The State v. Reppley

• Court: Missouri Supreme Court
• Writing for the Court: WHITE, C. --
• Citation: The State v. Reppley, 213 S.W. 477, 278 Mo. 333 (Mo. 1919)
• Decision Date: 02 June 1919
• Parties: THE STATE v. HARRY REPPLEY, Appellant

213 S.W. 477

278 Mo. 333

THE STATE v. HARRY REPPLEY, Appellant

Supreme Court of Missouri, Second Division

June 2, 1919

Appeal from St. Louis City Circuit Court. -- Hon. Victor H Falkenhainer, Judge.

Affirmed.

Willis H. Clark for appellant.

(1) The court erred in admitting testimony of the codefendant Keller in evidence against appellant. State v. Miller, 100 Mo. 606; State v. Chyo Chiagk, 92 Mo. 395. (2) The first and second instructions given were erroneous in that they were not confined to the issue on trial, and authorized the conviction of appellant in case the jury found the offense charged to have been committed by either one or both the defendants named in the information. State v Vaughan, 200 Mo. 1; State v. Bobbitt, 228 Mo 252; State v. Bobbitt, 242 Mo. 273; State v. Fredericks, 136 Mo. 51; State v. Kaiser, 124 Mo. 651. (3) The court erred in overruling objections of appellant to improper remarks of the prosecutor in his argument to the jury and in refusing to admonish the prosecutor concerning such remarks. State v. Baker, 246 Mo. 357; State v. Webb, 254 Mo. 414; State v. Hess, 240 Mo. 147; State v. Furgerson, 152 Mo. 92; State v. Wigger, 196 Mo. 90.

Frank W. McAllister, Attorney-General, and Thomas J. Cole, Special Assistant Attorney-General, for respondent.

(1) If an accomplice has pleaded guilty, or has been convicted, or if the case against him has been nolled and judgment has not been entered, he is a competent witness for or against others included in the same information or indictment. State v. Shelton, 223 Mo. 132, 136; State v. Conway, 241 Mo. 278; State v. Walker, 98 Mo. 102; State v. Jackson, 106 Mo. 177; State v. Chyo Chiagk, 92 Mo. 401. (2) The remarks of the prosecuting attorney were not improper. State v. Miles, 199 Mo. 553; State v. Wassing, 169 N.W. 488; People v. Worth, 108 Mich. 307; 16 C. J. 2246; Driscol v. People, 47 Mich. 413. See also, People v. Riker, 168 N.W. 435. (3) All of the instructions given in a case are to be considered together. State v. Kinder, 184 Mo. 295; State v. Montgomery, 230 Mo. 671. Instructions 1 and 2, when considered with instruction 3 and the other instructions given herein were proper. State v. Darling, 199 Mo. 200.

OPINION

WHITE, C. --

The defendant was tried and convicted on an information charging him and one Joseph Keller with the crime of grand larceny. Keller, his codefendant, was arraigned and pleaded not guilty. He afterwards withdrew his plea of not guilty and entered a plea of guilty. Thereafter Keller filed some sort of motion for new trial, which was pending at the time the defendant Reppley was brought to trial. Keller was a witness for the State against Reppley and the ruling of the trial court in permitting him to testify is assigned as error.

The defendants were charged with stealing two automobile tires from the car of Judge George Williams on the evening of September 3, 1917. On that evening Judge Williams drove to the Bevo Mills and left his car, a Packard, in charge of his chauffeur, Frank Wesley. He had two extra Goodyear Cord tires, mounted on steel rims and enclosed in leather cases, on the back of his car. These tires with casings, rims and inner tubes were valued at $ 221. The chauffeur parked the car on the south side of the street and remained in the car, after Judge Williams had stepped out, for some time, and then crossed the street, where he stood a few minutes, when some unknown man called his attention to his car. He ran hastily back and found another car driving away, but not before he recognized the State license number, 101681. The tires mentioned had been taken from Judge Williams's standing car. Later the same day the chauffeur discovered a Studebaker automobile with that license number at 4164 Pleasant Street, and reported the fact to the police. The defendants Reppley and Keller, with two other boys, were in the car at the time and they were arrested. The car contained two tires, but not the tires of Judge Williams. The next morning the stolen tires were found at 2109 Johnson Avenue, in a shed of one Frank Shaller, who lived at that number and ran an automobile repair shop there. He said he did not know anything of the tires which were found in his shed. Keller testified that he had known the defendant Reppley for two weeks prior to the time the tires were taken and that on the evening of September 3rd, he, Reppley and two others started out for the purpose of getting tires. They drove to the Bevo Mills, saw Judge Williams' car drive up, removed the tires from his car and took them away. They first intended to leave the tires at Reppley's house, but decided to take them to a shed at some place west of Grand Avenue. After that they went out and got some more tires, which were found in their car at the time they were arrested. The defendant offered evidence to show that he had an automobile and horses and wagons which he let out for hire. His wife testified that on the evening of September 3rd, he had rented his automobile to Keller and that he was at home and with her at a picture show that evening. Defendant testified to the same facts. On the submission of the issues to the jury the defendant was found guilty and his punishment assessed at two years in the Penitentiary, from which judgment he appealed.

