State v. Hershon, 31346.

• Decision Date: 04 January 1932
• Docket Number: No. 31346.,31346.
• Citation: 45 S.W.2d 60
• Parties: THE STATE v. JOE HERSHON, Appellant.
• Court: Missouri Supreme Court

45 S.W.2d 60

THE STATE v. JOE HERSHON, Appellant.

No. 31346.

Supreme Court of Missouri, Division Two.

January 4, 1932.

Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.

AFFIRMED.

Harry L. Jacobs and Isadore Rich for appellant; I.J. Ringolsky and Harry Friedberg of counsel.

(1) The court erred in giving Instruction No. 5. (a) Because it does not instruct the jury to disregard defendant's alleged statements if they were involuntary. State v. Thomas, 250 Mo. 189; State v. Harris, 232 Mo. 317; State v. Condit, 307 Mo. 393, 270 S.W. 286; State v. Nagle, 32 S.W. (2d) 596; State v. Powell, 258 Mo. 253; State v. Hardelein, 169 Mo. 579; State v. McBroom, 238 Mo. 495; State v. Creed, 299 Mo. 320; State v. Vaughn, 141 Mo. 514; State v. Hersh, 296 S.W. 436; State v. Reich, 239 S.W. 835; State v. Hayes, 247 S.W. 168; State v. Ellis, 242 S.W. 955; State v. MacKenzie, 144 Mo. 40; State v. Jones, 171 Mo. 401. (b) Because it instructs the jury that the State is entitled to the benefit of anything, and the defendant is bound by anything, he may have said against himself in any statement, that is, even in an involuntary statement. State v. Thomas, supra; State v. Schnurr, 225 S.W. 678; State v. Stibbens, 188 Mo. 387; Hanus v. State (Texas), 286 S.W. 221; Davis v. State (Ark.), 30 S.W. (2d) 832; United States v. Lydecker, 275 Fed. 979; Wilson v. United States, 162 U.S. 623, 16 Sup. Ct. 900; Bennett v. Commonwealth (Ky.), 11 S.W. (2d) 439; Lang v. State (Wis.), 189 N.W. 563; People v. Dudgeon (Mich.), 201 N.W. 356; People v. Clark, 105 Mich. 169, 62 N.W. 1117; People v. Howes, 81 Mich. 396, 45 N.W. 961; 1 R.C.L. 578; State v. Brooks, 220 Mo. 74; Justice v. State (Texas), 18 S.W. (2d) 658; State v. Kerns (N.D.), 198 N.W. 701; State v. Harding (Iowa), 216 N.W. 647. (c) Because it defines the word "voluntary." State v. Thomas, supra. (d) Because it assumes that an offense was committed. State v. Meininger, 306 Mo. 675, 268 S.W. 76; State v. Jones, 306 Mo. 437, 268 S.W. 87; State v. Jordan, 306 Mo. 3, 268 S.W. 70; State v. Hersh, 296 S.W. 436. (e) This entire instruction was an unwarranted comment on the evidence and an improper singling out, from all of the evidence, the defendant's statements. State v. Ball, 262 S.W. 1043; State v. Hersh, 296 S.W. 433; State v. Summers, 281 S.W. 123; State v. Liolios, 225 S.W. l.c. 948; State v. Wansong, 271 Mo. 50, 195 S.W. 999; State v. Hall, 7 S.W. (2d) 1006. (2) The court erred in giving Instruction No. 1. (a) Because it does not require the jury to find that any crime had been committed by the conspiracy. State v. McBroom, 238 Mo. 499; State v. Forsythe, 89 Mo. 671; Link v. Westerman, 80 Mo. App. 595. (b) Because it does not require a finding that the shooting was the direct, natural and proximate result of the conspiracy. 5 R.C.L. 1065, sec. 5; Powers v. Commonwealth, 110 Ky. 386, 53 L.R.A. 235; Spies v. People, 122 Ill. 1, 12 N.E. 865; Bowers v. State, 7 S.W. 247; State v. Linders, 299 Mo. 685, 253 S.W. 721; State v. Lewis, 273 Mo. 527, 201 S.W. 83. (3) The court erred in giving Instruction No. 9. Because said instruction erroneously defines the word "deliberation." State v. Sharpe, 34 S.W. (2d) 75.

Stratton Shartel, Attorney-General, and C.A. Powell, Assistant Attorney-General, for respondent.

