State v. Matthews

• Decision Date: 20 December 1888
• Citation: 11 S.W. 1135,98 Mo. 125
• Parties: STATE v. MATTHEWS.
• Court: Missouri Supreme Court

11 S.W. 1135

98 Mo. 125

STATE v. MATTHEWS.

Supreme Court of Missouri.

December 20, 1888.

Indictment against Wiley Matthews, for murder. For majority opinion see 10 S. W. Rep. 144.

SHERWOOD, J., (dissenting.)

I shall confine my dissent herein to a single point. It is this: Section 1918, Rev. St., provides: "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: * * * provided, that no person on trial or examination * * * 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 co-defendant." As shown by the majority opinion, Mr. Hammond, one of the prosecuting attorneys, used this language in addressing the jury: "The defense put in no evidence except to contradict Mr. Green by Mr. Allen. Why are not the other defendants here to tell you all about this in behalf of this defendant? They know what occurred in the house, and they might have been put on the witness stand to testify in this case, and tell you what took place in the house." This language conveys the idea, and was intended to convey the idea that the defendant had it in his power to compel each of his co-defendants, nolens volens, to testify in his behalf. The case of State v. Chyo Chiagk, 4 S. W. Rep. 704, has been cited in the majority opinion as sustaining these remarks of the prosecuting attorney, but it does nothing of the kind, as will be presently shown. In that case the co-defendants were jointly indicted with the defendant, he being separately tried, and the court refused to permit his co-defendants, they being willing so to do, to testify in his behalf; and, in commenting on such ruling, it was held erroneous. This court, in discussing that ruling, and the section upon which it was supposed to be based, said: "Taking this section in its literal acceptation, it must be confessed that it only applies to `the person on trial or examination.' `Such a person,' i. e., `on trial or examination,' `may, at the option of the defendant, testify in his behalf or on behalf of a co-defendant.' Taken as it reads, this section would not only bear the meaning just attributed to it, but would allow a defendant `on trial or examination' to decide whether his co-defendant should testify in his behalf or not, which the legislature evidently did not mean." And yet, in the very teeth of this plainly-worded construction, — a construction of the statute necessary to the ruling which immediately followed; a construction so obvious that it commanded the assent of four of the members of this court, — it is now gravely asserted that this court sanctioned the view and laid down the...