State v. Mintz

• Decision Date: 13 November 1912
• Citation: 245 Mo. 540,150 S.W. 1042
• Parties: STATE v. MINTZ.
• Court: Missouri Supreme Court

150 S.W. 1042

245 Mo. 540

STATE v. MINTZ.

Supreme Court of Missouri, Division No. 2.

November 13, 1912.

CRIMINAL LAW (§ 785)—CAUTIONARY—INSTRUCTIONS— CREDIBILITY OF WITNESSES—COINDICTEE.

The cautionary instruction on the ground of interest, as to the testimony of defendant or the wife or husband tesfifying for defendant, authorized by Rev. St. 1909, § 5242, making them competent witnesses for defendant, is not authorized as to the testimony of a coindictee of defendant, not on trial, but testifying for him.

Roy, C., dissenting.

Appeal from Circuit Court, St. Louis County; Jno. W. McElhinney, Judge.

Simon Mintz was convicted, and appeals. Reversed and remanded.

Grant Gillespie and Thos. B. Harvey, both of St. Louis, and A. E. L. Gardner, of Clayton, for appellant. Elliott W. Major, Atty. Gen., and Campbell Cummings and John M. Dawson, Asst. Attys. Gen., for the State.

BLAIR, C.

Convicted of burglary in the second degree and larceny, defendant was by the circuit court of St. Louis county sentenced to serve four years in the penitentiary, and has appealed.

Defendant was indicted jointly with Michael O'Connor and George Meyers, but was separately tried. Meyers, who had not yet been put upon his trial, testified in defendant's behalf, denying any conspiracy with defendant, or any other person, to commit the crime charged, denying complicity in it, and also denying any personal acquaintance with defendant. The state's theory was, and its evidence tended to show, that the three coindictees, with another, conspired to commit the offense, and that Meyers and O'Connor did the actual breaking, entering, and stealing, the part of Mintz being to gather up the goods thrown from a moving car by them.

With respect to Meyers' testimony, the court, over defendant's objection, gave the jury the following instruction: "The witness George Meyers, although jointly inflicted with the defendant Samuel Mint; is a competent witness on behalf of said defendant, Mintz; but the fact that he is jointly indicted and his interest, if any, in the result of the case, may be considered by you in determining the credibility of his testimony. Yet, as a whole, you should receive and consider his testimony like that of any other witness, and subject to the same rules as explained in other instructions." It is earnestly insisted that the giving of this instruction constituted reversible error. An instruction identical in character, but in terms applicable solely to a defendant on trial, was held not erroneous in State v. Maguire, 69 Mo. loc. cit. 202, 203, on the ground that there was no impropriety in giving it, since "men of sufficient intelligence to sit upon a jury need not be told that the fact that one is on trial for crime may be considered by them in determining the credit to be given by them to his testimony." On the authority of this decision, like instructions have been held innocuous in numerous subsequent cases. As late as State v. McDonough, 232 Mo. loc. cit. 228, 134 S. W. 547, it was said by this court, with respect to a similar instruction: "This instruction has been given in criminal cases in the courts of this state for over 30 years. It has been considered and approved by this court in many cases, and we are unwilling to hold that the trial court committed reversible error in giving it in this case." The correctness of these decisions is not assailed by counsel, but `it is urged that, whether sound or otherwise, they are not in point because the decision in the Maguire Case, upon which the series is founded, was grounded upon the statute (section 5242, R. S. 1909), which removed the ban of incompetency from the testimony of a defendant in a criminal case, while, it is declared, no statute is available as the basis of a like rule and like instruction in the case of a codefendant, not put upon his trial, who testifies for a defendant jointly indicted with him. At common law "one of two or more joint defendants cannot be a witness for or against another, even on a separate trial, until the case as to himself is disposed of, by plea of guilty, or a verdict of conviction or acquittal or a discharge on a plea in abatement." State v. Chyo Chiagk, 92 Mo. loc. cit. 402, 4 S. W. 704, quoting 1 Bishop, Crim. Prac. § 1020. In that case (92 Mo. 407, 4 S. W. 704 et seq.) it was held that the identical clause of the identical section (then section 1918, R. S. 1879) which rendered the defendant competent as a witness, and which had been mentioned in discussing the instruction as to the defendant complained of in the Maguire Case, was the section and clause which changed the common-law rule, and rendered a codefendant competent to testify in behalf of one jointly indicted with him. The court in that case (92 Mo. loc. cit. 407, 408, 4 S. W. 707), in order to avoid absurdity, construed the words, "person on trial or examination," to include a codefendant not on trial or examination, and has uniformly adhered to that construction, to which silence has for over two decades evidenced legislative consent. That construction, nevertheless, does not destroy all difference between a defendant on trial and a codefendant testifying for him, nor does it increase or diminish the interest of either in the result of the trial. The Maguire Case simply holds harmless the instruction there considered, and later cases go little further. The practically invariable appearance of that instruction (as to the defendant on trial) in transcripts in criminal cases is somewhat singular in view of the fact that its uselessness is all that saves it from condemnation, and in view of the further fact that, when it...