Couley v. State

• Decision Date: 31 October 1849
• Citation: 12 Mo. 462
• Parties: FRANCIS COULEY v. THE STATE OF MISSOURI.
• Court: Missouri Supreme Court

12 Mo. 462

FRANCIS COULEY

v.THE STATE OF MISSOURI.

Supreme Court of Missouri.

October Term, 1849.

APPEAL FROM ST. LOUIS CRIMINAL COURT.

SHARP, for Appellant.

1st. When confession is made by a defendant it must appear that the confession was made free and voluntary; and that any confession or admission of guilt, or any fact which may tend to the proof of it, made by the defendant under inducements held out to him to produce a confession, whether those inducements are of a character to create hope in the mind of the defendant that he may by making such confession escape temporal punishment, or of a different character and calculated to produce fear in the mind of the defendant; the confessions so made are inadmissible evidence. Arch. Crim. Ev. 109, 110; Roscoe Crim. Ev. 29, 30, 31, 32; 1 Leach, 263; 6 Wend. 568. 2nd. That confessions made upon inducements, such as “it is better to tell me all about the matter, and I will not appear against you, and you can give State's evidence in the case if others have not,” or any other similar inducement which leads the party to an involuntary confession or admission, is improper evidence to be admitted in a criminal cause. Arch. Crim. Pl. 109 to 112; 2 Hale, 285; 2 East's P. C. 659; Rex v. Drew, 8 Car. & Payne, 140; 5 Car. & Payne, 518, 290; 2 Starkie's Ev., Rex v. Bailey, 23. 3rd. Confessions made to other persons than the officer interested in the arrest or apprehension of the defendant, such a confession is presumed to be under the influence of such inducements, and should not be received. That in this case the confessions made to young Nesbit, son of the banker who was robbed, and who was at the time in Cincinnati in quest of the defendant, and who was in company with the officer who presented the inducements spoken of in the evidence, and on board as a passenger in the same boat at the time the confessions were made, which should have been excluded from the jury. 2 East's P. C. 658; 1 Philips' Ev. 104; Arch. Crim. Pl. 112.4th. The court erred in giving the instructions to the jury as contained in the record; 1, because they were calculated to mislead the jury, and 2, because they are not the law; a bare inspection of them is sufficient. 5th. The court erred in refusing the instructions asked for by defendant: 1, because they are the laws, and, 2, because they were necessary to instruct the jury as to the proper weight and importance to give to confessions made under such circumstances, and while these bare confessions were the only evidence of defendant's guilt. See instructions. 6th. That the court committed error in refusing defendant a new trial upon the suggestion of defendant's counsel and the several affidavits filed, although the time for filing a motion for a new trial had past. 5 Mo. R. 323.

LACKLAND, for The State. There was not such an inducement as to make the confession inadmissible. Because it is not such an inducement as was calculated to make the confession of defendant an untrue one, which is the test. Wharton's Crim. L. 186; Arch. Crim. Pl. 110. Micheaux does not appear by the record to have been an officer or one in authority, but that he officiously, without any kind of authority, promised, and promised without the means of performance. In like cases is the confession admissible. Wharton's Crim. L. 185; 8 Car. & Payne, 733; 7 Car. & Payne, 776. Where the witness said to defendant that he might say what he had to say to him, for it should go no further, a statement thereupon made by the defendant was held admissible. Wharton's Crim. L. 186; Rex v. Thomas, 7 Car. & Payne, 345, top paging, 536.

A promise to be a sufficient inducement must be a positive (and not a conditional) promise of some benefit in the power of the promisor to perform, and tliat the promise must have been calculated to urge the defendant to make an untrue confession. The promise in this case was insufficient to make the confession of defendant inadmissible: 1st. Because it was a conditional promise, the performance of which conditions was beyond the power of the promisor, and this the law presumes was within the knowledge of defendant. 2nd. Because the benefit could have resulted to the defendant if the witness, Micheaux, had kept his promise and had refused to be sworn, and had never said anything about the confession. The defendant then would have been in precisely the same condition as he was before he confessed to Micheaux. The confession, therefore, could not have been induced by the hope of benefit. The latter portion of what is contended to be a promise states, “that he might turn State's evidence if none of the others had so done, and thereby get clear.” This, it is contended, does not amount to a promise at all on the part of Micheaux of anything.

