State v. Yeager

• Decision Date: 18 December 1928
• Docket Number: No. 29042.,29042.
• Citation: 12 S.W.2d 30
• Parties: STATE v. YEAGER.
• Court: Missouri Supreme Court

12 S.W.2d 30

STATE v. YEAGER.

No. 29042.

Supreme Court of Missouri, Division No. 2.

December 18, 1928.

Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.

Leonard Yeager was convicted of murder in the first degree, and he appeals. Affirmed.

Jas. G. McHale and Ernest R. McHale, both of East St. Louis, Ill., for appellant.

Stratton Shartel, Atty. Gen., and L. Cunningham, Asst. Atty. Gen. (A. M. Meyer, of Jefferson City, of counsel), for the State.

DAVIS, C.

The grand jury of the city of St. Louis indicted, and a petit jury therein convicted, defendant of murder in the first degree for killing one Gunnerious Schou. The punishment fixed by the verdict was death. Defendant appealed.

Maurice Birmingham and defendant were jointly indicted for the crime, but a severance was granted. The salient facts may be briefly stated. They warrant the finding that November 17, 1926, shortly before midnight, in the city of St. Louis, defendant and Birmingham visited the soft drink parlor of Frank Doherty at 1159 South Kingshighway. Conrad Le Duc, the bartender, was behind the bar, while Carlson and Rigoni, customers, were in front of it, and one Serando with a female companion was seated in a booth. On entering Birmingham accosted the bartender and inquired for Doherty. The men asked for a highball, but were served ginger ale. On order, they again were served a drink of ginger ale. Presently, Birmingham called the bartender to the end of the bar, and, enticing him outside of it, put a pistol to his stomach, and said, "Hold 'em up," and holloed, "Let's go." Defendant covered Carlson and Rigoni with his pistol, a Colt's revolver of blue steel. Birmingham's revolver was a Marlin, nickel-plated. They caused the bartender, Carlson and Rigoni, together with Serando and his companion, to kneel at the end of the bar with their hands up. At the command of Birmingham, defendant rifled the till and searched and robbed the victims, obtaining in all in excess of $100. A few men were refreshing themselves in the basement at the time. During the occurrence a man, Parsons by name, with a bowl of chili intended for the bartender came from the basement upon the scene. He was made to kneel and deliver. Presently, during the scene depicted, Gunnerious Schou ascended from the basement, and observing probably the picture presented, started out the door. Birmingham said, "Go get that fellow. If he don't stop, shoot him." Defendant, immediately stepping about ten feet towards him, shot Schou, the bullet entering the face just under the left eye and penetrating the brain, whereupon Schou languished for a few days and died, the cause of which was the gunshot wound as related. Defendant then turned around with the smoking gun and said to the bartender, "I got a notion to blow your brains out," but instead he backed out, keeping them covered. Birmingham in the meantime had returned to the Chrysler sedan, which he started. Then the automobile, a four-door Chrysler sedan, which the testimony tends to show was stolen by Birmingham in Chicago, started and vanished in the night. The testimony of five or six witnesses tended to establish the preceding facts and to identify defendant. No weapon was found on Schou. The evidence tends to show that defendant orally, two or three times, as well as by a signed writing, voluntarily and without force, coercion, intimidation, threats or promise of any kind, confessed in substance to the matters heretofore related, among which was the statement that he stepped to the door and fired a shot at Schou.

The evidence adduced by defendant tended to show that his reputation for honesty and peaceableness and quietude was good. He stated that he was 29 years of age and had been in the employ of the Armour Packing Company as foreman over 20 men. He had met Birmingham in East St. Louis, Ill., three nights preceding the murder at the homebrew joint of one Prentiss. Birmingham at the point of a pistol, on the night of the murder, compelled him to go for a ride in his Chrysler sedan. While crossing the bridge, Birmingham handed defendant a revolver. They came to St. Louis and visited a place or so, one of which Birmingham suggested that they rob, but defendant balked and said he was not going to get in a jam like that. With a revolver in his possession, he then rode to Doherty's place with Birmingham. He stated that Birmingham conducted the robbery at the Doherty place, making the people there kneel, and that it was Birmingham that shot Schou, while the defendant was standing at the bar drinking a soda highball. Additional facts, in their relation to the issues discussed, will hereafter appear.

