State v. Taylor

• Decision Date: 20 May 1889
• Parties: The State v. Taylor, Appellant
• Court: Missouri Supreme Court

11 S.W. 570

98 Mo. 240

The State v. Taylor, Appellant

Supreme Court of Missouri

May 20, 1889

Appeal from St. Louis Criminal Court. -- Hon. J. C. Normile, Judge.

Reversed and remanded.

D. H McIntyre for appellant.

(1) The court erred in permitting Presley N. Jones to make the opening statement to the jury and conduct the prosecution the circuit attorney and his assistant not being interested and not having been of counsel for defendant or the prosecuting witness, and neither being absent or sick. R. S 1879, secs. 513, 518, 519, 522 and 1908; County v. Clay, 4 Mo. 562; State v. Honig, 78 Mo. 249. It was also error to refuse to require Mr. Jones to be sworn to conduct the prosecution fairly and impartially. Sec. 6, art. 14, Con. 1875. (2) The court should not have permitted the prosecution to read in evidence the record of the defendant's conviction on charge of violating ordinance fourteen thousand of the city of St. Louis, for the purpose of affecting defendant's credibility as a witness. Defendant had been pardoned and the said record was thereby rendered irrelevant and immaterial. Ex parte Garland, 4 Wall. 333; U. S. v. Klein, 14 Wall. 128; Jones v. Board, 56 Miss. 766; State v. Foley, 15 Nev. 64; Leyman v. Latimer, 3 Exch. D. 15. (3) It was error to refuse to allow defendant to read in evidence his pardon of the offense the record of which had been read by the prosecution for the purpose of affecting defendant's credibility as a witness. Whart. Crim. Pl. and Pr., secs. 523, 524; Ex parte Garland, 4 Wall. 333; U. S. v. Klein, 13 Wall. 128; Jones v. Board, 56 Miss. 766; State v. Foley, 15 Nev. 64; Leyman v. Latimer, 3 Exch. D. 15. (4) The statement made by Mr. Jones that defendant was a pimp was unsupported by the slightest evidence, was calculated to prejudice defendant's case, and was gross misconduct on the part of one pretending to act in the place of the public prosecutor. State v. Mahly, 68 Mo. 315; State v. Lee, 66 Mo. 167; Ritter v. Bank, 87 Mo. 574; State v. Leabo, 89 Mo. 247; Miller v. Dunlap, 22 Mo.App. 97; Gibson v. Zeibig, 24 Mo.App. 65.

John M. Wood, Attorney General, for the State.

(1) Defendant having offered himself as a witness, it was competent for the state to introduce the original papers and record of his conviction in the police court for the purpose of affecting his credibility. State v. Kelsoe, 76 Mo. 505, and authorities cited; State v. Clinton, 67 Mo. 370; 1 Greenl. Ev., secs. 457-460. And there is nothing in the objection that they were not authenticated. They were the original docket and papers, proven to be so by the clerk to whose custody they belonged. 1 Greenl. Ev., sec. 513. (2) The pardon offered to be introduced by defendant was subsequent to the commission of the offense for which he was on trial. It had not the effect to restore to him his credibility as a witness, and was properly excluded by the court because of immateriality and irrelevancy. Curtis v. Cochran, 50 N.H. 242; U. S. v. Jones, 2 Wheeler's Crim. Cases, 451. (3) There was no error in permitting Mr. Jones, an attorney of the bar, to assist in the prosecution or to make the closing address. State v. Sweeney, 93 Mo. 38; State v. Griffin, 87 Mo. 608; State v. Hamilton, 55 Mo. 520; State v. Stark, 72 Mo. 37. (4) The remarks of counsel for the state in his closing argument, aside from being warranted by the evidence and the remarks and conduct of defendant's counsel, were not of such a character as to constitute grounds for reversal. State v. Zumbunson, 86 Mo. 111; State v. Emory, 79 Mo. 461.

Brace, J. Sherwood, J., absent, and Barclay, J., dissents.

OPINION

Brace, J.

The defendant was tried, convicted and sentenced to the penitentiary for three years, in the criminal court of St. Louis on an indictment for assault with intent to kill.

Presley N. Jones, an enrolled member of the bar of that court, was permitted, over the objection of the defendant, to make the opening statement, and to assist in the prosecution of the case, the prosecuting attorney and his assistant both being present and able to conduct the same, and the action of the court in this behalf is assigned for error.

I. This point must be ruled against the defendant on the authority of State v. Robb, 90 Mo. 30, 2 S.W. 1; State v. Stark, 72 Mo. 37, and State v. Hamilton, 55 Mo. 520. There is no conflict between the ruling in these cases and that in the case of State v. Honig, 78 Mo. 249. The only point of practice ruled in the latter case was that if the counsel for the prosecution waived the opening, he should not be permitted to make the closing argument to the jury.

II. After the objection to Mr. Jones making the opening statement had been overruled, the defendant moved the court that if Mr. Jones be permitted to prosecute, he be sworn to do the same fairly and impartially and without fear and impartiality and without fear, favor or prejudice. This motion the court overruled and its action in so doing is also assigned as error, and it is insisted here that the court should have required Mr. Jones to be sworn under section 6, article 14, of the constitution. It is a sufficient answer to this position to say, that the permission of the court to Mr. Jones to prosecute did not constitute or commission him an officer of the state, and that we know of no law organic or statutory, nor yet any practice of court authorizing or requiring an oath to be administered to an attorney under such circumstances.

III. After the defendant had testified in his own behalf, the state was permitted, over the objection of the defendant, to introduce in evidence the original record of defendant's conviction of the violation of a city ordinance in frequenting a bawdy house. On the trial of one for a criminal offense, it is not permissible to show in evidence that the defendant has been guilty of another and independent crime, totally disconnected from the one for which he is on trial. When, however, the defendant goes upon the stand as a witness in his own behalf, his credibility may be impeached to the same extent and in the same manner as any other witness, except that he cannot be cross-examined as to any matter not referred to by him in chief. State v Buella, 89 Mo. 595, 1 S.W. 764; State v. Palmer, 88 Mo. 568; State v. Clinton, 67 Mo. 380. Under the statute prior to the revision of 1879, persons convicted of arson, burglary, robbery or larceny in any degree or any felony were declared incompetent to be sworn as a witness. G. S. 1865, p. 791, sec. 66. This disqualification was omitted from the revision of 1879, and since conviction of an infamous crime did not render a witness incompetent, but in two cases that have come to this court, it has been held that such conviction (for larceny) might be given in evidence to affect the credibility of the witness. State v. Kelsoe, 76 Mo. 505; State v. Loehr, 93 Mo. 103, 5 S.W. 696. These cases however are not authority for the introduction of evidence of a conviction of a mere misdemeanor not infamous at common law or ever declared to be so by statute. The general moral character of one who has been convicted of an infamous crime may well be considered so degraded as that but little credit ought to be given to his testimony, but it is not necessarily so of one who has been convicted of a mere...