State v. Powell

• Decision Date: 30 November 1915
• Docket Number: No. 18993.,18993.
• Citation: 180 S.W. 851,266 Mo. 100
• Parties: STATE v. POWELL.
• Court: Missouri Supreme Court

180 S.W. 851

266 Mo. 100

STATE v. POWELL.

No. 18993.

Supreme Court of Missouri, Division No. 2.

November 30, 1915.

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

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

Defendant, convicted in the criminal court of Jackson county of murder in the first degree, and sentenced to imprisonment in the penitentiary for life, after the usual motions, appeals. This is the second appeal in this case. State v. Powell, 258 Mo. 239, 167 S. W. 559. The facts of the homicide out of which this case arises have already been before us three times. State v. Bonner, 259 Mo. 345, 168 S. W. 591; State v. Brown, 247 Mo. 715, 153 S. W. 1027; State v. Powell, supra.

The facts proven upon the trial below, from which the instant appeal is taken, differ in no material respect from those shown by the record in the other appeal herein, formerly considered by us. The evidence tended to prove that defendant, with one Arthur Brown and George Bonner, whose respective connections with this homicide are to be found detailed in State v. Brown, supra, and State v. Bonner, supra, together with defendant's two brothers Halsey Powell and Cottrell Powell, in attempting to rob the freight office of the Missouri Pacific Railroad at Kansas City on December 1, 1911, shot and killed Albert Underwood, a cashier in said office; but as all the attending facts and circumstances are fully set forth in the two teases last cited, and as the alleged confession of the defendant, as well as the facts and circumstances under which it was made, and upon which his former appeal and the instant one both turn, are to be found set forth in State v. Powell, supra, we need not cumber the books with these facts again. So we content ourselves with referring the curious reader to the three cases above cited for such facts as we may not set out in detail in our discussion of the case.

Horace S. Kimbrell and Griffin & Orr, all of Kansas City, for appellant. John T. Barker, Atty. Gen., and W. T. Rutherford, Asst. Atty. Gen., for the State.

FARIS, P. J. (after stating the facts as above).

When this case was here before, it was reversed and remanded for a new trial on account of two things, which we then ruled constituted reversible error: (a) The refusal to admit testimony offered by defendant in contradiction of the alleged confession, showing the whereabouts of Halsey Powell at the instant of the homicide; and (b) the action of the court in admitting the paper signed by defendant, purporting to be his confession. No other points were discussed, except such as were ancillary to the above two. Our ruling upon the last point, touching the admissibility of the defendant's confession, was thus summed up:

"It is not necessary to discuss the matter at greater length. We are convinced that the written confession was not voluntarily made, and should therefore have been excluded by the court. State v. Thomas, 250 Mo. 189, loc. cit. 211 , and authorities there cited." State v. Powell, 258 Mo. loc. cit. 251, 167 S. W. 562.

Notwithstanding this holding, the case is back here, with the single point mooted that the learned court nisi erred in the instant case in admitting the identical confession which we had already ruled was inadmissible. We are entirely satisfied with the correctness of our ruling upon this point when the case was here before. It comes to us now, absent no vices that it contained then.

The testimony going to show its voluntariness vel non (herein as formerly still strenuously assailed) is substantially the same that it was before, except that the witness Boultt (and possibly the witness Phillips, though as to the latter the record is not clear), now relates an antecedent oral confession which it seems was not mentioned by them in their former testimony. (We may be in error as to this fact; we gather it from the four corners of the record only, and have not compared the evidence of these two witnesses with their former testimony on this matter on the other trial.) But, even should we be in error as to this, it cannot change the law of the case. For when, upon a full investigation of the question upon the former appeal, we squarely ruled that the confession of defendant to Capt. Stone and the police officers was obtained in a manner which as a matter of law rendered it not voluntary, and therefore inadmissible, this ruling became the law of the case upon another trial, and likewise upon a second appeal, unless upon a second trial nisi a different state of facts was shown. May v. Crawford, 150 Mo. 504, 51 S. W. 693; Bealy v. Smith, 158 Mo....