State v. Ward

• Decision Date: 31 October 1851
• Citation: 15 Mo. 28
• Parties: THE STATE OF MISSOURI v. ROBERTS ALIAS WARD.
• Court: Missouri Supreme Court

15 Mo. 28

THE STATE OF MISSOURI

v.ROBERTS ALIAS WARD.

Supreme Court of Missouri.

October Term, 1851.

APPEAL FROM ST. LOUIS CRIMINAL COURT.

BROWN, for Respondent.

I. The court below erred in admitting the dying declarations of Ephraim Hibler, because, as shown by the evidence, the same were not his own voluntary statements, but were drawn from deceased by one who went to collect testimony against the defendant. Hence the influences operating upon the mind of the witness, whose dying declarations are sought to be introduced, were not such as would dispense with the necessity of an oath.

II. That the court below erred in admitting evidence going to show that before the time of the arrest the defendant was a vagrant. Such evidence could not be introduced under the indictment in the case, because it gave the defendant no notice of such an issue and did not enable him to prepare his defense in that respect. If it was necessary to establish this fact, in order to make out the crime, then was the fact a material one and should have been alleged. See Roscoe's Crim. Ev. 81, directly in point; also Wharton's Am. Crim. Law, 81, 82, that the evidence could not be introduced as showing malice, because it did not connect, in any wise, with the intention of the defendant at the time of the arrest and the killing. Possibly, “implied malice” might have been shown under a proper indictment, by evidence of the fact that at the time of the arrest the defendant was committing an act of vagrancy--but this does not justify the introduction of evidence to prove an altogether different offense, that thereby an implication may arise that the defendant was a vagrant at the time. See especially Wharton's Am. Cr. Law, 78, and authorities there cited. Vagrancy, as well as anything else under the sun, may cease, and hence proof that defendant was formerly a vagrant is totally disconnected with the issue and should have been ruled out by the court below.

III. That the court below erred in refusing to admit the testimony of Richard Jones, who had been jointly indicted with the defendant, but to whom a separate trial had been granted. In support of this position the defendant contends that when there is a severance of the trial the indictment becomes several as to each and to all interests, as much so as if they had been separately indicted, and if separately indicted there could be no doubt about the competency of the evidence. See 6 Mo. R. 4, Garrett v. State; Greenl. Ev. Rex v. Ellis; 1 McNally, 55; Russl. Cr. Law, 597; Jones v. State of Georgia, 1 Kelly, 617; Roscoe's Cr. Ev.; Comments upon Lafone's case, 5 Esp. 154. That at best the question is but a rule of evidence, and should be governed, as much by propriety and wise policy as by precedent. That as the objection to the testimony originates in its doubtful character, and objection should go to its credibility alone, and not to its competency. This would be more in accordance with the spirit of the new Code and the present age than the exclusion contended for by the State. Moreover, that it was the intention of the statute law, granting co-defendent the right to sever to make the severance complete, as much so as if separately indicted. Rev. Code, ch. 138, art. 6, § 22-3.

IV. That the court below erred in granting the 1st and 3rd instructions, asked by the State, and in refusing the 16th and 17th instructions asked by the defendant. These instructions, together with the opinion of the Supreme Court in this case on a former trial involve the question of the right of arrest without a warrant. In the opinion of the Supreme Court the hypothesis is assumed, that if the defendant was arrested as a night-walker, the arrest was lawful, although done without a warrant. The defendant contends, that to justify an arrest without a warrant, night-walkers can only be so arrested when found in the commission of some unlawful act, or when there is reasonable ground to suspect a felony. See 1 Chitty's Cr. Law, 23, and note K, note A; Bac. Abr., Trespass D 3, § 2; see Raymond, 1301. In the instructions granted, the court erred in assuming the ground that if arrest was made in conformity with the city ordinance concerning vagrants, then it was lawful, although done without a warrant, because, as the defendant affirms, the ordinance itself is not in accordance with the chartered powers of the city and repugnant to the statute laws concerning vagrants, passed February 28th, 1845. See Rev. St. 563, in this: 1. It imposes penalties greater than those permitted by the city charter. See City Charter, act February 8th, 1843, art. 3rd, § 45.2. It is repugnant to the statute in imposing a penalty different from that affixed by statute. See Rev. St. 563, as compared with ordinance concerning vagrants, Rev. Ord. 407. 3. It is repugnant to the statute and common law, in declaring that to be legal and competent evidence of crime, which the statute and common law do not recognize as such. 4. It is repugnant to the statute law in defining vagrancy differently from the statute, and in making that vagrancy by ordinance, which is not vagrancy by statute. 5. It is unconstitutional in requiring excessive bail. The instructions of the court were further erroneous in assuming that it was lawful, even under the city ordinance to arrest without a warrant. Yet, this assumption is contained in the instructions given. See Walker's Am. Cr. Law, 599.

