State v. Fredericks

• Decision Date: 31 October 1884
• Citation: 85 Mo. 145
• Parties: THE STATE v. FREDERICKS AND REED, Appellants.
• Court: Missouri Supreme Court

85 Mo. 145

THE STATE

v.FREDERICKS AND REED, Appellants.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Cass Circuit Court.--HON. N. M. GIVAN, Judge.

REVERSED.

Wooldridge & Daniel for appellants.

(1) The court erred in admitting the confessions of defendant, Reed. It does not appear that they were voluntarily made. Those made to witness, Wirt, were induced by promises and by means of intimidation employed by the witness. State v. Brockman, 46 Mo. 566, 569; State v. Simon, 50 Mo. 370, 372; State v. Hagan, 54 Mo. 195; State v. Jones, 54 Mo. 478; State v. Carlisle, 57 Mo. 102; Wharton on Crim. Evid., section 673; 1 Greenl. Evid. (11 Ed.) section 219. The confessions afterwards made to other witnesses should have been excluded, as they are presumed to come from the same motive. State v. Jones, 54 Mo. 478; State v. Brown, 73 Mo. 631. (2) There is no competent, legal evidence connecting defendant, Reed, with the crime charged in the indictment. The statement of defendant, Fredericks, to the witness, Hereford, that “he would not have taken the horse, but for Reed,” should have been excluded. Also, the evidence of the distinct crime of stealing Kyle's horse by Fredericks. Even if a common design had existed between defendants, together to take the horse in question, a confession made by either of them after its abandonment was inadmissible against the other. 1 Greenl. Evid., section 111; State v. Ross, 29 Mo. 32, 50; State v. Duncan, 64 Mo. 262, 266, and cases cited; Laytham v. Agnew, 70 Mo. 48; State v. Dean, 13 Iredell, 36. (3) Instruction number one given on the part of the state, is erroneous. Neither of the defendants was indicted as an accessory, either before or after the fact. It was doubtless predicated upon a supposed admission of the defendant, Reed, to the witness, Kyle, that while he did not take the horse, he was accessory to it. It was calculated to mislead the jury. An accessory is not “one who stands by and aids, abets, or assists,” in the commission of crime. 1 Hale 615; 1 Wharton Crim. Law (6 Ed.) section 134. Instruction number three, given on the part of the state is erroneous and bad; for it assumes that the horse was stolen. Merritt v. Given, 34 Mo. 98; 34 Mo. 147; Peck v. Richey, 66 Mo. 114; Moffatt v. Conklin, 35 Mo. 453 State v. Dillahunty, 18 Mo. 331. Instruction numbered two asked by defendants should have been given, and the court erred in changing and modifying instructions numbered five and six as asked by defendants. (4) The verdict is bad, there being no separate assessment of punishment as required by law. State v. Gay, 10 Mo. 441; Barada v. State, 13 Mo. 94; State v. Berry et al., 21 Mo. 504, 507; Curd v. Com., 14 B. Monroe, 386; Burnett v. State, 30 Tex. 521; Allen v. State, 34 Tex. 230; 1 Bishop on Crim. Proc. (3 Ed.) section 1036; Kelly's Crim. Law and Prac., section 388; Revised Statutes, 1928. The judgment does not conform to the verdict.

B. G. Boone, Attorney-General, for the state.

(1) These confessions were properly admitted. State v. Patterson, 73 Mo. 690; State v. Simon, 50 Mo. 370; State v. Carlisle, 57 Mo. 104; State v. Hopkirk, 84 Mo. 273. (2) The evidence was amply sufficient to show that defendant, Reed, was connected with, and a party to, the stealing of Gentry's horse, and the law on that point was correctly stated to the court. The testimony of Gentry, Wirt, W. S. Reed, father of defendant, Reed, and defendant, Reed's, own testimony clearly shows Reed's connection with the stealing. (3) It is also insisted by appellant that the verdict is bad, there being no separate assessment of punishment. This objection is not well taken. The record shows that the defendants received the minimum punishment, and could not, therefore, be injured or affected by the alleged informality of the verdict. (4) The indictment is sufficient, and the instructions given by the trial court are clear and correct declarations of the law of this case, and no substantial error is apparent on the record, and the judgment should be affirmed.

HENRY, C. J.

The defendants were jointly indicted for stealing a horse, the property of one Thomas E. Gentry. They were tried jointly and found guilty at the November term, 1884, of the Cass circuit court and sentenced to imprisonment in the penitentiary for a term of two years. From the judgment they have appealed.

The first complaint made is that the confession of the defendant Reed was admitted as evidence against him, and it is contended that he was induced to make it by promise of reward. Before the arrest of defendants, or either of them, in the state of Kansas, one E. N. Wirt, with whom the horse in question and another were left by Fredericks, having had his suspicions aroused that the horses were stolen, went in quest of Reed, who had been at Wirt's stable in company with Fredericks whom he had introduced to Wirt as Owen, and found him in the county some distance from Humboldt. On inquiry Reed told Wirt that he was going to see a gentleman in the county, naming him, to get him to identify the horses. Wirt told him there was no such man in the county, and that he did not believe a word he said about the horses, and that he had just as well tell what he knew about it; that he had had Owen arrested. Witness further said: “You had better turn state's evidence, and we could fix the matter up and get the reward offered for the horses. I have a man in front of you and one behind you and for you to get away is impossible.” Reed replied that it would take a good man to arrest him. Wirt told him that he did not want to arrest him. Defendant had his hands on his revolver, about half drawn from his pockets. After further conversation, Wirt said to him: “You had just as well make the thing straight.” This was immediately after Reed had consented to go back to Humboldt with Wirt. Reed then told Wirt that one of the horses belonged to Gentry and the other to Kyle, also told when they were taken, and that Owen's true name was Fredericks.

I cannot see that this confession was either extorted from Reed, or induced by a promise of reward. It is well settled that a confession is not rendered inadmissible because made under a supposition that the accomplice of the party making it is in custody, when in fact he was not, although the impression that the accomplice was in custody was created by artifice, with a view to obtain the confession, unless the artifice used was calculated to produce an untrue confession. Wharton's Criminal Evidence, section 670. Wirt was not an officer, did not arrest or attempt to arrest Reed. Reed was armed, Wirt was not. Wirt had no interest in the stolen property. Mere suggestions or advice to the accused, or even solemn adjurations by one holding no official position, to confess, will not make the confession inadmissible. Wharton's Crim. Evid., sec. 669. This is true as a general proposition, but in all cases the age, experience, intelligence and constitution of the party, and the circumstances under which the confession was made are to be...