State v. Abel

• Citation: 8 S.W.2d 55
• Decision Date: 21 June 1928
• Docket Number: No. 28657.,28657.
• Parties: THE STATE v. MILLARD ABEL., Appellant.
• Court: United States State Supreme Court of Missouri

8 S.W.2d 55

THE STATE v. MILLARD ABEL., Appellant.

No. 28657.

Supreme Court of Missouri, Division Two.

June 21, 1928.

Appeal from Jackson Circuit Court. — Hon. Thad B. Landon, Judge.

REVERSED AND REMANDED.

George Aylward and Harry L. Jacobs for appellant.

(1) An offer to plead guilty on terms is inadmissible in evidence. Kercheval v. United States, 71 L. Ed. 657; State v. Meyers, 99 Mo. 107; People v. Boyd, 227 Pac. 783; State v. LaRose, 52 Atl. 943; Sanders v. State, 148 Ala. 603; Wilson v. State, 73 Ala. 527; State v. Kring, 74 Mo. 612; State v. Kring, 71 Mo. 551; Dean v. State, 161 S.W. 974; Commonwealth v. Lannin, 13 Allen (Mass.) 563; People v. Cignorak, 110 N.Y. 23; State v. Stephens, 71 Mo. 535; Heath v. State, 214 Pac. 1091; People v. Steinmetz, 240 N.Y. 411 (dis. opinion); White v. State, 51 Ga. 285; Heim v. United States, 47 App. D.C. 485; People v. Ryan, 82 Cal. 617; State v. Carta, 90 Conn. 79 (dis. opinion). (2) The alleged offer to plead guilty was inadmissible because involuntary and its repetition was unnecessary and prejudicial. State v. White, 292 S.W. 411; State v. Condit, 270 S.W. 279. (3) The court erred in refusing to allow appellant to show the circumstances under which he made the statements offered in evidence. (a) Circumstances surrounding a statement are admissible because they go to the weight of the evidence. State v. Brennan, 164 Mo. 487; State v. Stebbins, 188 Mo. 387; State v. Jones, 171 Mo. 401; State v. Condit, 270 S.W. 279; State v. McKenzie, 144 Mo. 40; State v. Hedges, 295 S.W. 575; State v. Kinder, 96 Mo. 548; State v. Moore, 166 Mo. 443; Williams v. State, 258 Mo. 1066; State v. Everhart, 289 S.W. 604; Carver v. United States, 164 U.S. 694; State v. Johnson, 289 S.W. 847. (b) Even where no objection is made to the admissibility of such statements, the accused may still show the circumstances surrounding same. State v. Reich, 239 S.W. 835; State v. Hayes, 247 S.W. 165. (c) Extra-judicial confessions or statements are always admissible in evidence, whether voluntary or involuntary, but after being admitted the accused may then show the circumstances surrounding same. Underhill Crim. Law, p. 304, sec. 215; Underhill Crim. Evid., p. 279, sec. 201; State v. Robinson, 117 Mo. 649; State v. Glasscock, 232 Mo. 278; 16 C.J. 715, sec. 1464; 9 Am. & Eng. Ann. Cas. 1215-16, note; State v. Campbell, 73 Kan. 688; People v. Sexton, 132 Cal. 37; People v. Parton, 49 Cal. 632; State v. Broughton, 7 Iredell (29 N.C.) 97; State v. Dixon, 260 Pac. 138; People v. Cassidy, 260 Pac. 313; People v. Ferdinand, 194 Cal. 555; State v. King, 78 Mo. 555; State v. Carlisle, 57 Mo. 102.

North T. Gentry, Attorney-General, and David P. Janes, Assistant Attorney-General, for respondent.

