87 S.W. 460 (Mo. 1905), The State v. Stebbins
| Judge | GANTT, J. Fox, J., concurs; Burgess, P. J., absent. |
| Parties | THE STATE v. STEBBINS, Appellant |
| Docket Number | . |
| Date | 16 May 1905 |
| Court | Missouri Supreme Court |
| Citation | 188 Mo. 387,87 S.W. 460 |
Page 460
Appeal from Ray Circuit Court. -- Hon. J. W. Alexander, Judge.
Affirmed.
(1) It was erroneous on the part of the court and highly prejudicial to the defendant for the court to give instruction 2. Evidence of drunkenness was only introduced as bearing upon the mental condition of the defendant at the time of obtaining his alleged confession. By this instruction this very necessary evidence is used as a weapon against the defendant by instructing the jury "that drunkenness in any degree cannot justify, excuse or mitigate the commission of a crime." This proposition was never denied or put in issue by the defendant. (2) Instruction 7 given for the State and bearing upon the admissibility of the alleged confession is also erroneous. The beginning of the instruction is more applicable where the State was resting upon simple admissions, which might have been made from time to time by the defendant, but wholly misconceives the difference between the care and caution of accepting confessions and the rule for the guidance of the jury in weighing admissions. A confession is something more than an admission; if believed, it becomes a Krupp cannon, while common admissions are but minnie balls, the force of which is more easily spent. Confessions, to be admitted as against the denial of guilt, must come from an untainted source; the damning instrument relied upon by the State must have been born under circumstances free from suspicion of improper conduct on the part of the officers. This instruction does not safeguard the proposition as it should be in the light of the testimony. (3) The court did not fully instruct the jury, although requested to do so, to which failure defendant excepted. An instruction should have been given to the effect that if defendant did not understand the legal effect and the consequent punishment which would follow his conviction of the charge mentioned in the confession, then the confession should not have been considered against the defendant. State v. German, 54 Mo. 526. The court should have instructed the jury that "the age, the experience and constitution of the person making the confession, and the circumstances under which it was made, should all be considered in determining the weight to be given to it, as well as its admissibility." State v. Fredericks, 85 Mo. 145. This confession was not voluntary, and should have been held inadmissible for that reason. State v. Brockman, 46 Mo. 566. (4) The court should have heard the evidence touching the manner of procuring the confession, as a preliminary question, and this error was not cured by submitting the question to the jury. State v. Kinder, 96 Mo. 548.
No error was committed in admitting in evidence the defendant's written confession. As the same is not contained in the bill of exceptions, this court must presume that it was not germane to the issue. The allegation in the motion for a new trial that the evidence was improperly admitted does not prove itself. State v. Ashcraft, 170 Mo. 409.
OPINION
[188 Mo. 390]
On the 16th of October, 1903, the prosecuting attorney of Ray county, Missouri, filed an information against John Stebbins and William Evans, in words and figures as follows, omitting caption: "George W. Crowley, prosecuting attorney within and for Ray county, Missouri, informs the court that John Stebbins and William Evans on the 15th day of October, 1903, at Ray county, Missouri, in and upon William M. Hill, unlawfully and feloniously did make an assault and $ 4.90 lawful money of the United States of America of the value of $ 4.90, of the money and
Page 461
personal property of the said Wm. M. Hill, unlawfully and feloniously did rob, steal, take and carry away; against the peace and dignity of the State." The information was duly verified as the law directs.
The defendants were arrested on the same day and duly arraigned and entered a plea of guilty, which was subsequently withdrawn, and a plea of not guilty entered.
[188 Mo. 391] A severance was granted, and the defendant John Stebbins was placed upon his trial before a jury, and was convicted, and his punishment assessed at five years in the penitentiary. From the sentence on this verdict the defendant appealed to this court.
The evidence tends to show that William Hill, at the time mentioned in the information, was a resident of Caldwell county, and came to Richmond, Missouri, on the 15th of October, 1903, reaching there about five o'clock in the afternoon. The evidence tends to show that he had ten dollars when he left home that day, out of which he paid his railroad fare from Cowgill to Lawson, fifty-five cents, and from Lawson to Richmond, sixty cents, and that he bought his dinner at Lawson. Somewhere about six o'clock that evening he went to a saloon known as the "Twin Hells," and while there he met the defendant Stebbins, who after taking a drink at Hill's expense, suggested that Hill treat one Evans, a friend of Stebbins, which Hill declined to do. After visiting several saloons, at each of which Evans would generally turn up, Hill and the defendant Stebbins visited a house known as "Pearl's." Here again Evans appeared, and after staying there for something like an hour and drinking more beer, about two bottles, Hill and the defendant Stebbins started back to town. Hill testified that after they had proceeded a short distance Stebbins made a demand upon him for two dollars, which Hill declined to give him. Evans appeared on the scene about this time and upon Hill refusing to pay Stebbins, "the lie" was passed between them and a fight ensued. Hill testified that he was struck in the face and his eye blackened and he was knocked down, and that Stebbins or Evans, he did not know which, took his pocket book out of his left pants pocket and about five dollars. The marshal and night watchman testified that they saw Stebbins, Hill and Evans together on the street that night and that they were all drinking. Further evidence shows that they had several [188 Mo. 392] drinks from the time Stebbins first accosted Hill in the saloon until Hill reported to the police officers about midnight that he had been robbed. After they were arrested Stebbins and Evans were taken to the office of the prosecuting attorney, and Stebbins dictated a statement which is follows: "I, Johnnie Stebbins, of my own free will and accord make the following statement of the way in which I and William Evans robbed Wm. M. Hill. I have first been informed by the prosecuting attorney that the statement I am about to make will be used against me. On the 15th day of October, 1903, in Richmond, Ray county, Missouri, I and William Evans started out together after supper, and after awhile we separated. I met William M. Hill and he paid for the beer. We went up stairs to see a girl. We then went to Lela's. We then went to the sump and got a beer. Evans joined us there. We all three went to Pearl Salmon's and stayed there about an hour. Hill started away by himself. Wm. Evans and I went out after him. Evans said, 'Come on Skimmer, let's go.' After we crossed the bridge we overtook Hill. I...
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