State v. Williamson

• Decision Date: 20 December 1938
• Docket Number: 36166
• Citation: 123 S.W.2d 42,343 Mo. 732
• Parties: The State v. John F. Williamson, Appellant
• Court: Missouri Supreme Court

123 S.W.2d 42

343 Mo. 732

The State v. John F. Williamson, Appellant

No. 36166

Supreme Court of Missouri

December 20, 1938

Appeal from Ste. Genevieve Circuit Court; Hon. Taylor Smith, Judge.

Affirmed.

Raymond S. Roberts for appellant.

(1) The appellant insists that the admissions as testified to by Sheriff Drury were not voluntary and that therefore the trial court committed reversible error in admitting the admissions in testimony. State v. White, 292 S.W. 411; State v. Patterson, 73 Mo. 695; State v Hart, 237 S.W. 473; State v. Williamson, 99 S.W.2d 76. (2) The appellant insists that the oral statements testified to by the sheriff, as statements made by the defendant in the Perryville jail, were not voluntary. State v. Nagle, 32 S.W.2d 597; State v Williamson, 99 S.W.2d 76. (3) The appellant insists the trial court committed reversible error in permitting testimony of Gene Radford, taken at the former trial, being read to the jury, when said testimony was not signed by Gene Radford. State v. Jamerson, 252 S.W. 682; State v. Lloyd, 87 S.W.2d 418. (4) Defendant's Instruction 8, should have been given by the court as a cautionary instruction in view of the testimony and other instructions. State v. Freeman, 57 S.W.2d 1084; State v. Wilkins, 100 S.W.2d 889; State v Hendricks, 172 Mo. 654.

Roy McKittrick, Wm. Orr Sawyers and Franklin E. Reagan, Assistant Attorneys General, for respondent.

(1) The information is sufficient, both as to form and substance. State v. Rasco, 239 Mo. 535, 144 S.W. 449; State v. Williams, 309 Mo. 155, 274 S.W. 427. (2) The admission against interest of defendant that he was alone when he killed deceased was properly in evidence as a voluntary statement. State v. Williamson, 99 S.W.2d 76, 339 Mo. 79; State v. Hart, 292 Mo. 74, 237 S.W. 478; State v. Gaskins, 89 S.W.2d 649; State v. Tharp, 64 S.W.2d 255, 334 Mo. 46; State v. Meyer, 238 S.W. 457, 293 Mo. 113. (3) Testimony of Gene Radford given at former trial of this cause was properly admitted in evidence. Sec. 1714, R. S. 1929; State v. Lloyd, 87 S.W.2d 422; State v. Harp, 6 S.W.2d 564. (4) Instruction 8 instructing the jury to consider statements made by defendant with great caution was properly refused. State v. Holmes, 144 S.W. 418, 239 Mo. 469. (5) The cause should be remanded to the trial court with directions. State v. Batson, 116 S.W.2d 36.

OPINION

Tipton, J.

This is the second appeal from a conviction of murder in the first degree for the killing of one George Williams. The first conviction, in which his punishment was assessed at death, was reversed by this court because the trial court improperly admitted in evidence a signed confession of the appellant which was not a voluntary confession. That opinion is reported in 339 Mo. 1038, 99 S.W.2d 76.

The deceased lived alone in a cabin in the rural section of Ste. Genevieve County. His body was found in the woods about a halfmile from the cabin late in the afternoon of Sunday, August 11, 1935. His cabin had been broken into and certain articles of personal property were missing therefrom, which were later found in the appellant's possession. While the sheriff, coroner, and others were on the way to recover the body, they came upon the appellant and a truck driver he had hired in the act of hauling two hogs from the premises of the deceased. The coroner testified that, judging by the condition of the corpse, death had taken place some thirty hours before he and the sheriff arrived at the place where the body was found. There was testimony that the appellant was seen going in the direction of the deceased's home and later returning therefrom carrying something in sacks about the time the killing must have occurred. The appellant does not attack the sufficiency of the evidence.