(1) The testimony of witness Jones relative to a conversation he had with the defendant in the jail in Kansas City was properly admitted. This conversation is to the effect that the defendant had sent for Jones by Sheriff Allbright, who stated to Jones that Abel wanted to talk to him. The defendant asked what the State would do for him in case he would plead guilty and turn State's evidence Jones made no promises and told him he was without authority to consider the matter in any way. Defendant then asked him to confer with the prosecuting attorney, and said: "Go talk to him, and I will spill my guts for five years." Jones told him that it was no use talking; that he could not plead guilty in a case like that for five years in the penitentiary. Appellant contends that this conversation should be treated as a plea of guilty and not admitted. They cite a long list of authorities to sustain their contention. It is clear that these authorities do not touch upon this point in any manner. Practically all the cases cited deal with situations where the defendant had entered a plea of guilty which was afterwards withdrawn, and the fact of making it in the first place admitted as testimony in a subsequent hearing of the case. It is true, as appellant's counsel contend, that this practice is held erroneous in most of the courts of this country, and is held erroneous in this State in the case of State v. Meyers, 99 Mo. 107. However, it is not so held universally. People v. Steinmetz, 240 N.Y. 411; State v. Carta, 90 Conn. 79. (2) Defendant's statement, under consideration here was not a plea in court. In fact it was not a plea of any kind, and by no process of reasoning or stretch of the imagination can it be made to rise to the dignity of a plea of guilty, or to come under the rule as laid down in the authorities cited by appellant. It was a statement by the defendant, made not only voluntarily, but at his invitation. The defendant, and not the State, or any officer of the State, took the initiative in bringing about this interview. Witness Jones held out no promises or inducements to cause the defendant to expect leniency because of anything he might say. On the contrary, Jones was very careful to make it clear to defendant that he had no authority to make any promises on behalf of the State. The statements of the defendant as given in the record cannot be considered even as admissions of guilt. Neither the conversation nor the written statement can be construed as being a confession or plea of guilt. This statement made by defendant was competent to go to the jury for whatever weight they might deem proper to give it. People v. Boyd, 227 Pac. 786. (3) Again if this conversation be considered as an offer to compromise his case, its admission was not error, and the rule in civil cases that admissions made to bring about a compromise are not admissible, does not apply in criminal cases. Underhill's Criminal Evidence, p. 331; State v. Soper, 16 Me. 293.

HIGBEE, C.

On June 17, 1926, the appellant and Carl Benson, Richard Miller and Earl Lawrence Abel were jointly charged by indictment with the crime of murder in the first degree, in that May 8, 1926, they shot and killed Harry T. McConnell in Jackson County, Missouri. On June 26, the defendant entered a plea of not guilty and was granted a severance. On a trial to a jury the defendant was found guilty of murder in the first degree as charged in the indictment and his punishment assessed at death. From a sentence in accordance with the verdict the defendant appealed.

The facts in this case are sufficiently set forth in the statement and summary of the evidence in State v. Benson, 8 S.W. (2d) 49.

At the trial of this case Ross Jones testified in substance: I am an investigator in the prosecuting attorney's office. The prosecuting attorney, Mr. Hanna, assigned me to investigate this case on Monday, May 10. I interviewed Millard Abel the first time in the general hospital on May 12. Detectives Shumway and Stephenson and police officers were present. Abel made a statement which I typed, after which he read it over and signed it. Later I had a conversation with Abel in the jail. He sent for me by Sheriff Allbright. He asked me what the State would do for him in case he would plead guilty — turn State's evidence.

"MR. AYLWARD: I object to that; it is highly improper. The plea is not guilty and I don't think any conversation of that sort is admissible here.

"BY THE COURT: Overruled. An exception was saved.

"Witness continuing: What would the State do for him in case he would plead guilty and turn State's evidence and I told him I did not know; I would have to talk to Mr. Hanna. He said: `Go talk to him and I will spill my guts for five years.' I said no use talking; you could never plead guilty in a case like this for five years in the penitentiary." Here the objection was renewed and overruled and an exception saved.

The admission of this evidence is assigned as prejudicial error.

In the brief for the State it is said that Jones made no promises and told Abel he was without authority to consider the matter; defendant said: "Go talk to him and I will spill my guts for five years." It is said in the brief that:

"Practically all the cases cited [by appellant] deal with situations where the defendant had entered a plea of guilty, which was afterwards withdrawn, and the fact of making it in the first place was admitted as testimony in a subsequent hearing of the case. It is true, as appellant's counsel contend, that this practice is held erroneous in most of the courts of this country and is held erroneous in the case of State v. Meyers, 99 Mo. 107, 12 S.W. 516. He merely says that he will turn State's evidence, or to use his words `spill his guts for five years.' In these words he does not admit his guilt and there is no way of knowing to what facts he would have testified had his offer been accepted."

We think it clear that this was an offer to plead guilty on condition that his punishment would be assessed at imprisonment in the penitentiary for five years. The language will not fairly admit of any other construction. The offer was rejected, yet the court permitted the State to prove the conditional offer to plead guilty.

In State v. Meyers, supra, l.c. 119, the defendant when arraigned pleaded guilty, but the court refused to accept the plea and it was not entered of record. At the trial, over the defendant's objection, the State was permitted to prove his plea of guilty when arraigned. This was held error. The court said, page 120:

"But this fact surely did not authorize the reception of the plea of guilty in evidence, after the court had refused to receive that plea, and had placed the defendant upon his trial. No one would contend that, if the plea of guilty had been entered of record, such plea could have been received in evidence against the defendant, and yet the same principle is involved whether the plea actually go upon record or not; in either case, it must, if received in evidence, be conclusive of the defendant's guilt. Like the previous question in parliamentary bodies, evidence of such a plea, having been made before a tribunal competent to try the party...