State v. McGuire

• Citation: 39 S.W.2d 523,327 Mo. 1176
• Decision Date: 05 June 1931
• Docket Number: 31068
• Parties: The State v. Robert McGuire, Appellant
• Court: United States State Supreme Court of Missouri

39 S.W.2d 523

327 Mo. 1176

The State v. Robert McGuire, Appellant

No. 31068

Supreme Court of Missouri

June 5, 1931

Appeal from Texas Circuit Court; Hon. J. H. Bowron, Judge.

Affirmed.

Barton & Moberly for appellant.

(1) The corpus delicti is not established until each essential element of the offense charged is proved by substantial evidence. State v. Young, 237 Mo. 170; State v. Scott, 39 Mo. 424; Westrand v People, 213 Ill. 72, 40 A. L. R. 464; State v Armstrong, 4 Minn. 335, 40 A. L. R. 472; 16 C. J. 771 773. (2) The naked confession of the defendant is not sufficient to establish the commission of a crime in toto or any essential element thereof. State v. Mullinix, 301 Mo. 385; State v. Young, supra; State v. Scott, supra; 40 A. L. R. 464-72; 7 R. C. L. 777; 16 C. J. 771, 772; Underhill on Criminal Evidence (3 Ed.) 33. (3) Where there is evidence of the commission of an offense of a lesser degree than the one charged, it is the duty of the court to instruct on such lesser offense. R. S. 1929, sec. 3681; 36 C. J. 933; 16 C. J. 1023; State v. Donovan, 121 Mo. 496; State v. Thompson, 137 Mo. 620; State v. Norman, 101 Mo. 520; State v. Burrell, 298 Mo. 672; State v. Johnson, 6 S.W.2d 898. (4) A confession made by accused under promise or encouragement of any hope or favor made or held out to him by officers or other persons in authority or by private person in their presence is not voluntary and is therefore inadmissible. 16 C. J. 717; 1 R. C. L. 553; Underhill on Criminal Evidence (3 Ed.) 307; Conley v. State, 12 Mo. 717; State v. Hunter, 181 Mo. 316; State v. Murphy, 146 Mo.App. 707; State v. Hart, 292 Mo. 74, 90; State v. Keller, 263 Mo. 539; State v. Thomas, 250 Mo. 189; State v. Blackburn, 273 Mo. 469; State v. Young, 119 Mo. 495; State v. Caperton, 276 Mo. 314; State v. Naughton, 221 Mo. 398. And confessions made to persons in authority immediately after such hope or encouragement is given are presumed to have resulted from such inducements. 16 C. J. 727. (5) While the competency of a confession or an admission is a preliminary question of law to be determined by the court, yet the defendant is entitled to have all the evidence bearing upon the voluntary character of such confession submitted to the jury to advise them concerning the weight and value such confessions merit. 1 R. C. L. 577; State v. Yeoger, 12 S.W.2d 30; State v. Ellis, 294 Mo. 269; State v. Jones, 171 Mo. 407. (6) Instruction that what defendant said against himself the law presumes to be true is such a comment on the evidence as to constitute reversible error. Especially is this true when (a) The evidence creates a grave doubt that the statements referred to were voluntarily made. (b) The instruction does not require a finding that the statement was voluntarily made, and no other instruction is given touching on that issue. (c) The giving of such instruction is equivalent to a directed verdict of guilty. Sec. 3694, R. S. 1929; State v. Thomas, 250 Mo. 215; State v. Bell, 70 Mo. 633; State v. Caperton, 276 Mo. 314; State v. Nibarger, 255 Mo. 289; State v. Creely, 254 Mo. 382; State v. Walser, 318 Mo. 833; State v. Sanford, 317 Mo. 865; State v. Miller, 307 Mo. 365; State v. Johnson, 316 Mo. 86; State v. Lowry, 12 S.W.2d 469; State v. Hersh, 296 S.W. 433; State v. Swarens, 294 Mo. 139. (7) Where technical terms are used in an instruction they should be defined. If defendants offer an instruction correctly defining such term, it is the duty of the court to give it. If the instruction offered by the defendant is not correct and is refused by the court it is the duty of the court on request to prepare and give an instruction correctly covering the matter involved. 16 C. J. 966; State v. Skaggs, 159 Mo. 581; State v. McLain, 159 Mo. 340; State v. Reed, 154 Mo. 123; State v. Strong, 153 Mo. 548. (8) Where there is only circumstantial evidence of the commission of the crime or any integral element thereof, it is error for the court to refuse an instruction on circumstantial evidence. 16 C. J. 1011. Crowell v. State, 6 S.W. 319, 24 Tex.App. 404. (9) What witnesses may have said or done in the way of identifying persons or things out of the presence of defendant is hearsay, and as such is not admissible in evidence. State v. Baldwin, 317 Mo. 759. (10) It is improper to cross-examine the wife of defendant concerning matters not brought out on her examination in chief. Sec. 3692, R. S. 1929.

Stratton Shartel, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondent.

