Bower v. State

• Decision Date: 31 May 1838
• Citation: 5 Mo. 364
• Parties: BOWER v. THE STATE.
• Court: Missouri Supreme Court

5 Mo. 364

BOWER

v.THE STATE.

Supreme Court of Missouri.

May Term, 1838.

COLE, for Appellant. The indictment in this case contains two counts for the murder of Thompson, alias George Thompson, and the offense is charged in the language of the statute. On the trial of this cause there were eleven witnesses examined on the part of the State with regard to the facts connected with the offense, and two other persons were examined as to the confession of Bower. Independent of Bower's confession there was no proof that the dead body found was that of George Thompson, or the person seen with Bower at Madame Roussiere's. The prosecutor must have failed, therefore, in the absence of this proof--2 Stark. Evi. 945; but his confessions were introduced as evidence on the part of the State, and were considered as sufficient to warrant his conviction. I will proceed to examine the soundness of this conclusion. The law, with regard to confessions, is this: that the whole of the confession must be taken together, for, say the books, (1 Phil. Ev. 88; 4 Taunt. 245) the admission of a fact against himself shall not be received without receiving, at the same time, his assertion of a fact favorable to him, not merely as evidence that he made such assertion, but admissible evidence of the matter thus alleged by him in his discharge; and if there is no evidence incompatible with the confession, it must be taken as true; and further, that a prosecutor shall not call witnesses to impeach the credit of anything that has been said by his own witness. Arch. Crim. Plead. 121; 2 Gilbert's Ev. 891. In this case the prosecutor made Bower a competent and credible witness on the part of the State, and neither attempted to impeach, nor could impeach, the verity of his statement. His position, therefore, is that of a competent and credible witness, who was present at the killing of Thompson, who knew all the parties, and is cognizant of all the facts and circumstances of the transaction about which he is called to testify, and that he has told them truly. This witness states in substance as follows: “that Forbes, Bower and Thompson came to Herculaneum together, and there parted under an agreement to come together again at the forks of the road about two miles from Ste. Genevieve; that they accordingly met there; that so soon as they met together Forbes and Thompson began quarreling and fighting; that Forbes took a stick out of Bower's hand and knocked Thompson down; that Thompson jumped up and struck Bower on the head and cut his hat in the crown; then Bower, with a small stick, struck Thompson two blows on the back, and no more, and Forbes continued to strike deceased until he was dead, and jumped on his breast with his heels after he was dead, and then took and dragged him into the gully, where they stripped him, and Forbes took Bower's pantaloons in exchange for deceased's pantaloons, to keep from being known; that Forbes and Thompson had quarreled before, and that was the cause of their separation; that they had killed the man and were sorry for it; that Forbes threatened to strike Bower down if he did not strike Thompson: that he did strike him only two blows with a cane; that Bower did not kill Thompson; that Forbes told Bower if he would knock Thompson they would go to Orleans together.” This is the substance of the confession of Bower.

Having thus ascertained the facts of the case, all that remains is to apply the law. Murder is an offense defined by statute; the killing must be willful, deliberate and premeditated; all these are material to be alleged in the indictment, as descriptive of the offense, either in substance or in the language of the statute itself, and must be proved by the State, otherwise the prosecution must fail. Mo. L. 167. Those averments are of the essence of the offense. Murder is an offense created by statute, and the inference of malice does not arise under this statute from the mere fact of killing, as at common law. 2 Hale's Pleas Cr. 170; Arch. Crim. Plead. 23; Chitty's Crim. Law, 232, 16, 281, 557-9. The rule under that law is, that malice is an inference of law from the fact of killing, if there was no legal excuse shown by the defendant. 2 Gilb. Ev. 880. This inference can only arise under this statute when all the constituent parts of the offense, as defined by statute, have been proved on the part of the State, and without this, the supposition of law does not arise that the accused should be punished with death.