V. That the court below erred in refusing the other instructions asked by the defendant.

VI. That the court below erred in refusing to sustain the motion made by defendant for a new trial. The motion was, in all respects formal. Wharton's Cr. Law, p. 657; 5 Serg. & Rawle, 41. That even if not formal the motion was based upon a surprise in evidence which cured any apparent irregularities or deficiencies in reference to allegations of newly discovered evidence. Wharton's Cr. Law, 657; 5 Cowen, 106; Burge v. Calloway, 7 Price, 677; Miller v. Field, 3 A. K. Marsh. 104.

VII. The court below erred in overruling the motion made by defendant to arrest the judgment in the case.

LACKLAND, for State.

I. The court did not err in admitting the dying declarations of the deceased. The foundation for their introduction was sufficiently laid. Deceased said to witness, Felps, that he had no hopes of recovery; had made a will, and said he must die and bid Felps farewell. Wharton's Cr. Law, 179, 180; Dunn v. State, 2 Pike, 246; 1 East's P. C. 385; Rex v. Dingler, 2 Leach, 561; Anthony v. State, Meigs, 265. When the declarations are in articulo mortis, is a question to be decided by the court (and not by the jury) from all the circumstances connected therewith. State v. Anthony, Meigs, 279, 280.

II. The court did not err in admitting proof, tending to show that defendant was a vagrant. It was necessary (to show that the arrest was legal), to show that the homicide was without mitigating circumstances. To this end it was competent to prove that defendant was a vagrant, that deceased was a policeman, performing his duty, and that the arrest was conducted in a proper manner. The court properly refused to allow Richard Jones to testify as a witness in favor of defendant; because said Jones was a co-defendant and a party to the record, standing neither acquitted nor convicted. 1 Phil. Ev. 67. A co-defendant, jointly indicted and separately tried, is not competent to testify for defendant. Nor does our statute, giving the right to a separate trial beyond the discretion of the court, affect the question. People v. Williams, 19 Wend. 377; State v. Mills, 2 Dev. 420; Campbell v. Commonwealth, 2 Va. Cases, 317; Commonwealth v. Barton, 10 Pick. 57; Chapman v. Graves, 2 Camp. 334; Rex v. Loker, 5 Esp. R. 107; State v. Smith, 2 Iredell, 405; Rex v. Lafone, 5 Esp. 154; People v. Bill, 10 Jones, 94; State v. Carr, 1 Cox N. J. R. One of several persons, jointly indicted for a riot, although he has pleaded and defended separately, is not a competent witness for his co-defendant. When defendants are jointly indicted for misdemeanors, they cannot be witnesses for or against each other until discharged from the prosecution or convicted. State v. Mooney, 1 Yerger, 431. And this case has since been cited, and the doctrine approved of by the same court, in Moffit v. State, 2 Humph. 99.

Judge NAPTON, in delivering the opinion of this court in the case of McMillan v. State, 13 Mo. R. 34, says: “The general current of authorities, both in England and this country, is, unquestionably, that where several persons are jointly indicted, one is not a competent witness for the other, without being first acquitted or convicted, and it makes no difference whether they plead jointly or severally.” And upon an examination of the subject somewhat hastily, he found no authority to the contrary. We are aware, in the case of Garrett v. State, 6 Mo. R. 4, this point was decided against the State, and 2 Starkie, 22, is cited as authority to sustain the decision. We suppose this reference is to Starkie on Evidence, but find nothing on the page referred to applicable to the subject. In 2 Starkie on Ev. 13, the subject is discussed, and after the principle touching the examination of accomplices, at the instance of the town, are disposed of, it is stated: “So an accomplice is a competent witness for his associates, as well as against them, although they be severally indicted for the same offense, whether he is convicted or not, provided he be not disqualified by a judgment.” It is not contended, that the fact of the witness, being an accomplice alone renders him incompetent. Nor do we hold, that if accomplices are severally, i. e., separately or distinctly (Webster's Dictionary, word Severally) indicted for an offense, they are thereby rendered incompetent witnesses, because this does not make them parties to the record. But we find it nowhere laid down in Starkie on Ev., that accomplices, jointly indicted and severally tried, can testify for each...