The court did not err in refusing to grant a new trial on account of newly discovered evidence. Because the affidavit is insufficient. It should set forth the name of the witness, the matter he can swear to: the matter of new testimony is not set forth in the affidavit, &c. Graham's Pr. 631; Graham's Pr. 463. The court did not err in refusing the instructions asked by defendant's counsel, because they all where either bad law or contained in the instructions given by the court. Court did not err in refusing the first five and seventh instructions asked for by defendant's counsel, because said instructions make it incumbent upon the jury to decide the competency of the instructions, which is a question to be decided by the court. Hector v. State, 2 Mo. R. 135; Wharton's Crim. L. 188. The court did not err in refusing to give the sixth instruction asked for by defendant's counsel, which is follows: “That it is incumbent on the State to prove the actual stealing, taking or carrying away of the goods, or the possession of such stolen goods unaccounted for by defendant, and that in the absence of such proof the jury should acquit.” This instruction is wrong in this, that it goes upon the principle that no one can be guilty of larceny except he actually carry off the property himself by by his physical strength, or that the property be found in his possession and he fail to account for the possession. This is not the law, because he could be guilty of larceny without the existence of any of the facts mentioned in said instruction. A party may be guilty of larceny without the stolen property having been taken away by the hands of the accused. Roscoe's Crim. Ev. 469.

The court did not err in refusing the 8th and last instructions asked by defendant's counsel. Because said instruction declares that defendant could not be guilty of burglary, unless he actually assisted in breaking the house, &c. Roscoe's Ev. 258, 259.

RYLAND, J.

The indictment in this case contained two counts; the first for burglary and the second for grand larceny. The defendant was found guilty on both counts, and sentenced to imprisonment on the first count for ten years, and on the second for five years. On the trial the burglary was proved by R. N. Nesbit, the person whose house had been robbed. The State also introduced as witnesses, S. Micheaux, the officer who arrested the prisoner, and B. Nesbit, a son of the prosecutor. Their testimony was as follows: “The first time I saw defendant was in Cincinnati, Ohio; went there after him and others; had a warrant; saw young Nesbit (Benjamin) there; found the defendant in jail there. I brought him to St. Louis; found nothing on his person. I know the house that was robbed, and saw it after the entrance had been made in it; a door opened from the side into the base of the building where the vault was; the vault had been cut through; saw an axe and crow-bar there; saw some powder; the marks of it where it had been burnt. I have conversed with the prisoner. I told him to tell me all about the matter, as I would say nothing about it. My object in telling him this was not to get the money but to catch the other parties. The prisoner told me he was there on the night of the robbery at the house of Nesbit & Co.; he told me of three others that were there; he said he did not know any of them by name, but from my description of them he said they were the persons; he told me that those I described were the principal actors; that he, defendant, did not go into the house, but stood on the outside and kept a look out; he said he met those men who were with him at the robbery on the river; they induced him to St. Louis. After the money was taken they took it to the northern part of the city and divided it after daylight; they got through the robbery in the morning before daylight; had some difficulty in removing one bag of money; it was divided among them; some of the money was worthless; he said it was his first offense; that he was a pilot on a steamboat.” Cross-examined by defendant.--“This conversation was on board the steamboat in the state-room, and shortly after leaving Cincinnati, and between that place and Louisville; the prisoner was ironed with hobbles by myself. I had no conversation with defendant in the jail at Cincinnati, Ohio; young Nesbit and the city marshal went with me to see defendant in the jail there; they left at the same time I did. I had many conversations with defendant on way from Cincinnati; do not recollect that defendant told me the amount of money which he got, but said it was less than what the others had. I promised the defendant that I would not appear against him in court if he would confess and tell me all about the act, as my object was to catch them. I told him that it would be better for him to tell me all about it, and that I would give him my honer as a man that I would not appear against him in court unless compelled to, and that he could give State's evidence if none of the other boys had confessed it; that they had not done so before I left St. Louis. I told him that if I was called I would object to being sworn, as I would not swear against him. I presented inducements to the prisoner to...