State v. Higdon

• Citation: 204 S.W.2d 754,356 Mo. 1058
• Decision Date: 13 October 1947
• Docket Number: 40074
• Parties: State v. William Harold Higdon, Appellant
• Court: United States State Supreme Court of Missouri

204 S.W.2d 754

356 Mo. 1058

State v. William Harold Higdon, Appellant

No. 40074

Supreme Court of Missouri

October 13, 1947

Appeal from Circuit Court of City of St. Louis; Hon. Waldo C Mayfield, Judge.

Affirmed.

Robert Y. Woodward for appellant.

(1) The court erred in refusing instruction on oral statement by the defendant after testimony by State witness Soete, that statement was made 40 hours after arrest, without warrant or due process. Evidence of duress by 40 hour imprisonment question for jury. In most of the cases cited below confession was in evidence but instruction was given by the court. R.S. 1939, sec. 4346; State v. Moore, 160 Mo 443, 61 S.W. 199; State v. Miller, 316 Mo. 372, 289 S.W. 898; State v. Owens, 302 Mo. 348, 259 S.W. 109 rejecting Prof. Wigmore's views; State v. Ellis, 193 S.W.2d 31; State v. Clark, 147 Mo. 38, 47 S.W. 886; State v. Butts, 349 Mo. 213, 158 S.W.2d 790; State v. Haskins, 327 Mo. 313, 36 S.W.2d 909; State v. Mitchell, 339 Mo. 228, 96 S.W.2d 341; State v. Menz, 341 Mo. 74, 106 S.W.2d 440; State v. Reed, 154 Mo. 129, 55 S.W. 278; Lyons v. Oklahoma, 322 U.S. 596, 64 S.Ct. 1208; Runnels v. United States, 138 F.2d 346; McNab v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192; United States v. Haupt, 136 F.2d 661; Skiba v. Kaiser, 352 Mo. 424, 178 S.W.2d 373; Anderson v. United States, 318 U.S. 350, 63 S.Ct. 509, 87 L.Ed. 829; United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140; State v. Gibilterra, 342 Mo. 577, 116 S.W.2d 88; State v. Di Stefano, 152 S.W.2d 20; State v. Aitkens, 352 Mo. 746, 179 S.W.2d 84; People v. Malinski, 292 N.Y. 360, 55 N.E.2d 353. (2) That the court prejudicially erred in overruling appellant's motion in the form of a demurrer filed at the close of the State's case. State v. Scott, 177 Mo. 665; State v. Tracy, 284 Mo. 619; State v. Duncan, 317 Mo. 451. (3) That the court erred in refusing to order "subpoena duces tecum" for the police files to impeach testimony by Officer Soete as to statement by Higdon being part of Soete's report. The court ruled the reports were not evidence, but defendant is entitled to look at them and inform himself for foundation for impeachment of witness, or for other reasons. Defendant should be entitled to every reasonable means of defending himself. See "The Trial of Aaron Burr," pp. 182-5; State ex rel. v. Falkenhainer, 231 S.W. 257; State v. Powell, 167 S.W. 559; People v. Fox, 3 N.Y.S. 359, 121 N.Y. 449, 24 N.E. 923; Commonwealth v. Shaffer, 178 Pa. 409, 35 A. 924. (4) That the court erred in permitting Assistant Circuit Attorney Bantle to comment and argue on points of law, without reading from the instructions, and improperly quoting the law over defendant's objection. State v. Reed, 71 Mo. 200; State v. Davis, 225 S.W. 707, 284 Mo. 695; State v. Gueringer, 175 S.W. 65, 265 Mo. 408; State v. Dengel, 248 S.W. 603; State v. Reppley, 213 S.W. 477, 278 Mo. 333. (5) That the court erred in failing to instruct the jury upon points of law necessary for them to reach their verdict and on all the law applying to the evidence and facts. State v. Reed, 154 Mo. l.c. 129, 55 S.W. 278; Sec. 4070, R.S. 1939. (6) That the court erred in giving instructions "one," "two," "three," "four," "five," "six," and its failure to give instruction on "duress" or "voluntary" statement, and instructions as given were a comment on the evidence and did not properly give the jury, in writing, all questions of law arising in the case necessary for their information in giving their verdict, and that the court failed to instruct the jury, in writing, on duress, voluntary statement, or oral statement obtained after 40 hours arrest without warrant or due process. Sec. 4070, R.S. 1939.

