State v. Mix

• Decision Date: 31 October 1851
• Citation: 15 Mo. 153
• Parties: THE STATE OF MISSOURI v. MIX.
• Court: Missouri Supreme Court

15 Mo. 153

THE STATE OF MISSOURI

v.MIX.

Supreme Court of Missouri.

October Term, 1851.

APPEAL FROM ST. LOUIS CRIMINAL COURT.

BLENNERHASSETT & SHREVE, for Appellant. I. It is insisted by the defendant that the evidence does not show any legal guilt in the defendant, Mix. There is no evidence in this case, which shows that defendant knew that Williams was passing counterfeit money, nor even raises a legal presumption of his participation. He did no act, nor said one word to Williams which tends to show his participation or countenance to aid or support Williams. He ran away, or, as other witnesses for the State say, moved away when the officers came up, to avoid being arrested--a movement not at all inconsistent with innocence; and it is urged, that the jury have, from prejudice and errors committed by the court, in the trial, erred in their verdict, and therefore did the court in refusing a new trial. II. The court erred in permitting the jury that tried this cause, to separate during the progress of the trial. The record shows that consent was given (if consent can be given, which, it is submitted, cannot be given) only at the court-room the day the trial commenced. The record also shows that no consent was given to the subsequent separation of the jury, although several adjournments took place during the trial, to which the defendant objected, as will be seen by the subsequent order of the court that they be kept together. Consent that they might separate, cannot be construed into a perpetual separation; for since the last separation, obvious reasons may have impressed the defendant that they should not again separate. The Supreme Court authoritatively settled this point, and declared that in all cases of felony, if a jury is permitted to separate after they are sworn, the judgment will be reversed; and they proceed upon the idea, not that the jury have been tampered with, but that they may have been tampered with--that they have been exposed to the thousand influences, that contact with the world may produce. See McLean v. The State, 8 Mo. R. 153. III. The counsel for the defendant think that the court erred in permitting evidence to go to the jury which is admitted to be illegal, and then attempting to cure the error by instructing the jury to disregard the same. Its prejudicial effect cannot be cured by instructions from the court. The State was permitted, in this case, despite the objection and exception of defendant, to prove that defendant, Mix, told witness some years before, that he (defendant) had been in the Kentucky penitentiary. The court also permitted the State to show, by witness, that the person jointly indicted with the defendant, on the day previous to that on which this offense is charged, passed counterfeit money, when the defendant was not about at all; nor was the jury even instructed to disregard the evidence. Is it any wonder that the defendant was convicted? The first instruction supposes, that if defendant, Mix, was in Williams' company, and knew that Williams was passing counterfeit money, and was near enough to render him assistance, the intent to defraud may be inferred, and this furnishes sufficient evidence upon which to convict. It is thought that this instruction is demurrable, that admitting all that is supposed, the deduction is wrong. The instruction of the court, that the jury can find the defendant guilty without affixing his punishment, is erroneous. Rev. Code 1835, p. 493; McGee v. State, 8 Mo. R. 495. The court erred in refusing the first instruction asked by defendant, to-wit: “If the jury believe from the evidence, that the witness, McAfee, willfully testified falsely to any material fact in the case, they are authorized to discredit and reject the whole of his testimony.” The court attempted to supply the want of this instruction by one given by himself, in which he substantially instructs the jury, that they may believe all that the witness says which is not inconsistent with the testimony (see instruction of the court). This instruction does not contain the law; at least, it is very mysterious, not to say absurd. The law declares that a witness' entire statement may be discredited, and, as the defendant insists, requires it to be discredited; that the bond of faith is broken, and no reliance can be given to other statements made by a witness who has once testified falsely and knowingly so. See 1 Stark. Ev., 582, where this language occurs: “As credit of a witness is founded on experience, it follows that a witness who gives false testimony as to one particular, cannot be credited as to any--upon the principle falsus in uno, falsus in omnibus.” Now it will be observed, that the witness McAfee for the State, was the last witness introduced, and that without his testimony the State did not esteem the case as made out, but relied upon his testimony. This witness was indicted for the same offence. In his cross-examination he admits that he has been engaged in the counterfeiting business and substantially states, that under promise of discharge from his own indictment, he testifies against the defendant. A nolle prosequi was entered as to him, and he then testified to several facts in the case, which the witnesses for the defendant contradict, and hence the pertinence of the instruction.

