The State v. Ellis

• Citation: 242 S.W. 952,294 Mo. 269
• Parties: THE STATE v. ALBERT ELLIS, