The State v. Martin, Appellant

Supreme Court of Missouri1881-10

74 Mo. 547

Summary · law.co

Holding. The judgment of conviction is reversed and the cause is remanded for retrial. The trial court committed reversible error by admitting prior indictments unrelated to the charged offense, which improperly attacked the defendant's character without legal justification, and by allowing the prosecutor to comment that a jointly indicted co-defendant was a competent witness for the defense, when in fact co-defendants are legally incompetent to testify for one another.

A defendant was convicted of first-degree murder in a joint trial with Sarah I. Martin. The trial court admitted into evidence two separate indictments charging the defendant with felonious assaults against Jesse Prewitt, despite the defendant's objection. These prior indictments had no apparent connection to the murder charge and were prejudicial to the defendant's character, which the State had no right to attack before the defendant had introduced evidence of his own character. The admission of this evidence constituted reversible error under established Missouri precedent.

Additionally, during closing argument, the prosecutor improperly commented on the defendant's failure to call his co-defendant as a witness, suggesting the defendant "dared not" put her on the stand. The trial court erroneously endorsed this argument by ruling that the co-defendant was a competent witness for the defendant. Under Missouri law, a co-defendant in a joint prosecution is incompetent to testify for another defendant due to public policy, not lack of interest. The court should have recognized this incompetency rather than allowing the prosecutor to mischaracterize the law and comment negatively on the defendant's failure to call an inadmissible witness.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Admissibility of prior unrelated indictments to attack defendant's character without waiver
Competency of jointly indicted co-defendant to testify for another defendant
Propriety of prosecutor's comments on defendant's tactical decisions regarding witness selection
Public policy grounds for excluding co-defendant testimony in joint prosecutions

Procedural posture

The defendant was convicted of murder in the first degree at the February 1880 term of Laclede County Circuit Court, and after his motions for new trial and arrest of judgment were overruled, he appealed to the state appellate court.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Norton, J.

The defendant was jointly indicted with Sarah I. Martin, for the murder of George Mizer, at the August term, 1879, of the Laclede county circuit court.

At the February term, 1880, of said court, he was tried and convicted of murder in the first degree. Motions for new trial and in arrest having been overruled, he brings the cause here by appeal, and assigns various grounds for error, one of which is, that the court, over the objection of defendant, allowed the State to read in evidence two indictments against the defendant charging him with felonious assaults upon one Jesse Prewitt. The offenses charged in the indictment in no way, so far as the record shows, had any connection with the. offense for which the defendant was being tried. This evidence was calculated to prejudice the jury, and to put the character of defendant in issue, without any such issue having been tendered by him. The rule is, that" the character of a person criminally charged cannot be-assailed by the State until the accused has offered proof as’ to character. Under-the ruling of this court in the cases of State v. Reavis, 71 Mo. 420; State v. Hart, 66 Mo. 208, and under the rule laid down in Wharton on Crim. Plead. and Ev., (6 Ed.) pp. 635, 636, 647, 648, error was committed in admitting the evidence. State v. Creson, 38 Mo. 372.

The assistant prosecuting attorney, in his closing argument to the jury, said: “ That the co-defendant is a. .competent witness in behalf of the defendant, as well as the defendant, under the laws of this State, and the attorneys for defendant know it.” He also proceeded to comment at length upon the fact that Sarah I. Martin, who was jointly indicted with defendant, was a competent witness, and, though present during the whole-trial, was not put upon the stand to contradict statements. made by other witnesses in regard to matters occurring in her presence, and that defendant dared not put her on the-stand, etc. These remarks were objected to on the ground that the co-defendant was not examined because she was not a competent witness. The objection was overruled,, the court observing that the co-defendant was a competent witness and the attorney had a right to comment on. the fact that she had not been put upon the stand by defendant.

This, we think, was a clear misapprehension of the-law. In the ease of the State v. Roberts, 15 Mo. 29, it was-held that when two persons are jointly indicted, neither is-admissible as a witness for his co-defendant, and this rule equally applies whether they are tried separately or jointly. The witness is incompetent, not on the ground of interest but of public policy. "Where there is no evidence to criminate, or where he is by mistake made such, or where he is made a defendant for the purpose of excluding his testimony, the practice is for the court to direct his acquittal, that he may be used as a witness. This rule, so far from being overthrown by any statute of the State, is expressly recognized in section 1917, Revised Statutes, which provides that “whentwo or more persons shall be jointly indicted or prosecuted, the court may, at any time before defendants have gone into their defense, direct any defendant to be discharged, that he may be a witness for the State. A defendant shall also, when there is not sufficient evidence to put him on his defense, at any time before the evidence is closed, be discharged by the court, for the purpose of giving his evidence for a co-defendant.” * *

The judgment under the authority of the case of the State v. Mahly, 68 Mo. 316, might well be reversed because of the refusal of the court to rebuke the attorney for commenting on the fact that defendant was a competent witness, and allowing him, not only to misstate the law as to a co-defendant being a competent witness, but in indorsing the misstatement; but it is not necessary to put the reversal on that ground, inasmuch as the error committed in allowing the indictments heretofore mentioned to be read in evidence works a reversal. Attention has been called to the matter so that whatever there is of error in it may not be repeated on a retrial of the cause. •Judgment reversed and cause remanded,

in which all con•cur.