J. E. Taylor, Attorney General, and C. B. Burns, Jr., Assistant Attorney General, for respondent.

(1) The court did not err in failing to give an instruction on the voluntariness of the oral confessions of the appellant. State v. Gibilterra, 342 Mo. 577, 116 S.W.2d 88; State v. McNeal, 237 S.W. 738; State v. Ellis, 193 S.W.2d 31; State v. Sanford and State v. Ellis, 193 S.W.2d 37. (2) The court did not err in overruling appellant's motion in the form of a demurrer filed at the close of the State's case. State v. Hoskins, 327 Mo. 313, 36 S.W.2d 909; State v. Hubbard, 351 Mo. 143, 171 S.W.2d 701. (3) The court did not err in denying appellant's request for a subpoena duces tecum for the police files in this case. 70 C.J., pp. 51, 53; State v. O'Malley, 342 Mo. 641, 117 S.W.2d 319. (4) The court did not err in overruling appellant's objection to the assistant circuit attorney's argument to the jury. State v. Wilson, 237 S.W. 776. (5) The court correctly instructed the jury upon all points of law necessary for them to reach a verdict. Sec. 4125, R.S. 1939; State v. Dollarhide, 337 Mo. 962, 87 S.W.2d 156; State v. Goddard, 316 Mo. 172, 289 S.W. 651; State v. Speritus, 191 Mo. 24, 90 S.W. 459; State v. Sprague, 149 Mo. 425, 50 S.W. 901; State v. Wells, 234 S.W. 825; State v. Peters, 123 S.W.2d 34; State v. Farrell, 6 S.W.2d 857; State v. Creighton, 330 Mo. 1176, 52 S.W.2d 556.

OPINION

Bohling, C.

William H. Higdon appeals from a judgment imposing a sentence of two years' imprisonment upon a conviction of grand larceny. The information charged defendant with having committed burglary and larceny. The verdict of the jury found him guilty of larceny only. The evidence established that the sandwich shop of Mrs. Frances Clary at 4044 North Grand, St. Louis, Missouri, was broken into and in excess of $ 40 in money was taken on the night of September 3, 1945. Statements made by defendant were admitted in evidence, without objection, wherein he confessed his guilt and narrated how he had forced an entrance through the door, breaking it, and had taken the cash box and money therein. This, of course, was sufficient to submit defendant's guilt to the jury. There was no evidence offered on behalf of defendant. At the close of the case counsel requested the court to give an instruction on defendant's statements, stating that it was "the duty of the court to instruct on all phases of the evidence." The court refused the request because there was no evidence whatsoever that defendant's statements were involuntary. Counsel was of opinion "that that was not the law" and excepted. The facts on the issue follow:

The larceny, according to defendant's statement, occurred after 1 a.m. September 4, 1945. Defendant heard the police were looking for him and about 7:30 or 8 p.m. of September 4 he voluntarily surrendered himself at the police station. Questioned by the police about 9 a.m. September 5, defendant denied his guilt. Defendant had been attentive to one of the waitresses in the sandwich shop and Mrs. Clary knew him. She saw him between 6 and 7 p.m. September 5 at the police station. He first told her he had not committed the offense but soon asked her: "Well, if your money were returned to you, Frances, would you agree not to prosecute me?" When Mrs. Clary did not answer, defendant did not say anything more. September 6, about 11 a.m. defendant told the officers at the station how he committed the offense; and his counsel now contends that, since Sec. 4346, R.S. 1939, makes 20 hours the limit for lawful detention for investigation without the filing of proper charges, holding defendant for 40 hours without any charge being preferred against him constituted force and duress in itself and required an instruction thereon when requested by counsel.

A confession of guilt is presumed to be voluntary until the contrary is shown. State v. Menz, 341 Mo. 74, 92, 106 S.W. 2d 440, 449[11] citing cases. If, however, defendant interposes an objection on the ground it was involuntary the State has the burden at the preliminary hearing. State v. Williamson, 339 Mo. 1038, 1048, 99 S.W. 2d 76, 81[9].

Section 4070, R.S. 1939, requires the court to instruct, whether requested or not, upon all questions of law necessary for the information of the jury; but an instruction on the voluntariness of a confession is on a collateral issue and is not required as a part of the law of the case. State v. Ramsey (Banc), 355 Mo. 720, 197 S.W. 2d 949, 957[12]. Defendant cites a number of cases to the effect that his request to the court for an instruction on the voluntary nature of the confession was sufficient. State v. Reed, 154 Mo. 122, 129, 55 S.W. 278, 280; State v. Moore, 160 Mo. 443, 460, 61 S.W. 199, 205. An opinion developing several features of the issue is State v. Gibilterra, 342 Mo. 577, 585[2], 116 S.W. 2d 88, 94[5-10].

Instructions on issues not supported by any evidence tend to authorize the jury to rove in reaching their verdict. Without evidence they are without a guide in their deliberations on the factual feature of the issue. An instruction giving the jury a roving commission to disregard admissions of guilt could not prejudice defendant; but it is proper to keep the jury within the law and the evidence and, hence, the instructions within declarations applicable to the facts in evidence. State v. Kauffman, 329 Mo. 813, 824(b), 46 S.W. 2d 843, 847[5]; State v. Stanton (Mo.), 68 S.W. 2d 811, 813[11]; State v. Farmer (Mo.), 111 S.W. 2d 76, 79[4]; State v. Mundy (Mo.), 76 S.W. 2d 1088, 1091[6].

State v. Gibilterra, 342 Mo. 577, 585, 116 S.W. 2d 88, 94[5] states the rule: "If the issue is submitted to the jury and all the evidence shows the confession was voluntary, the court need not instruct thereon, even though requested to do so." State v. Ball (Mo.), 262 S.W. 1043, 1046[7], holds, absent evidence, the instruction should not be given. Ah Fook Chang v. United States, 91 F.2d 805, 809 [6, 7]; Raarup v. United States, 23 F.2d...