State v. Walker

• Decision Date: 12 November 1888
• Citation: State v. Walker, 98 Mo. 95, 11 S.W. 1133 (Mo. 1888)
• Parties: STATE v. WALKER.
• Court: Missouri Supreme Court

11 S.W. 1133

98 Mo. 95

STATE v.WALKER.

Supreme Court of Missouri.

November 12, 1888.

Indictment against William Walker for murder.For majority opinion, see9 S. W. Rep. 646.

SHERWOOD, J., (dissenting.)

I am called upon to say why I dissent from the conclusions reached in the majority opinion.These are my reasons:

1.The instruction asked by the state, and given, as to the necessity of receiving with caution the verbal admissions of defendant, was proper enough as far as it went; but it only asserted the familiar principle with respect to all verbal admissions, and the caution which should attend testimony touching their having been made.1 Greenl. Ev. §§ 45, 97, 200.The first instruction, however, asked by the defendant, and refused by the court, was much broader in its scope, and was different in its meaning.It related to the admissions made by the defendant as to the corpus delicti, and his connection therewith.These admissions, if made, were mere extrajudicial confessions, and that such confessions are utterly insufficient to warrant a conviction has been repeatedly held by this court.Upon this ground it was that the case of Robinson v. State, 12 Mo. 598, was reversed; upon this sole ground it was that in State v. Scott, 39 Mo. 424, the judgment was reversed; and upon this sole ground the judgment in the case of State v. German, 54 Mo. 526, was reversed.In State v. Patterson, 73 Mo. 695, this doctrine was distinctly recognized.In Robinson v. State, supra, one of the grounds of reversal was the refusal of the court to instruct, as asked by the defendant, that an extrajudicial confession was insufficient to convict, unless corroborated.And it was upon this sole ground that, though such an instruction was proper, yet, because it was not asked, the failure of the court to give it was sustained in State v. Brooks, 92 Mo. 542, 5 S. W. Rep. 257, 330.There is therefore no foundation for the assertion made in the majority opinion that "the prior cases in this court do not assert that such an instruction should be given in such cases."So that it will readily be seen that if Robinson's Case still stands for law, and if Brooks' Case still stands for law, the foregoing opinion is not law; neither indeed can be.In Brooks' Case the judgment was affirmed because of the failure to ask the proper instruction on the point in question, but the propriety of the instruction was conceded.Here not only is the propriety of the instruction denied, but the judgment is affirmed, notwithstanding the failure to give what is conceded in Brooks' Case and in Robinson's Case to be a correct instruction.Does the present case overrule those cases?If not, why not?In the majority opinion it is gravely asserted: "But where the corpus delicti is fully and completely established by the evidence, outside of the confessions, it is not error to refuse to instruct that it devolves upon the state to show by extraneous evidence that the alleged crime had been committed by some one."The condemnation of the doctrine thus declared has been sufficiently shown by the cases cited; but let us look at it apart from precedent and the same result is inevitable.The argument is that, if the evidence is amply sufficient, the propriety of refusing instructions based thereon thereby becomes immaterial.With equal propriety an appellate court might gravely say that because the evidence respecting a homicide is confessedly sufficient to show circumstances of deliberation, premeditation, and malice aforethought, therefore an instruction defining those terms was unnecessary.In short, this court places itself on record as in effect declaring that, if the evidence on a disputed fact is full and complete, strong and convincing, this does away with any necessity for an instruction based upon such fact.Accustomed as are the members of the legal profession of this state to surprises from this court in its enunciation of new rules and principles of criminal law, they will doubtless be startled by this, its latest utterance.The case of State v. Lamb, 28 Mo. 218, has been cited as upholding the view that the distinction to be taken between judicial and extrajudicial confessions was a...