntyre, Attorney General, for the State.

NORTON, J.

The defendant was indicted for murder in the first degree, at the November term, 1881, of the criminal court of Jackson county, for killing one William Mulholland. He was tried at the January term, 1882, of said court, which resulted in his conviction for murder in the second degree, his punishment being assessed at imprisonment in the penitentiary for life. His motion for new trial being overruled he brings the case to this court on appeal, and assigns for error the action of the court in admitting and rejecting evidence and in giving and refusing instructions.

It is argued by defendant's counsel that the court erred in admitting the evidence of defendant's wife, (she being dead,) given before the justice of the peace on the preliminary examination of defendant, and before the court at Independence on a former trial of defendant, inasmuch as it did not satisfactorily appear that she testified willingly. The question thus presented cannot be considered by us, for the reason that it does not appear from the record that the evidence objected to was admitted or received on the trial, but on the contrary, it is stated expressly in the bill of exceptions that her evidence does not constitute any part of the transcript.

1. PRACTICE, CRIMINAL: defendant's testimony.

It appears from the bill of exceptions that on a former trial of this cause defendant offered himself as a witness and was examined. The evidence given by him on such trial, after being identified by the stenographer who took and transcribed it, was offered by the State on the last trial. This evidence was objected to as being incompetent. The objection was overruled, and we think properly under the decision of this court in the case of the State v. Eddings, 71 Mo. 545, where it was distinctly held that such evidence was competent.

2. WITNESS: competency of child: practice in supreme court.

The State offered as a witness Henry Jefferson, a boy under ten years of age. The defendant objected to his introduction on the ground of his age. The statute upon this subject provides that a child under ten years of age, who appears to be incapable of receiving just impressions of the facts respecting which the child is examined or of relating them truly, shall be incompetent to testify as a witness. The record before us discloses the fact that the child was about six years old, and that the trial court, after testing his capacity by a full examination of him, admitted him as a witness. The examination as made is not preserved in the record, it only appearing that upon a full examination he was adjudged to be competent. It has been held by this court in the case of the State v. Scanlan, 58 Mo. 204, that when a child under the age of ten years is presented as a witness, and the trial judge, upon personal inspection and oral examination, finds as a fact that the child is competent to testify, that such finding is not subject to review by this court. This was held in a case where the examination made by the judge as to the capacity of the child was fully detailed in the record, and if his finding in such a case is not the subject of review, his finding in cases where the record shows, as in this case, that it was based on a thorough examination which is not detailed nor preserved in the record, most certainly cannot be reviewed,...