State v. Creed

Decision Date09 April 1923
Docket NumberNo. 23721.,23721.
PartiesSTATE v. CREED et al.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

Thomas Creed and Robert Creed were convicted of murder in the first degree, and they appeal. Reversed and remanded.

Harvey & Baer, of St. Louis, for appellants. Jesse W. Barrett, Atty. Gen., and Henry Davis, Asst. Atty. Gen., for the State.

Statement.

DAVIS, C.

Robert Creed and Thomas Creed were convicted, after a three-day trial, on the 23d day of April, 1921, of murder in the first degree, and their punishment fixed at imprisonment in the penitentiary for their natural lives, for that, on the 31st day of October, 1920, they shot and killed George Geisler, a police officer of the city of St. Louis. The evidence on behalf of the prosecution was to the effect that the two defendants, Thomas Creed and Robert Creed, in company with a lewd woman named Edna Brooks, on the afternoon, about 5 o'clock, of the aforesaid day, entered a saloon or "soft drink parlor" of one William F. English, at the southwest corner of Clark avenue and Twenty-First street, in the city of St. Louis; that soon thereafter, while the two defendants and the said Edna Brooks were standing at the bar and all of them drinking whisky, Police Officer Geisler entered and spoke to the defendants and others as he passed to the rear of the room; that upon his returning to the saloon a short while thereafter an altercation occurred between defendant Robert Creed and Officer Geisler, during which Creed referred to Geisler's brother as being a thief, and used offensive epithets to the officer (testimony of Wm. F. English). Defendants then went to him, taking positions on either side of deceased. During said altercation the officer struck Robert Creed with his club (testimony of Edna Brooks). Thereupon there was a struggle between the officer and the Creeds, and the three of them retreated through the opening at the, end of the bar into a large back room connected with the saloon, the deceased being shoved and pushed through by defendants, and shortly thereafter shots were fired in said room, whereupon all the numerous persons in the saloon proper fled to the street through the front door, including Edna Brooks, according to her testimony given before the coroner the morning after the homicide and before the grand jury the same day, as admitted by her on cross-examination. On this trial, however, she stated that she closely followed the defendants and the officer into the aforesaid back room, and there tried to prevent any shooting, the officer having his hands up and the defendants being on either side of him, and that shots were fired so close to her as to powder-burn her; that just after the shooting she ran out into the saloon, and was hanging upon the railing of the bar, and while there saw the officer run out through the barroom, and shortly thereafter the defendants, and said that she saw a gun in the hand of one of them as they passed, and then she went out on the sidewalk, and saw the officer fall in the street. She thought that the defendants and the officer were talking in a friendly manner, and did not hear any epithets or abusive language by the defendants until just after the officer struck Robert Creed across the face with his club.

There were a number of people in the saloon, playing cards and standing around, who saw the officer come in, and he and the defendants talking or arguing together, and who, upon hearing the shots, ran from the saloon. Soon after the shooting the hat, revolver, and club of the officer were found on the floor of the aforesaid back room. The testimony of Edna Brooks in regard to the officer using his club upon the defendants was corroborated by witness Hancen and by witness Thomas O'Connor; and witness John J. Gorman testified that the officer, just before he entered the saloon, made threats against the life of Robert Creed.

Defendants' testimony was that before going to the English saloon they had been drinking, but that no pistol was given to them. One witness testified that the deceased said just before entering the saloon:

"I see that s___ o___ a b___ Creed here again. About the only way that I can keep him off my beat is to kill him."

Another witness said that the officer, upon entering the saloon, approached the appellants and cursed Robert Creed, began striking him, and drove him into the back room; that Tom Creed asked the policeman not to hit Bob, but just to lock him up. This witness did not see the shooting, but heard Tom Creed say immediately, afterwards, "What have you done, Bob? what have, you done?" He heard Bob Creed reply, "He caused it himself, Tom."

Opinion.

