State v. Montgomery
| Citation | 424 S.W.2d 744 |
| Decision Date | 14 March 1968 |
| Docket Number | No. 3,No. 49396,49396,3 |
| Parties | STATE of Missouri, Respondent, v. Samuel MONTGOMERY, Appellant |
| Court | United States State Supreme Court of Missouri |
Norman H. Anderson, Atty. Gen., Jefferson City, Ben Ely, Jr., Sp. Ass't. Atty. Gen., St. Louis, for respondent.
Richard S. Snyder, St. Louis, for appellant.
Defendant was found guilty by a jury of assault with intent to kill on purpose and with malice aforethought. Section 559.180 RSMo 1959, V.A.M.S. The trial court heard evidence outside the presence of the jury and found that the defendant had previously been convicted and sentenced for the felony of murder, second degree, as alleged in the indictment. The court fixed the punishment at 35 years' imprisonment. Sentence and judgment followed. An appeal was filed but no brief was filed on behalf of defendant. This court affirmed the conviction, State v. Montgomery, Mo., 370 S.W.2d 316. Pursuant to the decision in Bosler v. Swenson, 363 F.2d 154 (8th Cir.), this court set aside its judgment affirming the conviction, reinstated the cause on the docket, and ordered the trial court to appoint counsel to represent defendant on this appeal in accordance with S.Ct. Rule 29.01(c), V.A.M.R. Counsel was appointed for defendant and the appeal is again submitted.
This case was tried in January 1961. The State presented evidence that on October 31, 1960, at about 2 p.m., one Roy Witherspoon was shot three times, once in the rights shoulder and twice in the head. The shooting occurred in front of the Meyer Brothers Grocery Store at 1903 Franklin Street in the City of St. Louis. State's witness Witherspoon and other persons who were at the scene testified in substance that defendant approached Witherspoon and after a conversation about a woman defendant drove away in his truck. Ten or twenty minutes later defendant returned in his truck, accosted Witherspoon, pulled out a revolver and shot him in the right chest or shoulder. After Witherspoon fell to the sidewalk defendant stood over him and shot at him three times; two of the bullets striking him in the head. Defendant after the shooting left in his truck. Police Officer William Miller testified that he stopped defendant in his truck a short time later and asked defendant if he had shot a man a few minutes before and the defendant answered, 'Yes,' and he said he 'would have shot him some more but he didn't have any more bullets for his gun.' The defendant was arrested and taken to the Ninth District Police Station. Police Officer Donald Roach testified that later the same afternoon he took defendant from the Ninth District Station to the Central District and after arriving at the Central District, in talking to defendant, defendant stated that he had shot Witherspoon.
There was no objection made at the time the two police officers testified as to the incriminating statements by the defendant. Defendant's motion for new trial did not raise the question as to the admission of the oral statements.
Defendant now contends on this appeal that the oral statements of defendant were involuntary and therefore inadmissible. He states that the State failed to show that he was advised of his constitutional rights to counsel, to remain silent, and that anything he stated might be used against him, before giving the statements. Defendant argues that the State had the burden of proving the voluntariness of the confessions and in support thereof cites State v. Bradford, Mo., 262 S.W.2d 584; State v. Statler, Mo., 331 S.W.2d 526; State v. Williams, Mo., 369 S.W.2d 408; State v. Joyner, Mo., 382 S.W.2d 683.
It is true that the State has the burden to show a confession was voluntary, provided however the defendant must first raise the issue of voluntariness by objecting to the confession or requesting a preliminary investigation as to the confession being voluntary. A confession is presumed to be voluntary until the contrary is shown. State v. Higdon, 356 Mo. 1058, 204 S.W.2d 754, 755; State v. Martin, Mo., 347 S.W.2d 680, 682; State v. Menz, 341 Mo. 74, 106 S.W.2d 440. The record here does not show any evidence that the confessions or incriminating statements of defendant were involuntary, nor was there any request for a preliminary investigation as to the voluntariness of the confessions. In addition there was no offer of proof impeaching the voluntary character of the confessions. State v. Martin, supra.
This case was tried in January 1961. It was not until 1966, Miranda v. State of Arizona, 86 S.Ct. 1602, 384 U.S. 436, 16 L.Ed.2d 694, that the absence of advice as to constitutional rights in and of itself was held to be sufficient basis for excluding a confession. Prior to June 13, 1966, the proper test used in determining the admissibility of statements is whether the totality of circumstances deprived the defendant of a free choice to admit, to deny,...
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State v. Donnell
...not represented by counsel at arraignment. We will meet and determine the arraignment question under such assumption (Cf. State v. Montgomery, Mo., 424 S.W.2d 744, 746), and City of St. Louis v. Vetter, Mo.App., 293 S.W.2d We do not confront or decide the question of whether Hamilton and Wh......
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State v. Hollis, KCD
...must be deemed voluntary within the meaning of that word as applied to the protection of his constitutional rights. State v. Montgomery, 424 S.W.2d 744, 745(2) (Mo.1968); State v. Hester, 425 S.W.2d 110, 114(4) The only basis for the position taken by the defendant that he was not properly ......
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...warrant issued, we are required to rely on the testimony contained in the transcript relating to the motion to quash. State v. Montgomery, 424 S.W.2d 744, 746 (Mo.1968); Kansas City v. Mathis, 409 S.W.2d 280, 288 (Mo.App.1966). The evidence we have is that furnished by Boatright, who admitt......
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Aguilar v. Swenson
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