I concur in the result reached in the opinion of RAILEY, C., and in all of his opinion except Paragraph IV, wherein he approves the action of the trial court in excluding the offer made by defendant to show that witness John Mullinix had been convicted of violating the prohibition laws of theWitness: State. Such offer was excluded because an appealImpeachment: from such conviction had been taken by said witnessConviction: to this court and said appeal was still pendingAppeal. here at the time of the trial. In my opinion, the cases cited by our learned commissioner do not justify the exclusion of this evidence.
The general rule laid down in 40 Cyc. 2611, is that "pendency of an appeal from a conviction of crime does not preclude the showing of such conviction as bearing on the credibility as a witness of the person convicted." In Ritter v. The Democratic Press Company, 68 Mo. 458, one of the defendants had been convicted of a crime which, under the statute then in force, rendered him incompetent to be sworn and to testify as a witness. An appeal had been taken and was pending at the time of the trial. In fact, that judgment was subsequently reversed. Such defendant was offered as a witness and was excluded. NAPTON, J., said: "The only question is whether Saunders, sentenced as he had been to the penitentiary, though he had appealed to this court, where the judgment was reversed, was at the time he was offered as a witness, a competent one. We think the *Page 350 circuit court properly excluded him. He was convicted of a crime which disqualified him as a witness, and the subsequent reversal of that judgment by this court could not be anticipated by the circuit court."
While the statute upon which the Ritter case was ruled is no longer in force in this State and a person who has been convicted of crime and sentenced to the penitentiary is now a competent witness, save only that such conviction may be shown to affect his credibility, the reasoning upon which the Ritter case was ruled applies just as strongly in the case at bar. The Ritter case was cited and quoted with approval in Viberg v. State,138 Ala. 100, 100 Amer. St. 22. That court held that it was proper to show the conviction to impeach a witness, although the judgment of conviction had been appealed from and such appeal was pending at the time the witness was offered. The same conclusion was reached by the Supreme Court of Iowa in the case of Hackett v. Freeman Graves, 103 Iowa 296.
The Ritter case, supra, was cited with approval by this court in Rodney v. Gibbs, 184 Mo. 1, and in State ex rel. Scott v. Cox, 243 S.W. 144. But those were not cases where the effect of an appeal was considered in connection with the impeachment of a witness by introduction of the judgment appealed from.
The witness Mullinix is conceded in the briefs of both parties to have been thoroughly impeached independently of such proffered evidence because of bad reputation for truth and veracity. The State offered no testimony in rebuttal of such testimony. The jury had the right to believe the testimony of such witness, though impeached by uncontradicted testimony, if it found from all the facts in the case that such testimony was true.
I therefore do not think that the error of the court in excluding the proof of the conviction of said witness was prejudicial to the substantial rights of the defendant. As such evidence only went to the credibility of Mullinix, it was merely cumulative evidence on that subject. *Page 351 The case was otherwise well tried. I concur in the affirmance of the judgment. Walker and Atwood, JJ., concur.