State v. Christian, 42715

• Decision Date: 11 February 1952
• Docket Number: No. 42715,No. 1,42715,1
• Citation: 245 S.W.2d 895
• Parties: STATE v. CHRISTIAN
• Court: Missouri Supreme Court

Page 895

245 S.W.2d 895

STATE v. CHRISTIAN.

No. 42715.

Supreme Court of Missouri, Division No. 1.

Feb. 11, 1952.

C. A. Powell, Dexter, Elvis A. Mooney, Bloomfield, for appellant.

J. E. Taylor, Atty. Gen., Lawrence L. Bradley, Asst. Atty. Gen., for respondent.

HYDE, Judge.

Defendant appeals from conviction of robbery in the first degree and sentence of five years in the penitentiary.

Defendant was charged in connection with the robbery of the Bank of Gordonville in Cape Girardeau County. A jury case against defendant is conceded and the errors assigned on this appeal are in connection with the cross-examination of one of the State's witnesses, the cross-examination of defendant and the argument of the prosecuting attorney.

The bank was robbed about 10:10 A.M. on February 21, 1950. There men drove up in a blue Mercury and parked in front of the bank. Two of them went in and took money and currency from the bank employees at the point of a pistol. Defendant was identified as the man who remained in the car by two witnesses on the street at the time. He lived at Dexter and owned a blue Mercury. He was arrested about five weeks later, after he had attempted to dispose of some of the money, (15.00 in pennies) traced as belonging to the bank (by the money bag and marked coin wrappers) which was buried on his father's farm. The State also had evidence of an admission of participation in the robbery, made by defendant to a fellow prisoner while in jail at Jackson. Defendant's defense was alibi.

One of the State's witnesses, Highway Patrolman Dale Crites, testified concerning finding the money bag and coin wrappers and questioning defendant about the disposition of the pennies. He was cross-examined about those matters and then about the further questioning of defendant after he was arrested. The following, which is the basis of defendant's first assignment of error, then occurred:

'Q. You arrested Christian about what time that night? A. As I recall, about ten-thirty.

'Q. You fellows questioned him until about what time in the morning? A. Well, we questioned him off and on up until possibly four o'clock.

'Q. Did he ever admit he had anything to do with Gordonville bank robbery? A. No. Not exactly. He asked one time what he would get if he would admit it. He wouldn't admit doing it.'

Defendant's counsel asked that the jury be discharged and this request was denied. Patrolman Crites was then further cross-examined by defendant's attorney, as follows:

'Q. I am talking about the night he was arrested. Did he say anything that night about having anything to do with the robbery? A. No. He denied having anything to do with it. * * *

'Q. Did he say that night he wanted to know what would happen if he would plead guilty to it? A. Yes, sir.

'Q. Where did he say that? A. In the city hall.'

Defendant assigns as error the Court's failure to take any action either to direct the jury to disregard the statement that defendant asked what he would get if he would admit his participation in the robbery or to discharge the jury. Defendant relies on State v. Abel, 320 Mo. 445, 8 S.W.2d 55, 56 and State v. Cardwell, 332 Mo. 790, 60 S.W.2d 28. In the Abel case testimony, considered as to an offer to compromise, was introduced by the State and not brought out by the defendant on cross-examination as here. The reason for holding evidence of such an offer to compromise inadmissible is thus stated in the Abel case: 'The offer by the defendant was not an extra judicial confession; it was an attempted negotiation for a compromise, not of a felony, but of the punishment to be inflicted. The defendant was charged with a capital offense; he stood in the shadow of the gallows. His offer was not inconsistent with a plea of not guilty. By his offer he, in effect, said he would plead guilty on condition that his punishment would be assessed at imprisonment in the penitentiary for five years rather than take the chance of the death penalty. This he had a right to do. * * * If this had been an offer to compromise a civil action, it would have been privileged. We can see no good reason why it should not be so considered in a criminal action. The offer to plead guilty should have been accepted and sentence passed upon it, or it should have been rejected, and 'never have been heard of again.' The prosecuting attorney should not have been allowed to reject the conditional offer and afterwards use it against the defendant at the trial.' See also State v. McMurphy, 324 Mo. 854, 25 S.W.2d 79; State v. Meyers, 99 Mo. 107, 12 S.W. 516.

