State v. Scott, 55045
| Decision Date | 09 November 1970 |
| Docket Number | No. 55045,No. 2,55045,2 |
| Citation | 459 S.W.2d 321 |
| Parties | STATE of Missouri, Respondent, v. William Thomas SCOTT, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Dale L. Rollings, Asst. Atty. Gen., Jefferson City, for respondent.
G. Carroll Stribling, Jr., St. Louis, for appellant.
Charged as a second offender, defendant was tried to a jury and found guilty of second degree burglary and stealing. The court assessed sentences of eight years for burglary and five years for stealing to be served concurrently.
Defendant contends he was denied a fair trial for several reasons, but the controlling issue submitted requires an answer to this question--after an accused has taken the witness stand to testify in his own behalf, and admitted the nature and number of his prior convictions, may the prosecutor inquire as to all of the details reference the prior offenses?
In the case now being reviewed, defendant was charged with having broken the glass entrance door of the Custer Heating Company at 4317 Duncan Avenue in the city of St. Louis on January 14, 1969, and entering and stealing therefrom, among other items, one adding machine. In disregard of counsel's advice not to testify, because of his prior record, defendant took the stand as a witness. Using the acceptable trial tactic of attempting to lessen the 'sting' of his prior record, defendant immediately admitted three prior convictions for burglary.
During cross-examination, the prosecutor, over objection and request for a mistrial, was allowed to inquire as to details of the previous offenses. Some of the questions, which defendant was called on to answer before the jury, were:
'Q. -- Isn't it a fact that in 1962 you were convicted of burglarizing the Continental Oil Company located at 5025 Manchester, by breaking the glass pane out of their front door?
Q. --You plead guilty to it because you were guilty?
Q. --Isn't it a fact, in connection with that burglary, you were also convicted of stealing an Underwood adding machine and a calculator from the Continental Oil Company?
Q. --Isn't it a fact, sir, that in 1962 you were convicted of burglarizing the White Supply Company, located at 4347 Duncan by breaking a window with your elbow?
Q. --Isn't it a fact that that White Supply Company is right down the block from the Custer Brothers?
Q. --In connection with that burglary weren't you also convicted of stealing a calculator and an adding machine from the White Supply Company?'
It is conceded by counsel that defendant, by taking the stand to testify in his own behalf, 'subjected himself to cross-examination as to the number and nature of his prior convictions of felonies,' but he submits that the 'questions asked by the prosecutor at the trial of this cause so wholly overstepped and went beyond the authority granted to it under the statute (Section 491.050) that reversible error resulted.' It is further submitted that, 'While the reports are replete with cases decided by this court concerning the ability of the prosecution to prove prior convictions when a defendant takes the stand, appellant has been unable to find any case from this jurisdiction dealing effectively with the specific issue raised in this appeal.'
We need not review the multitude of cases wherein an effort has been made to protect the rights of a defendant in his dual capacity as an accused and as a witness. State v. Beckner, 194 Mo. 281, 91 S.W. 892 (1906), considered the historical development of the present problem from the early time when a defendant was not permitted to testify. Related cases may be found in Missouri Digest, Witnesses, k Nos. 337(5) and 337(6).
Section 491.050 provides: 'Any person who has been convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer.' We do not believe the last clause of the statute--'the party cross-examining shall not be concluded by his answer'--provides any basis for sustaining the state's position. It merely provides that if there is a denial of the prior conviction, the state is not precluded from showing that in fact the witness had been convicted previously. As was said in State v. Himmelmann, Mo., 399 S.W.2d 58, 61, 'The statute is to be strictly construed * * *.'
The question is not entirely novel in this state as it was considered in State v. Spivey, 191 Mo. 87, 90 S.W. 81 (1905). However, the conclusion there reached is not keyed to the digest, perhaps for the...
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