"By an information filed in the Circuit Court of Washington County, Missouri, on February 21st, 1930, Fred Salisbury, the defendant herein was charged with the crime of robbery in the first degree by means of a dangerous and deadly weapon. Change of venue was granted to the Circuit Court of Iron County. Thereafter, on June 6th, 1930, defendant waived formal arraignment and entered a plea of not guilty. On the same day he was put to his trial before judge and lawful jury, which jury returned a verdict of guilty of robbery in the first degree and assessed the punishment at imprisonment in the penitentiary for a term of five years. Timely motion for new trial was filed, and by the court overruled. Defendant was granted allocution, judgment was rendered and sentence pronounced in accordance with the terms of the verdict. Appeal was granted to this court.
"The State's evidence is substantially as follows:
"One Jesse Bust on Sunday, January 26th, 1930, lived on the Bust Estate farm near Tiff, Missouri, in Washington County. The house, of which he used the kitchen and one other room, is about in the center of the farm and almost a mile from the Potosi-DeSoto road which connects with the State highway at Vineland. According to his testimony he was sitting in his home at some time between eight and twelve o'clock when three men came to his place. There was no light in the room except that made by the fire in the heating stove. He was uncertain as to whether or not all three entered together. One of them pointed a pistol at him and demanded `We want your money.' When he replied that he had none his assailant began beating him upon the head with the pistol. The men then beat him severely with fists and the pistol, breaking both sides of his jaw and putting several gashes in his forehead. Some time during this interval a lamp was lighted, the shades pulled down and the telephone and radio wires torn off. There were then three medium sized men in the room, none of whom he recognized because of the white handkerchiefs used as masks over their faces covering their noses and mouths. They searched for his money, forced his desk open and ransacked through his books and papers. After their search for money proved futile they took a shotgun and rifle which he had in the room, a pistol from the dresser drawer, field glasses from the top of the desk, tore his watch from his pocket, and as the lamp chimney fell to the floor departed, warning him to keep still and stay inside. The double-barrelled, hammerless, twelve-gauge shotgun and the 32-caliber Smith and Wesson pistol were recovered and identified at the trial as those stolen. At that time he was in a dazed condition and believed he then lay down on the bed. Next morning he found the desk open and its contents strewn over the floor, a bucket half full of bloody water in the kitchen and the bloody bed clothes where he had lain and his face swollen and bruised. The next morning he called in one of his neighbors, and Dr. S. F. Thurman of Potosi was called; and he found that Bust's face and neck and upper part of his body were blue and swollen and lower jaw broken and ragged cuts on the left side of the face made as if from the blow with a pistol. The latter dressed his wounds and he was taken to Potosi and to
a hospital in St. Louis where he remained some two weeks.
"According to the testimony of Archie Sullivan, who was convicted in connection with this offense, the defendant, Lilburn (Brassie) Belleville and he on the above date, while riding to or from Bonne Terre, in defendant's car, planned the trip to rob Bust. They drove to his house at between six and eight p. m., left the car on the road and the three walked about one-half mile to the house. When he hesitated on going on, Brassie said, `If you are scared, I will get it myself.' Brassie entered first carrying a pistol that had been in defendant's car. Soon they heard his demand for Bust's money and then the sound of blows being struck and he and defendant entered. All three wore handkerchiefs over their faces from the nose down. Brassie had beaten Bust about the face and head and continued to strike him. A lamp was lighted and defendant had hold of Bust and asked if he had any money. In his hand he held a hammer handle which Sullivan took and threw in a corner. Defendant and Brassie suggested that they kill Bust and get him out of the way to which the witness objected because Bust already appeared to be about dead. Sullivan washed the blood from Bust's face and one of his companions asked him to tie Bust and seeing his condition—cut and bleeding, he refused. He took the shotgun, one of his companions took the rifle, Brassie took the watch from Bust's pocket and handed it to defendant who also had the field glasses, and they departed. He saw Brassie with a pistol other than the one carried in and which `looks like the pistol in evidence.' Upon leaving the house the three had a conversation in which they `were talking about being down there and decided we would make up some other plans if we got caught, and we were thinking about things to say.' The rifle which they had taken was thrown out of the car at Vineland. The gun was taken to DeSoto and left with Joe Johnson.
"The defendant was arrested on the 3rd or 4th of February, two or three days after Sullivan and Brassie Belleville had been arrested and confined in jail. On February 7th, Sheriff Simmons and Deputy Sheriff Simmons brought him from the Jefferson County jail to the jail in Washington County where Sullivan and Brassie were then confined. Defendant talked to them there and asked if they had made confessions. He then said, `Well, I just as well make mine. I have held out long enough on the sheriff. I just as well make a confession too.' The officers then took him to the Prosecuting Attorney's office where he made his confession. As he related the occurrence it was written by the Prosecuting Attorney and reread to him and signed in the presence of the Prosecuting Attorney, the Sheriff and Deputy Sheriff, Justice of the Peace Whitehead and one Mr. Settle. The two officers and Settle testified that the confession was made without promise of leniency in prosecution or threats and that the confession might be used against him in prosecution.
"The defendant offered evidence to disprove the admissibility of the statement; the objection thereto was overruled and the confession as offered in evidence is as follows:
"`I Fred Salisbury, do hereby make the following confession without any promise of immunity from prosecution or lienincy in punishment for the crime hereinafter confessed to, and without and in the absence of duress or promises of any kind from anyone; and of my own free will.
"`I, in company with Archie Sullivan and Brassie Belleville, went to Bonne Terre, Missouri, on Sunday the 26th day of January, 1930, while on the way back from Bonne Terre to DeSoto Brassie told Archie and I, that he knew where there was an old gentleman that had about seventy dollars, that it would be easy to get and that he would go in and get it by himself. I agreed to drive him down there. We stopped in DeSoto a while and then drove on down there and I parked the car down at the gate by the Hall; I left my overcoat in the car and Brassie did also, and we walked up there. We stood on the out-side for awhile. Brassie said if you are scared to go in I will go in myself. Then Brassie went in first, he took my gun, Archie and I stayed out there until we heard the old gentleman hollering. Archie and I went in and Brassie had him pretty well butchered up before we could get the light lit. It was about five minutes before we could get the light lit. After we got the light lighted, we took the gun away from Brassie, and we saw he didn't have any money, so we tried to get Brassie to leave two or three times, Brassie would not pay any attention to us but kept beating the old gentleman. I took the gun away from Brassie and hit the old gentleman once with my right hand. I hit him with the side of my fist. I did not hit him with the gun or a club. I had a hammer handle and started to hit him with it and Sullivan took it away from me. We built a fire for the old gentleman and then left. And went back to DeSoto.
"`We took a rifle, a shotgun, a watch. We throwed the rifle out at the Vineland Spring, and I think Brassie put it back in the car again, I don't remember seeing it again. Sullivan had the shotgun but I don't know what he did with it. It was still in the car when we left the Vineland Spring. Archie took the...