The court is also requested to remark, that the instruction which is said to have been given “in lieu” of the instruction asked by the defendant, does not appear in the record at all; but after the bill of exceptions was made out, the court directed the clerk to make the margal note, that such an instruction, ““in substance,” was given by the court. If such an instruction was given, it does not appear anywhere among the papers of the case.

The counsel think the second instruction asked by defendant, contains the law of accessories. It is insisted that the court erred in refusing the co-defendant, Williams, to testify. A severance was asked in time, and granted by the court, who, however, has no discretion about it. He was tried separately, and yet the court would not permit the co-defendant to testify on the part of the defendant. This point is conclusively settled in the case of Garrett v. The State, 6 Mo. R. 1. This decision has been acquiesced in, since it was made, to the present time; and the court below, after full argument upon the point, for a long time practiced upon it. It would seem that modesty should justify the Hon. Judge of the St. Louis Criminal Court, whose experience and learning all admit to be quite equal to that of the Hon. Judge of the Supreme Court, who delivered the opinion in 6 Mo. R., in obeying that decision, as an inferior court; but in delivering the opinion in this case, as in all other cases, he expressed himself “to have no doubt about the point.”

The counsel for the defendant are aware that the decisions conflict, both in Europe and America; but think that quite as numerous an array of authorities can be furnished in support of the practice as against it. The decision in 13 Mo. R. 30, McMillan v. The State, discusses the question incidentally. It was not a point in the case nor is it decided. In the syllabus to the case, it is said to be only discussed. His late Honor, who has since retired to the shades of private life, Judge NAPTON. traveled out of the case to discuss the question not before him; and after discussing the question failed to decide it, and declares that the question is not raised before him, and that he referred to it “only merely to show the unfavorable position such a witness must occupy at best;” thereby conceding the competency, but discussing the credibility of the witness. The chancery practice of discovering testimony has been engrafted upon our administration of justice in civil cases; but this court is called upon to retrograde in the practice of elucidating testimony in criminal cases. We respectfully submit, that the ends of justice require the enforcement of the law as it now stands, expounded by the Supreme Court in 6 Mo. R. See also, on this point, Greenl. Ev.; Rex v. Ellis, 1 McNally, 55; Russell, 597; Jones v. State of Georgia, 1 Kelley, 617; Roscoe's Ev.; comments on Lafone's case, 5 Esp. 154; 1 Chitty's Crim. L. 605; Roscoe, 118; 2 Russ. 597; 2 Hale, 281; 1 Hale, 305; United States v. Henry, 4 Wash. R. 429.

LACKLAND, for The State. The court did not err in refusing to admit as evidence on the part of the defendant, the conversation between defendant and his co-defendant, Williams. It was introduced by the State, and was not a part of the res gestae, it having occurred at another and different place. The court did not err in overruling the objection to the question, as to what was found in the possession of the co-defendant, Williams; because the evidence clearly shows, that they were acting in concert, and the possession of one is the possession of both 2 Greenl. Ev. § 111; American Fur Company v. United States, 2 Peters, 358, 365; Crowningshield's case, 10 Peck, 497; Rex v. Hunt, 3 Barn. & Ald. 566; 1 East's P. C. 97, § 38; Nichols v. Dowding, 1 Stark, 81; Gardner v. State, 3 Scam. 87. The court did not err in allowing the State to ask the question, whether the defendant had been previously seen with counterfeit money of the same kind, as set out in the indictment. Nor did the court err, in allowing testimony, to prove that defendant and Williams had passed counterfeit money of the same character, previously and subsequently to the passing of the bill set out in the indictment. This testimony was introduced, to show guilty knowledge, and for such purpose was competent: State v. McAlister, 11 Shep. Maine R. 139; Thatcher's Crim. Cases, 293, 47; State v. Van Hereton, 2 Penn. R. 672; Hess v. State, 5 Ohio R. 5; Commonwealth v. Martin, 2 Leigh. 745; State v. Antoine, 2 Cond. S. C. R. 776. The testimony of witness, McAfee, showing that the defendant had been in the Kentucky State prison, was excluded by an instruction,...