State v. Humphrey

• Decision Date: 10 May 1948
• Docket Number: 40741
• Citation: 210 S.W.2d 1002,357 Mo. 824
• Parties: State v. Fred Humphrey, Appellant
• Court: Missouri Supreme Court

210 S.W.2d 1002

357 Mo. 824

State v. Fred Humphrey, Appellant

No. 40741

Supreme Court of Missouri

May 10, 1948

Appeal from Jackson Circuit Court; Hon. John R. James Judge.

Affirmed (with new sentences).

Jesse I. Moritz and Don Whitcraft for appellant.

(1) Under the pleadings and under the testimony in the preliminary hearing on the confession, the confession should have been excluded from evidence for the reason that the issues of whether defendant read and understood the statement, and whether the statement was a free and voluntary one without threats or promises were issues res adjudicata. Norwood v. Norwood, 353 Mo. 548, 183 S.W.2d 118; Boilott v. Income Guaranty Co., 124 S.W.2d 608; Autenreith v. Bartley, 238 Mo.App. 55, 176 S.W.2d 546; State ex rel. Buchanan County v. Patton, 271 Mo. 554, 197 S.W. 353; In re McMenamy's Guardianship, 307 Mo. 98, 270 S.W. 662. (2) The trial court's ruling in the preliminary hearing denied defendant a fair and impartial trial as guaranteed him by law for the reason that the burden of proof to sustain said confession as a free and voluntary one without threats or promises was on the state in said hearing and since the state offered no testimony thereon, and whereas the testimony on behalf of defendant was convincing and undisputed, the court's ruling should have been for defendant and said alleged confession should have been excluded. State v Gibilterra, 116 S.W.2d 88; State v. Williamson, 99 S.W.2d 76; State v. Thomas, 250 Mo. 189, 157 S.W. 330.

J E. Taylor, Attorney General, and Arthur M. O'Keefe, Assistant Attorney General, for respondent.

(1) The verdict, judgment and sentence are improper. State v. Schmitz, 46 S.W.2d 539; State v. King, 194 S.W. 670; Secs. 4155, 4854, R.S. 1939; State v. Ward, 202 S.W.2d 46; State v. Murphy, 345 Mo. 358, 133 S.W.2d 398; State v. Breeden, 180 S.W.2d 684; State v. Huff, 325 Mo. 1161, 181 S.W.2d 513; State v. Sumpter, 325 Mo. 620, 73 S.W.2d 760; State v. English, 308 Mo. 695, 274 S.W. 470; State v. Bevins, 328 Mo. 1046, 43 S.W.2d 432. (2) Voluntariness of confession was not res judicata. 15 Am. Jur., p. 45; Dusenberg v. Randolph, 325 Mo. 881, 30 S.W.2d 94, 147 A.L.R. 991; Kimpton v. Spellman, 351 Mo. 674, 173 S.W.2d 886; Laughlin v. Boatmen's Natl. Bank of St. Louis, 354 Mo. 467, 189 S.W.2d 974; People v. Rodgers, 171 N.Y.S. 451; State v. Barton, 5 Wash. (2d) 234, 105 P.2d 63. (3) Error raised for the first time in brief cannot be considered. State v. Breeden, 180 S.W.2d 684; State v. Robinson, 177 S.W.2d 499.

OPINION

Hyde, J.

Defendant was convicted of burglary (second degree) and larceny and sentenced to ten years imprisonment. He has appealed.

The only question raised in defendant's brief is the admissibility of a confession signed by defendant, which was written by Kansas City Police officers. This confession recited several separate burglaries and defendant was charged by separate informations on two of them. He was acquitted in the first case tried. Since the confession reciting both of these burglaries was introduced as evidence in that case, it is contended that the issues of whether defendant read and understood it and whether it was freely and voluntarily made without threats or promises were res judicata.

Defendant filed a motion to suppress evidence on that ground, which was overruled. It was alleged in this motion "that the validity of said instrument purporting to contain a confession of guilt in that cause was attacked by defendant (in the other case) on the ground that defendant did not possess sufficient education to read and understand the things and confessions therein purported to be contained; that the only crime under discussion with the police officers who obtained his signature on said instrument containing said purported confession of guilt was in respect to a police court case then pending in the Municipal Court of Kansas City, Missouri, and that a promise was made to defendant by the police officers who obtained his signature on said instrument that they would see to it that his sentence did not exceed a term of sixty days in the Municipal Farm of Kansas City, Missouri, and that his signature on said instrument was obtained by Officer Rogers as a result of said promise; that evidence was introduced by defendant in respect to the aforestated issues, and that by reason of the verdict and judgment of 'not guilty' rendered by the jury in said cause, said instrument containing said purported confessions was adjudged to be illegal and invalid."