I. The evidence was entirely insufficient to warrant a verdict of guilty against the defendant except for the testimony of Keller. Counsel for defendant vigorously assert that the court committed error in permitting Keller to testify, on the ground that he was a codefendant with Reppley. The authorities are uniform in this State that where two persons are jointly indicted for the same offense one may not testify for the State against the other while his case is undisposed of. In many jurisdictions the rule obtains that on separate trials of defendants jointly indicted one may testify against the other whether the case is disposed of or not. [16 C. J. p. 691.] But in this State the rule is more strict, and such a witness cannot testify before his case is disposed of unless he is charged in a separate information from defendant. The authorities were collated and the points discussed at length in the case of State v. Chyo Chiagk, 92 Mo. 395, 4 S.W. 704. A plea of guilty is equivalent to a trial and conviction so far as an effectual disposition of the case is concerned, so as to permit a codefendant to testify. [State v. Jackson, 106 Mo. 174, 17 S.W. 301; State v. Shelton, 223 Mo. 118, 134-5, 122 S.W. 732; State v. Minor, 117 Mo. 302, 305, 22 S.W. 1085.]

Appellant in this case while admitting that the rule obtains here as stated, argues that Keller's case was not disposed of in such way that he had nothing to hope for or to gain through testifying against his codefendant. It is argued that although Keller had pleaded guilty, he had afterwards filed a motion for new trial, which was pending at the time he testified, and he was at liberty on bail; that therefore his case was undisposed of and the whole body of the case remained for determination against him. Under the law, it is urged he had a right to withdraw his plea of guilty, at any time before sentence and elect to submit his case to trial, and his motion for new trial is equivalent to an election to withdraw his plea of guilty.

The files were introduced showing that the defendants were jointly informed against for grand larceny, and the record of the circuit court was offered showing the plea of guilty of Joseph Keller; defendant also separately offered Keller's motion for new trial and proof to show that the motion for new trial in that case was still pending at the time the witness was called to testify. That motion is not set out in the record here. There is nothing to indicate its purport or substance except that it is designated as a motion for new trial. The record shows no indication that it is merely an application for leave to withdraw his plea of guilty and plead not guilty. We do not know, from what is shown by the record, that the motion contains anything of which the court could properly take cognizance, or that it contains anything more than some technical objection to the information or the form of entry.

A defendant who pleads guilty to a charge in an information does not thereby necessarily confess guilt of the crime it is sought to charge against him; it only means he confesses the truth of the facts stated in the information. He may follow his motion for new trial in such case, appeal, or sue out a writ of error, on the ground that the information or indictment charges no offense. [State v. Rosenblatt, 185 Mo. 114, 83 S.W. 975; State v. Kelley, 206 Mo. 685, 105 S.W. 606.] The fact that Keller had filed a motion for new trial in the case in which he pleaded guilty would not indicate that he was attacking anything but the form of the information on which he was arrested. The trial court is presumed to have acted regularly. If Keller had presented his application to withdraw his plea of guilty so that he might plead not guilty, the record would show that, but it shows nothing of the kind.

At most it stands on the same footing as a motion for new trial would stand after a conviction. A witness is permitted to testify against his codefendant immediately after conviction and before time to file a motion for new trial is expired. [State v. Peters, 258 Mo. 334, 342, 167 S.W. 520.] While a defendant still has time in which to file a motion for a new trial his case is in the same position, so far as its final disposition is concerned, as that of a defendant whose motion has been filed. It has been held that the pendency of a motion for a new trial by an accomplice who has been convicted does not prevent his testifying against the defendant...