In State v. Cardwell, supra, as in State v. Meyers (quoted from in the Abel case) the State offered evidence of a plea of guilty which was not accepted. The ruling that this was improper is in accord with the weight of authority although there is authority the other way. See 20 Am.Jur. 420, Sec. 481; Annotation 124 A.L.R. 1527; 4 Wigmore on Evidence 66, Sec. 1067; Wood v. U. S., 75 U.S.App.D.C. 274, 128 F.2d 265, 141 A.L.R. 1335. The Abel case is based on the Meyers case and it assumes that an offer to compromise on punishment should be treated the same as a rejected or withdrawn plea of guilty. However, on the matter of an offer to compromise a criminal case, 'it is generally held that an offer of compromise or of restitution of the property which is the subject of the crime, whether accepted or not, may be received in evidence'. 22 C.J.S., Criminal Law, Sec. 736, p. 1268; see also 4 Wigmore on Evidence 31, Sec. 1061; 20 Am.Jur. 440, Sec. 511; State v. Belknap, Mo.Sup., 221 S.W. 39; Wilson v. State, 31 Ala.App. 560, 19 So.2d 777; Bond v. Commonwealth, 236 Ky. 472, 33 S.W.2d 320; Waldrip v. State, 130 Tex.Cr.R. 205, 93 S.W.2d 414; Duffer v. State, 136 Tex.Cr.R. 199, 124 S.W.2d 355. Wigmore explains why the rule in civil cases does not apply in criminal cases as follows: 'In a criminal prosecution, the accused's offer to pay money or otherwise to 'settle' the prosecution will be received against him, because that mode of stopping or obstructing the prosecution would be an unlawful act, and good policy could not encourage that mode of dealing with a criminal charge; hence such an offer is receivable for whatever inference may be drawn from it; subject, of course, to the accused's explanation. But an unaccepted offer to plead guilty is governed by the rule for pleadings (post, Sec. 1067).'

We think there is a difference between negotiations to compromise a civil case and attempting to compromise even on punishment in a criminal case, as well as in the applicable public policy, apparently overlooked in the Abel case. A compromise of a civil case rests entirely upon the agreement of the parties, which is binding upon the Court, and public policy favors disposition of litigation by this method. It is fundamental that no agreement concerning punishment can be made between a defendant in a criminal case and police or prosecuting officers, which is binding on the Court, and, therefore, public policy does not favor such bargaining for punishment. There is also a substantial difference between a plea actually made in Court (which the Court in its discretion decides should be rejected or withdrawn) and a mere offer to make a plea upon certain conditions as to punishment. Certainly, in this case, where the matter was brought out on cross-examination of a State's witness in the way it was, we cannot say it was error for the Court to refuse to take the action requested. It will be noted that the question was: did defendant admit he had anything to do with the robbery? This, in effect, called for the witness' conclusion as to what amounted to an admission and, in view of the above authorities on the matter, it was not unreasonable for the officer to consider the defendant's statement to be in the nature of an admission and thus within the scope of his answer to the question. We, therefore, overrule this assignment.

Defendant's second assignment is that it was error to permit cross-examination of defendant in regard to two notes (State's Exhibits 12 and 13) to a fellow prisoner Bill Wills and to admit these two Exhibits in evidence. They are as follows:

'State's Exhibit 12

'(Original in pencil writing)

'Bill. How are you Say John Acain told me you were O.K. Bill I need your help on my trial. Would you help me.

'Bill would you write me what I send you a copy to copy off of. If you are game. It will be worth $500 to me. It will be deposited in your name in any Bank you say. Bill I want you to understand that it is about one of your Buddy Maddox.

'Bill if I get out I have a good go in my business. I need your help and John Acain said you would. What about it. Now Bill you would have to go on witness stand against Maddox and Coon upstairs you understand. I will write what I want you to copy. I already have the thing for you to say. Put your answer on here.'

'State's Exhibit 13

'(Original in pencil writing)

'This is what I want you to write. On this other sheet of paper.

'I heard Thurman Abbott say to Clarence Maddox that Paul Christian was not in on the Bank Robbing or any other job of any kind. Thurman Abbott said Paul owed him some money and he was going to get even in this way and he said another guy by a nick name Red. Thurman said that he gave Red those pennies sometime before he went to Michigan. Thurman told Maddox that when he gave Red the pennies to say he got them from Paul Christian.

________

'Sign your name here.

'Bill I need this bad so please help me. You name the place where you want it put and I will double it. Bill it will take me about a year to put it there for you. But it will be there. You just name the place. I have two other guys talking. You get this don't you.

'Bill I am counting on you. John Acain said you probably would. I am sure counting on you.

'Your Buddy

'I need you as a witness at the trial. Will you be for me I would like to have this back as soon as possible because I may get to...