State v. Kirschner

Missouri Court of Appeals

State v. Kirschner

23 Mo. App. 349, 1886 Mo. App. LEXIS 60

CourtMissouri Court of Appeals

DecidedNovember 22, 1886

StatusPublished

Cited by1 cases

This text of 23 Mo. App. 349 (State v. Kirschner) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Kirschner, 23 Mo. App. 349, 1886 Mo. App. LEXIS 60 (Mo. Ct. App. 1886).

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Opinion

Hall,

Under section 1762, Revised Statutes, the information had to be verified by the oath of the prosecuting attorney, “or by the oath of some person competent to testify as a witness in the case, or be supported by the affidavit of such person.” Unless Wilkerson was competent to testify in the case the information was not verified and was consequently insufficient.

The question, then, is, was Wilkerson a competent witness ? Wilkerson was convicted of grand larceny in 1872, and by the statutes then in force was rendered incompetent to testify as a witness. The change made in [352]*352the statutes by the revision of 1879 did not have the effect to remove Wilkerson’s incompetency. State v. Grant, 79 Mo. 113.

Wilkerson ivas, then, incompetent to testify as a witness in the case, unless the so-called pardon issued by the governor of the state, removed his incompetency. Wilkerson’s incompetency as a witness could only be removed by a full pardon of the offence of which he was convicted. State v. Grant, supra. The paper, called a pardon in this case, is not a pardon of the offence of which Wilkerson was convicted. The paper does not purport to be a pardon of such offence. The paper only releases and discharges Wilkerson from the penitentiary; the offence remains unpardoned.

As long as the offence remains unpardoned Wilkerson’s incompetency as a witness continues. State v. Grant, supra, and authorities cited on page 127.

Not being a pardon the paper could not have removed Wilkerson’s incompetency as a witness, but it does not purport to removed such incompetency. After discharging and releasing Wilkerson from the penitentiary, it simply, in addition thereto, entitles Mm to all the rights, privileges and immunities which by law attach and result therefrom, one of which rights, privileges, and immunities is not to testify as a witness.

Wilkerson was incompetent to testify as a witness in this case. The information was, therefore, not verified and was insufficient.

The judgment is reversed and the defendant is discharged.

Ellison, J., concurs; Philips, P. J., not sitting.

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Hall,

Under section 1762, Revised Statutes, the information had to be verified by the oath of the prosecuting attorney, “or by the oath of some person competent to testify as a witness in the case, or be supported by the affidavit of such person.” Unless Wilkerson was competent to testify in the case the information was not verified and was consequently insufficient.

The question, then, is, was Wilkerson a competent witness ? Wilkerson was convicted of grand larceny in 1872, and by the statutes then in force was rendered incompetent to testify as a witness. The change made in [352]*352the statutes by the revision of 1879 did not have the effect to remove Wilkerson’s incompetency. State v. Grant, 79 Mo. 113.

Wilkerson ivas, then, incompetent to testify as a witness in the case, unless the so-called pardon issued by the governor of the state, removed his incompetency. Wilkerson’s incompetency as a witness could only be removed by a full pardon of the offence of which he was convicted. State v. Grant, supra. The paper, called a pardon in this case, is not a pardon of the offence of which Wilkerson was convicted. The paper does not purport to be a pardon of such offence. The paper only releases and discharges Wilkerson from the penitentiary; the offence remains unpardoned.

As long as the offence remains unpardoned Wilkerson’s incompetency as a witness continues. State v. Grant, supra, and authorities cited on page 127.

Not being a pardon the paper could not have removed Wilkerson’s incompetency as a witness, but it does not purport to removed such incompetency. After discharging and releasing Wilkerson from the penitentiary, it simply, in addition thereto, entitles Mm to all the rights, privileges and immunities which by law attach and result therefrom, one of which rights, privileges, and immunities is not to testify as a witness.

Wilkerson was incompetent to testify as a witness in this case. The information was, therefore, not verified and was insufficient.

The judgment is reversed and the defendant is discharged.

Ellison, J., concurs; Philips, P. J., not sitting.

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23 Mo. App. 349, 1886 Mo. App. LEXIS 60, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kirschner-moctapp-1886.

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