State v. Rockett

• Decision Date: 31 October 1885
• Citation: 87 Mo. 666
• Parties: THE STATE, Appellant, v. ROCKETT,
• Court: Missouri Supreme Court

87 Mo. 666

THE STATE, Appellant,

v.ROCKETT,

Supreme Court of Missouri.

October Term, 1885.

Appeal from St. Louis Court of Appeals.

REVERSED.

B. G. Boone, Attorney-General, for the state.

(1) The instruction as to a reasonable doubt covered the whole case, and the instruction as to an alibi was as full, fair and complete as the evidence justified or the law warranted. The defence of an alibi is mere ordinary evidence in rebuttal, and it should be tested as other evidence. 1 Bish. Cr. Pro. (3 Ed.) sec. 1062; State v. Jennings, 81 Mo. 190. (2) It was sought by the state, on cross-examination, to show that Cassiday had been convicted for stealing. He denied it, and the best evidence possible--the record of his conviction--was introduced to impair his credit for veracity. The witness was not an impartial one. He was asked the question, on cross-examination, and the record of his conviction was subsequently introduced, not for the purpose of contradicting him, but to impeach his credit for veracity. This was proper. 1 Greenl. Ev. (8 Ed.) sec. 375; 1 Greenleaf's Ev. (12 Ed.) sec. 459; Ros. Crim. Ev. (7 Ed.) 102; Garrett v. State, 6 Mo. 1; State v. Shields, 13 Mo. 236; State v. Grant, 79 Mo. 113. The record of the witness' conviction was admissible even if he had not been questioned as to such conviction by the state. State v. Kelsoe, 76 Mo. 505.

Gist Blair for respondent.

(1) The trial court committed error in failing to apply, by an instruction, the question of a reasonable doubt to the defence of alibi. State v. Lewis, 69 Mo. 92. A trial court, whether requested or not, must, in a criminal case, instruct the jury as to the law. State v. Banks, 73 Mo. 592; State v. Branstetter, 65 Mo. 149. (2) A new trial should have been granted, because of newly discovered evidence. (3) The court erred in permitting the attorney for the state to ask defendant and witness Cassiday, on cross-examination, if they had been convicted of vagrancy and larceny, and then afterwards to introduce record evidence in relation to such vagrancy and larceny to discredit them. 1 Greenl. Evid. (14 Ed.) secs. 448-9; Stokes v. People, 53 N. Y. 164.

SHERWOOD, J.

Defendant was indicted for robbery in the first degree, found guilty and sentenced accordingly. He appealed to the St. Louis court of appeals, where the judgment was reversed, and the state appeals here.

I. I find no fault with the instructions. One was given in respect of the alibi of the defendant, and then a general instruction was given as to reasonable doubt. This last covered the whole case, and in terms applied to all the evidence in it. It was not necessary, and it would be without parallel in criminal practice to link, seriatim, the idea of reasonable doubt to every atom of evidence in the cause. Evidence of an alibi is only ordinary evidence in rebuttal. 1 Bish. Crim. Proc., secs. 1062, 1066. And is to be treated of in the instructions in the same way as is other evidence of like sort. State v. Jennings, 81 Mo. 185. For these reasons, The State v. Lewis, 69 Mo. 92, does not apply here, for there, no instructions on alibi were given.

II. The admissibility of questions asked defendant and one of his witnesses Cassiday on cross-examination. as to whether they had been convicted of vagrancy and of larceny is a point not to be considered, for the reason that no objections were made or exceptions saved to these questions. Greenleaf, in relation to “infamy proved only by judgment,” says, in substance, that the guilt of the party may be shown by oral evidence, or even by his own admission, if the evidence be not objected to. 1 Greenl. Evid., sec. 375; State v. Rugan, 68 Mo. 214. No objection having been taken to the aforementioned questions, the case stands here precisely as if no such evidence had been introduced or questions propounded. This being so, the subsequent admission over the objection of the defendant of the records of the police court, showing such convictions, cannot be properly assigned for error, since those records were perfectly competent evidence of the convictions therein mentioned, and the only competent evidence of the fact of previous conviction. Ib., sec. 457. Oral evidence of the party's guilt, or of his admission to that effect, or even his plea of guilty, which has not been followed by a judgment, going only to the credibility of the witness, and not his competency. Ib., sec. 375, supra.

III. But one point remains to be discussed, and that is newly discovered evidence,...