The appellant's first assignment of error is that the trial court erred in admitting in evidence the testimony of the sheriff relative to a statement made by the appellant a day or two before the first trial. Testimony is that the sheriff asked, "John, I want to know if you were by yourself when you shot or was somebody with you," and the appellant's answer was, "I was by myself." This evidence was objected to on the ground that it was not voluntary as it was obtained through promises of clemency made by the officers and, therefore, should not have been admitted. In the preliminary examination before the court, it was shown that no promise was made by the sheriff until after the above conversation took place. (It was later in this conversation that the sheriff told the appellant that he would recommend to the prosecuting attorney that he be sent back to the Illinois penitentiary, and relying upon this promise the appellant made a written confession which we held to be error in the first trial.)

The evidence in the case at bar clearly shows that when the appellant answered, "I was by myself," the answer was given previous to any promise having been made. "If any promises were made to the appellant after his confession, it would not render such confession involuntary and objectionable as evidence." [State v. Meyer, 293 Mo. 108, 238 S.W. 457.] Upon this showing, we rule the answer above quoted to be admissible. [State v. Williamson, 339 Mo. 1038, 99 S.W.2d 76; State v. Gaskins, 89 S.W.2d 647; State v. Tharp, 334 Mo. 46, 64 S.W.2d 249; State v. Hart, 292 Mo. 74, 237 S.W. 473.]

The sheriff also testified as follows: "Q. Did he tell you at Perryville when he got the clock and gun and axe? A. He said he was at George Williams' house on that Saturday, the 10th, and that he got them that day. Q. On August 10th, 1935? A. Yes." This conversation took place on October 25, 1936, after our decision had been rendered granting the appellant a new trial.

It is the appellant's contention that this statement was made subsequent to the promise made by the sheriff to the appellant. In other words, he contends that as the original or written confession was involuntary, then all subsequent confessions would likewise be involuntary.

"Where a confession has been obtained under circumstances rendering it involuntary and inadmissible, a presumption exists that any subsequent confession arose from a continuance of the prior influence, and this presumption must be overcome before the subsequent confession can be received in evidence. The controlling influence which produced the prior confession is presumed to continue until its cessation is affirmatively shown, and evidence to overcome or to rebut this presumption must be very clear, strong, and satisfactory; if there is any doubt on this point, the confession must be excluded." [16 C. J. 722-723.] This rule has been uniformly followed in this State. [See State v. Jones, 54 Mo. 478; State v. Brown, 73 Mo. 631; State v. Ellis, 294 Mo. 269, 242 S.W. 952; State v. Condit, 307 Mo. 393, 270 S.W. 286; State v. Nagle, 326 Mo. 661, 32 S.W.2d 596.]

But, on the other hand, if no connection appears between the threats or promises that made the original confession inadmissible, and a subsequent confession offered in evidence, the subsequent confession will not be excluded. [State v. Hart, supra; State v. Hopkirk, 84 Mo. 278; State v. Patterson, 73 Mo. 695; State v. Jones, supra.]

However, we are unable to see how it could be claimed in this case that the influence created by this promise made to the appellant prior to the first trial could continue to the time the subsequent statements were made by him to the sheriff. Shortly after the promise was made by the sheriff that he would recommend to the prosecuting attorney that the appellant be sent back to Illinois, the appellant was placed on trial and convicted, receiving a death sentence. Certainly, after this case was reversed by this court, it could not be said that at that time the appellant was relying on the promise of the sheriff. There is no connection between that promise by which the written confession was obtained and the second statement in which he told where he obtained the clock, gun and axe. We rule this point against the appellant.

The testimony of Gene Radford, given in the first trial, was read from the bill of exceptions of that trial. The appellant contends because this was not signed by Radford it is reversible error. Testimony of a witness in a bill of exceptions is not signed by the witness. The signature of the trial judge is all that is required. It is true in homicide cases that the statute requires that a witness sign his testimony given at a preliminary hearing, and if not signed it cannot be read in evidence. [State v. Jamerson, 252 S.W. 682.] But that is not the situation here. In the case at bar, the testimony read to the jury was given at the first trial of this case. There could be no objection that due diligence was not shown to secure the presence of this witness at the second trial. In fact, the evidence shows that he left the State and his whereabouts were unknown at the time of the trial to his kinsmen and acquaintances. The return on the subpoena shows that he was not found in the county. We rule this point against the appellant.

The appellant's last assignment of error is that the court erred in refusing Instruction No. 8, which is as follows:

"The Court instructs the jury that verbal statements, if any, made by the defendant in relation to the offense should be received with great caution; as they are...