It is a general rule of law that the testimony of a contradicted, impeached or discredited witness cannot be confirmed by proving that he made similar declarations out of court. People v. Katz, 209 N. Y. loc. cit. 333, 103 N. E. 305, Ann. Cas. 1915A, 501. An exception to the rule is later noted.

In objecting to the admission in evidence of the rehabilitating statement of witness Edna Brooks, the defendant takes the position that her trial testimony, having been impeached on cross-examination by her testimony before the coroner, and on her first appearance before the grand jury, could not be restored by statements made subsequent to the impeachment. To lucidly understand the proposition presented, a review of the evidence in II propos.

On the same evening, subsequent to the shooting, Edna Brooks was arrested. The next morning, about 6 a. m., she made a statement in writing to the police officers, in effect, that she did not see the shooting. This statement was made after a sleepless night, caused by the officers constantly grilling her and calling her a damned liar. Later in the morning she was examined before the coroner and the grand jury, her evidence tending to show before each:

"That she saw the deceased hit defendant Bob Creed with a club, after which there was some scuffling between them, and then she saw everybody get up and start to run, and she heard some shots, and she ran, too; that she knew positively the Creed boys had no gun."

She was again incarcerated and again grilled. The police captain accused her of perjury before the coroner and grand jury. (On the trial, she admitted perjury before the coroner and on her first appearance before the grand jury.) She was questioned by him five hours, and advised that perjury was punishable by imprisonment in the penitentiary, and that, if she did not tell the truth, she would again be turned over to a certain officer (whom she seemed to fear) for inquiry. That afternoon, about 5:30 p. m., being without sleep for about 36 hours, she made a supplementary written statement, in effect, that she saw Bob Creed and Tom Creed wrestling in the back room with deceased, saw a pistol in Bob Creed's hand, begged them not to shoot deceased, but they did so, shooting so close to her that the powder burned her hand. Over the objection and exception of defendant, to rehabilitate her testimony, the state introduced the supplementary statement made by the witness to the police.

We think the admission, in evidence, of the supplementary statement, was error. It is clear, from the epitome of facts, that the supplemental or additional statement made by the witness to the police does not come within the exception to the general rule that the testimony of an accomplice in crime may be corroborated by showing that when first arrested he gave the same relation of facts which he had given on oath during the trial. The statement introduced in evidence by the state was an attempt to prove the verity of evidence made on oath by a statement not on oath at a time when the witness had been coerced by loss of sleep and a grilling such as to overpower her will. The defendant had discredited the witness by cross-examination and by her admission of perjury. The purpose of the state was to rehabilitate it. There were two inconsistent statements, one of which was necessarily false. Defendant did not offer the cross-examination to prove the verity of her testimony, but to show that it was unworthy of belief and could not be relied upon. Her testimony was discredited, and she was a perjurer by her own admission. Her impeachment was not disproved by the use of the supplementary statement, and that was all it offered to establish; nor was it admissible as substantive proof, for it was, hearsay. The only way to meet evidence of a contradictory statement is to prove the witness did not make it. In the present cast) she admitted making it.

There seems to be no doubt that at the time the witness made the supplemental statement, she was under the moral and physical duress of the police department. Her interest and motive was to escape punishment and obtain sleep and peace. Her will power had been battered down, so that she was under the complete domination of the police, and while it is possible for her testimony, given at the trial, to be true, the coercion used was sufficient to cast grave doubt upon its verity. As was said in Legere v. State, 111 Tenn. 368, loc. cit. 374, 375, 77, S. W. 1059, 102 Am. St. Rep. 781, in no case, so far as we have been able to discover, has corroborative testimony been admitted when it was to the interest of the witness to make a false statement. Ewing v. Keith, 16 Utah, 312, 52 Pac. 4; Conrad v. Griffey, 11 How. (52 U. S.) loc. cit. 491, 13 L. Ed. 779; Ellicott v. Pearl, 10 Pet. 439, 9 L. Ed. 475.

The supplementary statement was again inadmissible, for that it was made subsequent to the testimony by which the witness was impeached. Such testimony may not be used...

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