State v. Steifel

• Decision Date: 12 October 1891
• Citation: 106 Mo. 129,17 S.W. 227
• Parties: STATE v. STEIFEL.
• Court: Missouri Supreme Court

17 S.W. 227

106 Mo. 129

STATE v. STEIFEL.

Supreme Court of Missouri, Division No. 2.

October 12, 1891.

CRIMINAL LAW — ACCOMPLICE AS WITNESS — SEPARATION OF JURY.

1. Under Rev. St. Mo. 1889, § 4097, providing that, when an indictment is found, the names of all the material witnesses must be indorsed on the indictment, but other witnesses may be sworn by the state, the fact that the name of one jointly indicted with defendant was not indorsed on the indictment as a witness does not render him incompetent, where it does not appear that the prosecuting attorney or the grand jury knew of his willingness to testify prior to the entering of a nolle as to him during defendant's trial.

2. To render the co-defendant a competent witness, it was not necessary that he be acquitted or discharged before defendant was put on trial; it was sufficient that the indictment was dismissed as to him prior to the closing of the state's evidence, which is expressly permitted by Rev. St. Mo. 1889, § 4217.

3. Under an indictment for stealing $100 from the person in the night-time, there may be a conviction of simple grand larceny.

4. Under the rule that, when a separation by the jury in a felony case before retirement is shown, the prisoner has made a prima facie case for a new trial, which must be overcome by an affirmative showing on the part of the state that the jurors were not subjected to improper influence, the refusal of the court, on a motion for a new trial, to hear competent evidence which defendant offered to prove that during a recess one of the jurors, in violation of an order of the court, left the others, is ground for reversal.

Appeal from circuit court, Butler county; JOHN G. WEAR, Judge.

Samuel Steifel was convicted of stealing, and appeals. Reversed.

D. H. McIntyre, for appellant. John M. Wood, Atty. Gen., for the State.

GANTT, P. J.

At the November term, 1887, of the circuit court of Butler county, the defendant and one George Clevlen were jointly indicted for stealing $100 from the person of Patrick Harmon in the night-time on 25th of August, 1887. At the adjourned November term, on 24th of February, 1888, on motion of said Clevlen, a severance was granted, and separate trials awarded said defendants. At the May term, 1889, defendant Steifel was duly arraigned, a plea of not guilty entered, and the cause tried before a jury, which resulted in a verdict of guilty, in which his punishment was assessed at imprisonment in the penitentiary for three years. He filed his motion for new trial in due time, and, upon the court overruling it, he gave his recognizance, and appealed to this court. The errors assigned by appellant are — First, the action of the circuit court in permitting George Clevlen to testify in behalf of the state after the prosecuting attorney had, by leave of the court, entered a nolle prosequi as to said George Clevlen, and before the state had closed its evidence against defendant; secondly, because the court overruled defendant's demurrer to the evidence; third, because the court refused to grant a new trial on account of the misconduct of the jury in separating at recess without the consent of defendant, and contrary to the orders of the court; fourth, errors in giving instructions to the jury.

Considering these assignments in the order in which they are made in appellant's brief, we proceed to an examination of the first error alleged. It appears from the record that after the trial of the defendant had commenced, and after three of the state's witnesses had been examined, the prosecuting attorney, by leave of the court, entered a nolle prosequi as to George Clevlen, who had been jointly indicted in this cause with defendant; and thereupon said George Clevlen was discharged from any and all prosecution under said indictment, and was then called as a witness in behalf of the state. Defendant objected to said Clevlen testifying because he was incompetent: (1) Because his name was not indorsed on the indictment; (2) because, being a co-defendant, he had not been acquitted or discharged till after this defendant had been put upon his trial and defense, and to permit him to testify would work a surprise on defendant. The fact that Clevlen's name was not indorsed on the indictment did not render him incompetent. The statute requiring the names of all...