(1) It has long been the rule in this jurisdiction that all of the elements of the corpus delicti, as well as the criminal agency of the accused, may be proved by circumstantial or presumptive evidence, when direct proof is not obtainable. State v. Poor, 286 Mo. 644; State v. Concelia, 250 Mo. 411; State v Vinton, 220 Mo. 90; State v. Barrington, 198 Mo. 113; State v. Henderson, 186 Mo. 473. (a) The corpus delicti may be proved by appellant's extra-judicial confession together with corroborative circumstances. State v. Johnson, 236 S.W. 366. (b) Confession of crime with proof aliunde that a crime has been committed will sustain a conviction. State v. Trosper, 293 S.W. 487; State v. Mullinix, 301 Mo. 391; State v. Coats, 174 Mo. 417; State v. Knowles, 185 Mo. 177; State v. Wooley, 215 Mo. 671; State v. Flowers, 311 Mo. 515. (c) Full proof of the body of the crime, independently of the confession, is not required, but, on the contrary, what may seem to be slight corroborating facts have been held sufficient. State v. Trosper, 293 S.W. 487; State v. Mullinix, 301 Mo. 391; State v. Skibiski, 245 Mo. 463; State v. Johnson, 236 S.W. 366; State v. Keltner, 278 S.W. 826; State v. Sandoe, 316 Mo. 63; State v. Cantrell, 6 S.W.2d 841. (d) In this case proof of the corpus delicti is not based on the uncorroborated confession of the appellant. State v. Flowers, 311 Mo. 510. (e) The corpus delicti may be established by circumstantial evidence. State v. Emerson, 318 Mo. 642; State v. Sandoe, 316 Mo. 64; State v. Wheaton, 221 S.W. 28; State v. Schyhart, 199 S.W. 211; State v. Vinton, 220 Mo. 100. (2) The court did not commit error in admitting in evidence the confession made by appellant after the arrest. (a) Proof of the corpus delicti was sufficient to make appellant's confession admissible. State v. Cantrell, 6 S.W.2d 841. (b) The fact that the accused is under arrest at the time he makes the confession is not sufficient to exclude his statement as being other than entirely voluntary. In order to exclude the confession on the ground that it is not voluntary it must affirmatively appear that some inducement to confess was held out to the accused by or in the presence of someone having authority. The confession is presumed to be voluntary until the contrary appears. State v. Hart, 292 Mo. 89; State v. Myers, 312 Mo. 96; State v. Saale, 308 Mo. 583; State v. Young, 314 Mo. 629; State v. Adams, 316 Mo. 166. And it does not matter that the confession was elicited through questions of the officer or person in authority. The test is whether the statement was entirely voluntary. State v. Hart, supra; State v. Myers, supra. (c) Where there is no evidence that defendant was threatened or was offered immunity his statements obtained by the questioning of officers while he was under arrest are not inadmissible nor incompetent. State v. Green, 229 Mo. 651; State v. Meyers, 293 Mo. 113; State v. Seward, 247 S.W. 153. (d) It is the settled law of this State that a mere adjuration to speak the truth does not vitiate a confession, no threats or promises being employed. State v. Armstrong, 167 Mo. 269; State v. Johnson, 316 Mo. 93. (e) The fact that a voluntary confession was made without accused being cautioned or warned that it might be used against him does not affect its admissibility. State v. Johnson, 316 Mo. 92. (f) A statement to the accused by the persons having him in charge: "Now, Bob, you tell the truth and it will be that much easier on you," will not exclude the confession. State v. Anderson, 96 Mo. 248; State v. Ball, 262 S.W. 1045. Appellant's reply, "I am going to tell the truth and nothing but the truth," shows that the statements were made by appellant of his own volition. Therefore, they were properly received. State v. Johnson, 316 Mo. 93. And, from all the evidence in this case, touching the subject-matter of appellant's confession, it cannot be perceived that the statement made to appellant, "Now, Bob, you tell the truth and it will be that much easier on you," had any influence on him. Hawkins v. State, 7 Mo. 190; State v. Patterson, 73 Mo. 707; State v. Young, 314 Mo. 629. (g) Aside from the confession, there are facts and circumstances pointing to the guilt of appellant which would require the court to submit the case to the jury. State v. Anderson, 96 Mo. 250. (h) This assignment, may be disregarded, as it is not before the court for review. Objection on behalf of the defendant came too late to warrant consideration. And there was no motion to strike out. Witness, Otto Scott, testified to the confession without objection until after the testimony was given. Witness, Earl Day, the next witness offered as to the confession, was interrupted while testifying with this objection: "We object to the introduction of any further statements as to what occurred in that conversation for the reason that the evidence shows that it was given in obedience to a question propounded by one in authority. Witness Ray Huss, testified to the details concerning the confession, without objection. The objection stated no valid reason why the evidence was inadmissible. State v. Todd, 225 S.W. 910; State v. Jackson, 194 S.W. 1078; State v. Smith, 190 S.W. 288; State v. Townsend, 289 S.W. 571; State v....