In order to convict Bower, then, it was necessary, on the part of the State, to prove, first, that Bower killed Thompson; second, that the killing was willful; third, that it was deliberately done; and fourth that the crime was premeditated. With submission, the evidence in the cause does not prove these facts; the witnesses introduced by the State, negative those averments in the indictment, and surely the doctrine of presumption cannot be allowed to overthrow facts in favor of the State, where the State would not be permitted to impeach their credit by witnesses. 2 Gilb. Ev. 891. However, I will say a word as to the application of circumstantial evidence to this case. A presumption is, where some facts being proved, another follows as a natural or very probable consequence from them, so as readily to gain assent from the mere probability of its having occurred without further proof. The fact thus assented to is said to be presumed.

Presumptions are violent, probable, or rash; the latter have no validity at all. How shall we apply this doctrine to the present case? Here we have all the facts proved by a competent, credible eye-witness. There is, therefore, no ground for a legal presumption to be deduced from. Suppose it was asserted that there was a legal presumption deducible from all the facts of this case, that Bower had murdered Thompson? I would, with submission, ask how can that be? for by such a proceeding you set aside facts that have a legal existence, and supply their place, in a case of life and death, by imaginary facts that have no legal existence. This would be to supercede a negative fact, clearly proved by an affirmative fact, not proved at all. It would be analogous to the verdict of a jury finding a person guilty of felonious homicide, when the evidence on trial clearly proved that the accused was not guilty. I have not considered the mass of testimony given in this case on the part of the State for the purpose of proving Bower guilty from circumstances, because Bower's confession was the last evidence given to the jury in point of time, and was a tacit admission on the part of the State, that the previous testimony before the jury was insufficient to maintain the indictment, and because presumed facts deduced from this evidence, and contradictory of facts as detailed in Bower's confession, could not be considered by a court of justice as legal evidence in the cause. It follows, therefore, that the circumstantial evidence in the cause, can only be received as evidence when it is found corroborative of Bower's confession, and not when it contradicts those confessions; and that, inasmuch as those confessions, taken altogether, do not prove him guilty of the crime alleged in the indictment, he is entitled, under the law of the land, to a reversal of the judgment of the Circuit Court, and new trial. It may be added, also, that, if the State, by contradictory evidence, has created a doubt whether Bower be guilty or not, he is entitled to the benefit of that doubt.

ZEIGLER, for Defendant.

The defendant's counsel contends that the Circuit Court erred in refusing to grant a new trial: 1. Because the evidence did not warrant a verdict of “guilty of murder in the first degree,” as rendered by the jury in this, that there was no evidence to show malice on the part of the prisoner; the whole matter, from the entire evidence, is involved in doubt and uncertainty; nothing but circumstantial evidence was introduced (except the confession of the prisoner), and that of such a nature as clearly comes under the denomination of light or rash presumptions; that the inference, drawn from the facts stated by witnesses, were not such as would necessarily follow those facts, and consequently the jury were not justified in rendering the verdict which they did, and for the same reason the court erred in refusing to grant a new trial.

2. There was no evidence (other than the confession) that the deceased came to his death by the hands of prisoner.

3. There was no evidence that sufficiently identified the deceasea to be the person last seen in company with the prisoner, other than the confessions of the prisoner, which, according to law, are confessions which are, that the whole of a confession must be taken together, if introduced by the prosecutor-- Roscoe, 41. And, says Chief Justice Bosanquet, the whole of a confession must be taken together. The prosecutor cannot select one part and leave another; and, also, that if there be no other evidence in the cause (which is the case here) or no other evidence incompatible with it, the declarations so adduced in evidence must be taken as true; and if, after the whole statement of the prisoner is given in evidence, the prosecutor is in a situation to contradict any part of it, he is at liberty to do so. 12 Common Law Reports, p. 292, Rex v. Jones. And then the statements of the prisoner and the whole of the other evidence must be left to the jury precisely as in other cases, where one part of the evidence is contradictory to another. Rex v. Claus, 19 Com. Law R. 354; Roscoe, 42. The counsel for the prisoner contends that there was no evidence whatsoever that in any respect contradicted the statements of the prisoner; but on the contrary the whole evidence actually corroborates the statement of the prisoner, and consequently the statements of the prisoner, according to the sound meaning and law, must be taken as true; and if so taken, cannot, according to the...