The State v. Landrum

• Citation: 106 S.W. 1111,127 Mo.App. 653
• Parties: THE STATE OF MISSOURI, Respondent, v. J. G. LANDRUM, Appellant
• Decision Date: 06 January 1908
• Court: Court of Appeals of Kansas

106 S.W. 1111

127 Mo.App. 653

THE STATE OF MISSOURI, Respondent, v. J. G. LANDRUM, Appellant

Court of Appeals of Missouri, Kansas City

January 6, 1908

Appeal from Howard Circuit Court.--Hon. Alexander H. Waller, Judge.

AFFIRMED.

Judgment affirmed.

O. S Barton for appellant.

(1) If there is any rule for the consideration of statutes well settled in this State, it is this, that they are to operate prospectively or not otherwise, unless the intent that they are to operate in such an unusual way to-wit, retrospectively is manifested on the face of the statute in a manner altogether free from ambiguity. State v. Grant, 78 Mo. 113; State ex rel. v. Auditor, 41 Mo. 25; State ex rel. v. Ferguson, 62 Mo. 77; Thompson v. Smith, 8 Mo. 723; State ex rel. v. Hayes, 52 Mo. 578. (2) At the time of the conviction of the witness Grady for the crime of burglary and larceny in 1878, becoming disqualified as a witness was a part of the punishment and necessarily a part of the judgment and the disabilities which the statute annexes to the commission of certain offences are part and parcel of the judgment, the Legislature cannot rescind a part thereof, and nothing but a full pardon of the crime itself makes the convict a new man and rehabilitates him with his former civil rights. State v. Grant, 79 Mo. 129; Article 3, Constitution of Missouri; State v Grant, 79 Mo. 123; Comm. ex rel. v. Halloway, 42 Pa. St. 446. (3) Nor will it do to say that section 4680 Revised Statutes of 1899, is a mere alteration of the rules of evidence or change of the method of procedure, for the Legislature has no right to make a person competent as a witness who theretofore, was rendered incompetent by the rendering of judgment in the conviction of a crime which crime remains unpardoned and which judgment remains unreversed. State v. Grant, 79 Mo. 131. (4) The second contention of the appellant for the reversion of this cause is that the trial court erred in permitting the witness Grady in testifying over the objection of the appellant to the fact that the appellant was running the game and selling and cashing the chips. State v. Turner, 76 Mo. 350; State v. Young, 119 Mo. 495. (5) Nor is evidence admissible of a criminal act of a similar character of that charged. State v. Reed, 85 Mo. 194; Columbia v. Johnson, 72 Mo.App. 232.

R. M. Bagby and A. W. Walker for respondent.

(1) The witness Grady was competent to testify. Section 66, chapter 201, G. S. 1865, cited by appellant refers only to convictions under the provisions of that chapter. It was not designed to cover convictions in another State. If the evidence properly shows any conviction of the witness, it occurred in the State of Indiana and the witness is not thereby disqualified from testifying in this State. Logan v. United States, 144 U.S. 263; Sims v. Sims, 75 N.Y. 466; Commonwealth v. Green, 17 Mass. 515; Trust Co. v. Gleason, 77 N.Y. 400, 33 Am. Rep. 632; Pynchon v. Stearns, 52 Mass. 304. (2) The appellant contends that the court erred in permitting the witness, Grady, to testify that the appellant sold and cashed the chips used by the players in the game for the alleged reason that such evidence tended to prove appellant guilty of another and distinct offense from the one for which the defendant was on trial. Such evidence is the only direct refutation of the defense set up that the chips represented no money value. It was competent because the selling and cashing of the chips occurred at the same time, at the same place and in direct connection with the playing charged in the information. Evidence of other crimes is always admissible when it tends to prove the one under investigation. State v. Jones, 171 Mo. 402; State v. Perry, 136 Mo. 126; State v. Pigg, 85 Mo.App. 399.

OPINION

JOHNSON, J.

--On information of the prosecuting attorney, defendant was convicted before a justice of the peace for an offense defined in section 2212, Revised Statutes 1899. He appealed to the circuit court where he was tried, convicted and fined twenty-five dollars. The information charged "that J. G. Landrum (the defendant), John Grady and Dave Malory on the 16th day of June, 1906, at the said county of Howard did then and there unlawfully play at a game of chance commonly called poker for money, property and gain with a gambling device, to wit: a pack of cards used and adapted for the purpose of playing games of chance for money, property, and gain."

It appears from the evidence introduced by the State that a policeman of Fayette and a deputy constable, suspecting that a gambling game was being played in a room in an upper story of a certain building, were enabled by ascending to the roof of an adjoining building to look into the suspected room through a window. They saw the persons named in the information and two others, who were strangers to them, seated at a table playing a game in which cards and poker chips were being used. During the time they watched, no money was on the table nor was any passed among the players. Before the trial in the circuit court, one of the players (John Grady) pleaded guilty to the charge contained in the information and paid the fine assessed against him. He was introduced by the State as a witness against the other defendants and on his testimony the conviction was obtained. He testified, in substance, that the persons in the rooms were playing poker for money and that defendant acted as dealer in selling and redeeming the chips used by the other players. After he was sworn and before he testified concerning the facts of the occurrence, counsel for defendant interrogated him as follows: "Q. Is it not a fact that from March, 1878, until the latter part of February, 1880, you served a term in the penitentiary of Indiana at Jeffersonville, Indiana, for larceny and burglary? A. Yes, sir."

Thereupon, counsel for defendant objected to the witness on the ground "that at the time he was sentenced to the penitentiary and served his sentence he was under the law disqualified from testifying as a part of his sentence. And he had been convicted and served his sentence prior to the passage of the act of 1895 permitting parties who had been convicted of a felony to testify." The objection was overruled and this action of the court is urged by defendant as a ground for the reversal of the judgment. In disposing of the questions thus arising, we shall assume for argument, without so deciding, that the evidence before us is competent to show that the witness was convicted in Indiana in 1878 of the crime of burglary and larceny, was sentenced to the penitentiary for a term of two years and served his sentence and, from this standpoint, the first question to arise is whether he would have been disqualified from testifying had his conviction and sentence occurred in this State instead of in Indiana. The law in force at that time relating to the subject is contained in section 66, chapter 201 of the General Statutes of Missouri of 1865, which is as follows:

"Every person who shall be convicted of arson, burglary, robbery or larceny, in any degree in this chapter specified, or who shall be sentenced to imprisonment in the penitentiary for any other crime punishable under the provisions in this chapter, shall be incompetent to be sworn as a witness or serve as a juror in any cause, and shall be forever disqualified from voting at any election, or from holding any office of honor, trust or profit within this State."

In the revision of 1879 (section 1378), the statute was amended by the omission of the words "to be sworn as a witness" and it is conceded that the effect of the amendment was to exempt a person thereafter convicted of an infamous crime from the disqualification of incompetency to give testimony. In 1895, ...