State v. Robertson

• Decision Date: 07 June 1943
• Docket Number: 38415
• Parties: State v. Robert Lee Robertson, alias Robert Harris Kelly, alias Robert Johnson, Appellant
• Court: Missouri Supreme Court

171 S.W.2d 718

351 Mo. 159

State v. Robert Lee Robertson, alias Robert Harris Kelly, alias Robert Johnson, Appellant

No. 38415

Supreme Court of Missouri

June 7, 1943

Appeal from Circuit Court of City of St. Louis; Hon. Joseph J Ward, Judge.

Reversed and remanded.

Roy McKittrick, Attorney General, and William C Blair, Assistant Attorney General, for respondent.

The court did not err in giving Instruction 6. State v Simenson, 172 S.W. 601, 263 Mo. 264; State v. Godos, 39 S.W.2d 784; State v. Dollarhide, 63 S.W.2d 998, 333 Mo. 1087; State v. Johnson, 63 S.W.2d 1000; State v. Busch, 119 S.W.2d 265; State v. Luna, 162 S.W.2d 859.

OPINION

Barrett, C.

The jury found and the evidence shows that in the early morning of October 3, 1941, Robert Lee Robertson, armed with a shotgun, and his accomplice, Kendall Morris, armed with a pistol held up the mistress and inmates of a house of prostitution in St. Louis and took $ 35.00 from Dorothy Burke, the mistress. For his participation in the "holdup" Robertson was found guilty of robbery in the first degree and sentenced to fifteen years' imprisonment.

Dorothy Burke did not report the robbery to the police but on November 21 when Robertson was arrested he admitted that he had held up some people at 3930a Olive Street but did not know their names. On November 23rd the police brought Dorothy Burke to the police station and she identified Robertson as one of the robbers and a photograph of Morris as the other one. The police officers did not take a written statement or confession from Robertson but instead had Dorothy relate, in his presence, how the robbery was committed. As she related the events of the robbery the police would ask him whether what she said was true and he would answer that it was. Or, as she told some fact of the occurrence the police would then have him relate the same facts. When Dorothy and the officers testified, especially the officers, they related Robertson's oral statements or admissions.

The defendant did not testify but his wife and his mother did. In so doing they gave evidence of an alibi.

The court instructed the jury, in the usual manner, on robbery and also gave the customary cautionary instructions. In addition the court gave a separate instruction on alibi and one covering the problem of whether the oral statements as testified to by the police were voluntary. The court also gave instruction No. 6 which is as follows:

"If you believe and find from the evidence that the defendant made any voluntary statement or statements in relation to the offense charged in the information after such offense is alleged to have been committed, you must consider such statements all together, and in the light of the circumstances under which you may believe they were made and determine whether such statement or statements were voluntary or involuntary. The defendant is entitled to what he said for himself, if true, and the State is entitled to the benefit of anything he may have said against himself in any statement or statements proved by the State. What the defendant said against himself, if anything, the law presumes to be true, unless negatived by some other evidence in the cause, because said against himself. What the defendant said for himself, the jury are not bound to believe, because it was said in a statement or statements proved by the State, but the jury may believe or disbelieve it as it is shown to be true or false by the evidence in this cause; it is for the jury to consider, under all the facts and circumstances in evidence, how much of the whole statement or statements of the defendant proved by the State, the jury, from the evidence in this case, deem worthy of belief."

In his motion for a new trial the defendant makes but two assignments of error. In one of these he vigorously and in detail assails the giving of this instruction as a comment on the evidence. He quotes from the instruction and says its practical effect is to force a defendant to testify whether he wants to or not. He says an oral confession is coerced, testified to and admitted in evidence and that no more importance should be attached to it than any other evidence and "yet the instruction . . . singles out 'what he has said against himself' . . . or if he does not (testify and deny it) the jury is informed in effect that they must believe 'what he says against himself as true.'"

Even though the propriety of giving such an instruction at all has often been questioned (because, regardless of whether the statements or admissions testified to are both favorable and unfavorable to the defendant, such an instruction is a comment on the evidence by the court, State v. Thomas, 250 Mo. 189, 157 S.W. 330 and State v. Johnson, State v. Duncan and State v. Busch, infra), an instruction in almost identical language was held to be proper in State v. Simenson, 263 Mo. 264, 172 S.W. 601 and State v. Hayes, 262 S.W. 1034. The opinion in the Simenson case collects the cases beginning with Green v. State in 13 Mo. 383 and continuing down to the time of that decision in 1914 in which the same or similar instructions were approved. The instruction was specifically approved and all the cases pertaining to it were collected in State v. Hamilton, 304 Mo. 19, 263 S.W. 127. Since then, 1924, the instruction has received specific approval in the following cases: State v. Lewis, 323 Mo. 1070, 20 S.W.2d 529; State v. Mabry, 324 Mo. 239, 22 S.W.2d 639; State v. Colson, 325 Mo. 510, 30 S.W.2d 59; State v. Godos (Mo.), 39 S.W.2d 784 and State v. Nibarger, 339 Mo. 937, 98 S.W.2d 625 decided in 1936, although the objection in the latter case was that there was no evidence upon which to base the instruction. The last case specifically approving the instruction was decided in 1931. In all these cases, except the Nibarger case, it was urged that the instruction was erroneous because it constituted a comment on the evidence by the court, or because it singled out and directed specific attention to the defendant's evidence.

In State v. Johnson, 333 Mo. 1008, 63 S.W.2d 1000 and State v. Dollarhide, 333 Mo. 1087, 63 S.W.2d 998 there were instructions which omitted the phrases we have italicized in instruction No. 6. Up to that time instructions in that form, even, had been approved. Judge Westhues collected all those cases and pointed out that an instruction omitting the italicized phrase was unfair. In that connection he said, 333 Mo., l. c. 1012: "The instruction in this case told the jury that what defendant said against himself was presumed to be true. It did not tell the jury, as it should have, that defendant was entitled to the benefit of what he said in his own behalf, if true. The instruction permitted the jury to consider only a part of defendant's statement. The instruction should have required the jury to consider all of defendant's statements together and to consider them in view of the circumstances under which they were made." In...