I dissent from the conclusion reached by RAILEY, C., in this case.
I. In Paragraph IV, the opinion holds that it was not error for the trial court to refuse to permit the defendant to show that a witness against him had been convicted of a criminal offense. In that I disagree. Under Section 5439, RevisedWitness: Statutes 1919, that sort of cross-examination isImpeachment: allowable, and it is error to exclude it. [State v.Conviction. Mills, 272 Mo. l.c. 536, 537; State v. Minor, 117 Mo. 305; State v. Johnson, 192 S.W. l.c. 442.] We cannot declare a rule of evidence sound when applied to a witness for a defendant, and hold it unsound when applied to a witness for the State. We cannot hold it error to exclude such cross-examination of the defendant's witnesses, and hold it proper in cross-examination of a State's witness.
The ruling, however, in the opinion, is on the theory that the case was appealed, and the operation of the judgment was suspended because the jurisdiction was transferred to this court. That, I think, is a misconception of the effect of an appeal. In civil cases an appeal has no effect upon the judgment, and it may be enforced as if there were no appeal unless there is an appeal bond, which has the effect only to stay execution. [Sec. 1473, R.S. 1919.] The same may be said of appeals in criminal cases. [Sec. 4086, R.S. 1919.] The judgment of conviction is in full force and effect until it is reversed by the Supreme Court. The opinion cites the case of State ex rel. v. Gates, 143 Mo. 63, a civil case. That is a case where the verdict was for the defendant and plaintiff appealed. The court said (l.c. 69), speaking of the appeal bond: "The bond operates upon the *Page 352 judgment only, and to the extent only of suspending its execution."
Statute 5439 makes any person "who has been convicted" of a criminal offense a competent witness, and "the conviction" may be proved, to affect his credibility. He is convicted when a verdict is returned finding him guilty. In the case of State v. Minor, 117 Mo. 305, a convicted person was introduced as a witness, and his conviction was permitted to be shown although judgment has not yet been pronounced. In State v. Meyers, 198 Mo. l.c. 252, the statute was held to apply to a convicted person whose motion for new trial was still pending. Undoubtedly, the trial court was in error in refusing to permit that cross-examination. There being an issue of fact as to the defendant's guilt, he had a right to have the jury know the character of a witness appearing against him, because the statute expressly allows that sort of cross-examination to reveal such character.
II. The discussion of the validity of the search warrant is wholly unnecessary because, as stated in the opinion, it is a moot question. The evidence introduced on which theSearch defendant was convicted was not obtained by means of aWarrant. search warrant.
I therefore dissent. Graves, J., concurs.