State v. Powell

• Decision Date: 26 May 1914
• Docket Number: No. 18055.,18055.
• Citation: 167 S.W. 559,258 Mo. 239
• Parties: STATE v. POWELL.
• Court: Missouri Supreme Court

167 S.W. 559

258 Mo. 239

STATE v. POWELL.

No. 18055.

Supreme Court of Missouri, Division No. 2.

May 26, 1914.

1. CRIMINAL LAW (§ 519)—CONFESSIONS— VOLUNTARY OR INVOLUNTARY.

Whether a confession, made while under arrest, is involuntary depends on the character of accused, age, sex, disposition, and past experience.

2. CRIMINAL LAW (§ 531)—CONFESSIONS— EVIDENCE OF INVOLUNTARINESS.

Evidence held to show that a confession by accused, made while under arrest, was not voluntary and must be excluded.

3. CRIMINAL LAW (§ 538)—CONFESSIONS— RIGHT OF ACCUSED TO CONTRADICT OR IMPEACH.

Accused may introduce evidence to impeach or discredit his confession, admitted in evidence.

4. HOMICIDE (§ 166)—MOTIVE—EVIDENCE— ADMISSIBILITY.

Where the state relied on a confession by accused, which showed that accused's brother was present and actively participated in a robbery during which decedent was killed, and that the brother had at the time requested accused to come to a place and receive a part of the proceeds of the robbery, evidence that the brother was not present and could not have taken part in the crime was admissible to rebut the evidence of motive of accused.

5. CRIMINAL LAW (§ 531)—CONFESSIONS— INVOLUNTARY AND FALSE.

Where the state, relying on the confession of accused, showed that accused did not want to incriminate his brother, but did incriminate him, though he was not guilty, proof that the brother was not guilty was admissible to show that the confession was not voluntary and was false.

Appeal from Criminal Court, Jackson County; Ralph Latshaw, Judge.

Featherstone Powell was convicted of murder in the first degree, and he appeals. Reversed and remanded for new trial.

Defendant was convicted of murder in the first degree, and appeals from a judgment fixing his punishment at imprisonment for life.

The evidence on the part of the state tends to prove a conspiracy between defendant and three or more other negroes to rob the Missouri Pacific freight office at Kansas City, Mo., on December 1, 1911. In robbing that office one Albert Underwood, a cashier therein, was murdered. The evidence further tends to prove that Underwood was killed by one Arthur Brown, and that, while defendant was not present, he was in or near the building where the tragedy occurred, and that he aided and abetted Arthur Brown in the commission of said crime.

At the trial a signed confession of defendant Powell was admitted over his objections, to which ruling exceptions were duly saved. The admission of this alleged confession, and the refusal of the trial court to permit the defendant to impeach the same by proving that parts of it were untrue, constitute the alleged errors upon which the defendant relies for reversal.

The written confession of defendant introduced in evidence reads as follows:

"Statement taken in the office of Captain E. B. Stone, commanding. State of Missouri, County of Jackson—ss.: Featherstone Powell, of lawful age, being first duly sworn, upon his oath deposeth and says: I am 24 years old. I was born in Jackson, Tennessee. I live at 726 New Jersey avenue, Kansas City, Kansas. I work at the Missouri Pacific Railway Company in their freight office, as janitor. Thursday, November 30th, as I was passing state line on my way home I met Arthur Brown and Duke at the state line. They wanted to know where I was going and I said I was on my way home. They wanted to know what chance to hold up cashier's department at Missouri Pacific freight house. I told them that they had better know what they were doing, cause it would make it hard on me, as I am janitor in the building and have been there for the last seven years. After this conversation I went home. The next time I saw Arthur Brown and this man Duke was on Friday afternoon. They were up in the Missouri Pacific local office December 1st, about 5:40 p. m. I was standing in the front of the toilet room door when Arthur Brown came to me and said we are going to pull that job off now that we were talking about the other day. Arthur Brown and Duke had a revolver apiece. Shortly after, Halsey Powell, my brother, came back to the toilet room and when he got to us Arthur Brown and this man Duke says they were going to pull off that job to-night and Halsey said that `if you go by Mother's to-night, I will give you some of the money.' These three men went downstairs immediately after that. Before leaving me to go downstairs they told me to get down in front and as I knew the special agents of the Missouri Pacific I was to watch for them and if I saw any of them coming I was immediately to give the signal. I then took a bucket and broom from the office and came downstairs and went out on the sidewalk at the southeast corner of the building. I taken up my position there to watch for Missouri Pacific special agents just outside of the front door of the office. My brother, Halsey Powell, and my brother, Cottrel Powell, were both standing at this door. Immediately inside of the office door were the following men known to me as Ossie Brown, Arthur Brown, and the man they called Duke. I was directly outside with the bucket and broom and when I saw everything was clear I told them all right, and then they entered the cashier's department and shortly afterwards I heard a pistol shot, and immediately after the shot was fired Ossie Brown and Halsey and Cottrel came running out of the front door and I went in the hall. I don't know how Arthur Brown or this man Duke left the office. I then went into the freight house and Albert Underwood was laying inside the freight house on the floor and some of the boys picked him up and lays him in the back room in the cashier's office on the table. Last night when the officers asked me if I knew who the parties were that pulled off that job I would not tell them. I did not want them to know that my brothers, Halsey or Cottrel or myself had anything to do with it. I make this statement of my own free will, without any threats or promises being made and knowing that it will be used against me, if I am prosecuted.