(1) Murder may be charged to be "deliberately" done, and may be proved to have been committed during a robbery. State v. Peak, 237 S.W. 466; State v. Nasello, 30 S.W. (2d) 136; State v. Messino, 30 S.W. (2d) 750. (2) The killing of an officer, knowing him to be such, while escaping after robbery, is committed in "perpetration" of robbery, and is murder in the first degree only. State v. Messino, 30 S.W. (2d) 750; State v. Nasello, 30 S.W. (2d) 132; State v. Williams, 274 S.W. 427; State v. Moore, 235 S.W. 1056; State v. Turco, 122 Atl. 844; People v. Dowell, 266 Pac. 808. (a) When two or more people conspire to commit any crime that is inherently of such a nature that the commission thereof puts human life in jeopardy, and the conspirators agree to take all steps necessary to escape thereafter and to avoid arrest therefor, then in such case if a human life is taken by anyone of the conspirators, all of them are equally guilty of murder in the first degree. State v. Vaughan, 200 Mo. 1, and 203 Mo. 663; State v. Walker, 98 Mo. 95. (b) Where the conspiracy is to commit a crime, and murder is not contemplated in the scheme, but one of the conspirators, while committing the crime, deliberately kills a person, all the conspirators are guilty of murder in the first degree. State v. Hayes, 262 S.W. 1037. (3) Proof of a conspiracy to rob includes proof of common design to escape with loot and to kill anyone who may attempt to arrest the conspirators or try to interfere with their escape, and in case of a killing in such case, all conspirators are equally guilty. State v. Nasello, 30 S.W. (2d) l.c. 136; State v. Messino, 30 S.W. (2d) l.c. 759-760; State v. Williams, 274 S.W. 427. (4) Instruction Number 1 on conspiracy, in practically the same phraseology, has been approved by this court. State v. Williams, 274 S.W. 434; State v. Messino, 30 S.W. (2d) 760; State v. Nasello, 30 S.W. (2d) 132. It is not a comment on the evidence. State v. Williams, 274 S.W. 435. Proof of robberies committed a few minutes before by the three accomplices, that defendant and his companions were all armed and therefore prepared not only to rob but to accomplish their escape and prevent arrest, and no showing that the spoils had been divided or disposed of, the actions of the defendant and his companions in trying to evade the officers, and the shooting of the deceased, justified the giving of Instruction Number 1. State v. Williams, supra; State v. Messino, supra; State v. Nasello, supra. And this is true even though the officers did not know that the defendant and his companions had committed robbery. State v. Moore, 235 S.W. 1056. The points raised in appellant's brief that the court erred in giving Instruction Number 1 in that, first, the instruction does not require the jury to find that any crime had been committed by the conspiracy, and that, second, it does not require a finding that the shooting was the direct, natural and proximate result of the conspiracy, cannot be considered by this court for the reason that said complaints were not assigned as error in defendant's motion for new trial. State v. Kuebler, 14 S.W. (2d) 449; State v. Dalton, 23 S.W. (2d) 1. (5) Assignment that Instruction Number 5, on the statements and confessions of defendant, was based on evidence erroneously admitted over the objection of defendant, is too general. Sec. 3735, R.S. 1929. (a) Although instructions on statements and confessions have been criticized as commenting on the evidence, no case has ever been reversed on that ground. State v. Wansong, 271 Mo. 60; State v. Schnurr, 225 S.W. 678; State v. Liolios, 225 S.W. 948; State v. Hersh, 296 S.W. 433. See also State v. Lewis, 20 S.W. (2d) 537, holding that it is not a comment on the evidence. (b) There was evidence of statements and confessions, and therefore, the giving of the instruction thereon was proper. State v. Chappell, 179 Mo. 324. (c) Confession is presumed to be voluntary, even though under arrest when made. State v. Reich, 239 S.W. 835; State v. Midkiff, 278 S.W. 681; State v. Ball, 262 S.W. 1046. (d) An instruction as to the effect of statements and confessions need not require a finding that they were voluntary. State v. Simenson, 172 S.W. 601. (e) There was no evidence before the jury to the effect that the statements were involuntary. The only evidence of defendant being struck was by Officer Stewart when the defendant tried to get away at the garage. The fact that a doctor treated the defendant at the police station is no evidence of the use of third degree methods. It was an act of precaution on the part of the officers, for no doubt their experience had taught them that especially when prisoners had bruises on them and they confessed, they would later say that third degree methods were resorted to. So, a physician was called who found the bruises were not of a serious nature. Therefore, there was no necessity to instruct the jury to disregard the statements of the defendant if they found them to be involuntary, for there was absolutely no evidence before the jury, or claim on the part of defendant, so far as the jury knew, that the statements and confessions were involuntary. State v. McNeal, 237 S.W. 738; State v. Hutchens, 271 S.W. 530; State v. Schnurr, 225 S.W. 675. We admit that if there was any evidence of the statements and confessions having been involuntarily obtained, the court should have instructed the jury to disregard them if involuntary, for no doubt in such cases the instruction as given is not complete. However, this court has approved an instruction in the exact language as Instruction Number 5, and in a case where there was evidence before the jury that the confession was involuntary. State v. Williams, 274 S.W. 436. See also State v. Hutchens, 271 S.W. 530. (6) Although this court has held that the instruction defining "deliberation" is erroneous, State v. Sharpe, 34 S.W. (2d) 75, said instruction and the definition therein of "deliberation," have been specifically approved by this court in the following and many other cases: State v. Weiners, 66 Mo. 27; State v. Furgerson, 162 Mo. 677; State v. Fairlamb, 121 Mo. 146; State v. Grant, 152 Mo. 70; State v. Barrington, 198 Mo. 102; State v. Spaugh, 200 Mo. 606. So far as we can ascertain, this instruction has not been assailed for several years except in the case of State v. Murphy, 29 S.W. (2d) 144, and in the Sharpe case. Without exception, in every case, the instruction defining "deliberation" is in the exact language as the instruction in this case. In these cases the definition was not challenged and therefore does not appear in the opinions. The Sharpe case can be...