I. Defendant disputes the action of the trial court in holding that a certain juror, who avowed that, in case of conviction, he favored the penalty of death, was competent to sit as such. The juror stated, however, that, if the evidence warranted only a life sentence, that would be his vote. The statute pertinent thereto, section 4014, Revised Statutes 1919, reads: "It shall be a good cause of challenge to a juror that he has formed or delivered an opinion on the issue, or any material fact to be tried, but if it appear that such opinion is founded only on rumor and newspaper reports, and not such as to prejudice or bias the mind of the juror, he may be sworn."

The issue was the guilt of defendant. State v. Hays, 78 Mo. 307. The infliction of the punishment was not a material fact to be tried, but, instead, it ensued from a determination of the triable material facts. It was said in State v. Snyder, 182 Mo. 462, loc. cit. 506, 82 S. W. 12, 25, that, "The fact that the juror had special notions as to his duty in fixing the punishment did not affect his competency." The question of the juror rendering no other verdict than one fixing the punishment at death is not presented, for the juror's statement goes no further than asserting that in certain cases he favored the infliction of the death penalty. His statement that, if he thought the evidence would warrant only a sentence for life imprisonment, he would vote that way, demonstrates that the juror would determine his conclusions as to the punishment to be fixed from the evidence adduced, thus nullifying the conclusion of defendant that the juror would render no other verdict than one fixing the punishment at death. 35 C. J. 354.

II. Defendant avers that the court did not determine, before admitting the confessions in evidence, that they were voluntary, and contends that it refused to consider and pass upon the weight of the evidence in that regard; that a confession obtained by violence and threats is inadmissible; and that duress once shown is presumed to continue until the contrary appears. The following cases support the contentions: State v. Stebbins, 188 Mo. 387, 87 S. W. 460; State v. Thomas, 250 Mo. 189, 157 S. W. 330; State v. Ellis, 294 Mo. 269, 242 S. W. 952, 24 A. L. R. 682.

A hearing was had before the court out of the presence of the jury as to the admissibility of the confessions. The evidence develops that defendant's coindictee, Birmingham, was first arrested and identified as a participant in the robbery and homicide, thereupon confessing it and implicating defendant. Acting upon information thus obtained, Illinois and Missouri police officers proceeded to the abode of defendant, and, entering his room with drawn weapons, arrested him. No threat or act of violence took place, according to the officers. Upon being taken to the police station, the officers, around or after 2 o'clock a. m., questioned defendant, who denied any knowledge. Birmingham at this juncture was brought upon the scene and made a statement in the presence of defendant, who denied acquaintance with Birmingham or knowledge of the shooting. Somewhere between 3:30 and 6 o'clock a. m., defendant called Officer O'Brien, of the Illinois police, to his cell, saying he wanted to make a statement, which he made in substance as detailed in our statement of facts, without abuse or promise of any kind, according to the state witnesses. When taken to the city of St. Louis, defendant signed a written confession, without abuse or promise, according to state witnesses.

Defendant testified, in substance, that he was asleep when the officers came to arrest him, but awakened when one grabbed him, who said, "Get out of there, you s____o____ b____." Officer Carroll, during the arrest, said to Officer O'Brien, standing before defendant, "Step out of the way, Sergeant O'Brien, and let me kill the s____o____b____." The officers then took him to the police station and questioned him.

Defendant said he denied the occurrence of the robbery and shooting of Schou, and was then placed in a cell. In about an hour, Officer O'Brien took him upstairs and, in the presence of several Illinois police officers, said to defendant, "You tell the truth," to which defendant replied that he had done so. O'Brien said, "You are a damn liar." Then some one from the rear hit defendant on the side of the head, and he was grabbed and laid on the floor. O'Brien sat upon his chest, and, opening his clothes, used a twitch on him, whereupon he told them he had done the shooting. About 8 a. m. he was taken to the office, where they again questioned him, and, upon denying that he shot the man, O'Brien said, "You are a damn liar; when we get to the other side, you will talk." He then told them what he did and how it happened. Upon being taken to St. Louis, he was again questioned in the presence of Illinois and Missouri police officers, and, in fear because of the punishment...