                                       "Featherstone Powell
                

"Witnesses: S. W. Zickafoose. Edward B. Stone. W. H. Boullt. Jas. J. Raftery. C. M. Phillips. J. D. Greenlee.

"I make this statement in the presence of Capt. E. B. Stone, Chief of Detectives S. W. Zickafoose, Detectives J. J. Raftery, J. D. Greenlee, W. H. Boullt, Special Agent Missouri Pacific, and C. M. Phillips, Special Officer Missouri

                Pacific.          Featherstone Powell
                

"Subscribed and sworn to before me, a notary public, within and for the above state and county this 4 day of December, 1911.

                  "Guy C. Cooley, Notary Public.   [Seal.]
                

"My commission expires 2/13/12.

"Witnesses: S. W. Zickafoose. Edward B. Stone. W. H. Boullt. Jas. J. Raftery. C. M. Phillips. J. D. Greenlee."

The evidence of three witnesses who were in the freight office when the robbery and murder occurred tends to corroborate the defendant's written confession, except that defendant's confession recites that there were five men in the freight office participating in the robbery, while the witnesses for the state saw only three. No one saw defendant at the time of the robbery and murder. He testifies that he was on the second floor of the building at that time, while his confession recites that he was out in front of the building. As the cause must be reversed because of the admission of improper evidence and the exclusion of proper evidence, a more detailed statement of the facts is unnecessary.

Defendant is a colored man 24 years old, and for some years prior to the commission of the crime of which he was convicted was a janitor in the freight office in the Missouri Pacific Railway Company, located on the first floor of a building in Kansas City, Mo. He was arrested and locked up the day following the robbery, and on the second day was taken to the office of Edward B. Stone, captain of police, and questioned by Capt. Stone and eight other police officers and detectives regarding his knowledge of and complicity in the robbery and murder.

With one exception the witnesses agree that the interrogation of defendant began about 2 p. m. Sunday afternoon and continued until 11 p. m. that night with very slight intermissions. Defendant was interrogated alternately by the nine officers and detectives, and at 11 p. m. consented to confess. His confession, written on a typewriter, was completed and signed between 12 and 1 a. m. that night. When offered in evidence, this confession was objected to on the ground that it was not voluntarily made, but was the result of intimidation; that it was obtained by placing defendant in such a protracted mental strain as to overcome his will, and by promises made by Capt. Stone that it would help him to confess. Defendant, testifying in regard to the confession, states: That he was not only accused and questioned for a long time, but was struck on the head and kicked on his private parts by the officers before he consented to make a statement. That the officers told him it would be lighter on him if he confessed. He further testified that two confessions were written at the instance of the officers, and when he signed the first confession he wrote the words "not guilty" following his name; that officer Stone tore up that confession and threw it into a brass cuspidor, and then they obtained the final confession, which was introduced in evidence.

The testimony on the part of the officers who secured the confession is that the defendant was not subjected to any personal abuse or mistreatment. The salient parts of their evidence is as follows:

Special Agent Boullt testified that defendant was very nervous and excited and wanted to shield himself and his brothers; that it did not require all the time the officers were present to persuade him to make the confession; that they remained with him waiting for another party to be brought in who was accused of the same crime.

S. W....