Defendant did give such testimony, as to his misunderstanding of the instrument he signed, at a preliminary hearing on his motion and before the jury in this case. He said that the only matter discussed when he signed the confession was a petit larceny case in police court in which he had been released on a cash bond; that the officers told him to plead guilty and he would get sixty days and get his bond money back; and that he signed the paper they presented to him for this purpose without knowing what was stated in it. He said that he could not read or write but could only sign his name. He said that he did not tell them that he had broken into the Kansas City Printing Ink Company or the Gunite Construction Company, the two charges upon which he was tried, and which were both admitted in the confession.

However, the police officers testified during the trial of this case that defendant pointed out to them the Gunite Construction Company as a place he had broken into and told them what he had taken there. They also said defendant gave them information concerning his disposition of articles taken from this place and went with them to find a man to whom he had sold a shotgun, taken by him from the construction company office, and from whom they recovered it. This gun was identified by the president of the construction company and was produced at the trial. Thus there was ample evidence to support his conviction without the written confession. According to the officers' testimony, defendant voluntarily related to them all of the statements in the confession, after riding with them through the district and pointing out the places involved. One of the officers said he wrote defendant's statement longhand and went back over it with him as he wrote it down; that this was copied on the typewriter by one of the police clerks and handed to defendant to see before he signed it; that no promises of any kind were made to him; and that he was not mistreated in any manner.

"The doctrine of res judicata by which a fact or manner distinctly put in issue and directly determined by a court of competent jurisdiction cannot afterwards be disputed between the same parties, is applicable to judgments in criminal prosecutions. . . . The doctrine of res judicata, as applied to criminal cases, is subject to the same limitations as apply in civil cases. And clearly, there must be an adjudication of the fact or issue in question. A judgment in a criminal case operates as res judicata only with respect to the issues of law and fact actually decided and those necessarily involved in the result." [15 Am. Jur. 45, Sec. 367 (Cumulative Supplement, p. 7); see Annotation 147 A.L.R. 992; 50 C.J.S. 267, Sec. 754; 2 Van Fleet on Former Adjudication 1242-1249, Sec. 628; Sealfon v. United States, 68 S.Ct. 237, 92 L.Ed. 215; Harris v. State (Ga.), 17 S.E.2d 573, 147 A.L.R. 980, 991; see also Dusenberg v. Randolph, 325 Mo. 881, 30 S.W.2d 94; Norwood v. Norwood, 353 Mo. 548, 183 S.W.2d 118; Kimpton v. Spellman, 351 Mo. 674, 173 S.W.2d 886; Laughlin v. Boatmen's National Bank, 354 Mo. 467, 189 S.W.2d 974.] It was held in State v. Barton (Wash.), 105 P.2d 63, that the issue of alibi, raised as a defense in a previous prosecution, was not res judicata. The court said: "It is not possible to determine whether the jurors returned a verdict of acquittal because they credited the testimony in support of appellant's alibi, or for the reason that they found the state's evidence insufficient as to one or more essential elements of the offense charged. They could have utterly disregarded all of the testimony adduced by the appellant in his defense and yet have returned a verdict of not guilty. The verdict and the judgment based thereon were not, therefore, res judicata as to appellant's alibi, nor as to any other particular fact. They were res judicata only as to the ultimate fact that appellant was not guilty of the crime of which he was accused." Likewise, "acquittal of one charged with crime is no bar to a prosecution for perjury for testimony given by him at the trial." [15 Am. Jur. 45, Sec. 368.]

This is not a case of defendant being tried for another offense growing out of the same transaction or occurrence, as was true in the Sealfon and Harris cases, supra. As said in the Sealfon case, the question of res judicata "depends upon the facts adduced at each trial and the instructions under which the jury arrived at its verdict at the first trial." We do not think that it was shown in this case that there was an adjudication of the issue of the voluntariness of defendant's confession at the trial of the other burglary charge or that it was necessarily involved in the result. The instructions in the other case were not offered in evidence herein, but it was admitted at the oral argument that there was no instruction submitting such issue to the jury in that case (and there was none in this case) and there was no showing as to what other defenses were made in that case or whether or not the state had other evidence corroborating the facts stated in the confession as to the offense in that case as it did in this case. [See 20 Am. Jur. 1185, Sec's. 1233-1234; 22 C.J.S. 1471, Sec. 839.] Furthermore, the jury in the other...