85 Mo. 145 (Mo. 1884), State v. Fredericks

Citation:85 Mo. 145
Opinion Judge:HENRY, C. J.
Party Name:THE STATE v. FREDERICKS AND REED, Appellants.
Attorney:Wooldridge & Daniel for appellants. B. G. Boone, Attorney-General, for the state.
Court:Supreme Court of Missouri
 
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Page 145

85 Mo. 145 (Mo. 1884)

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...

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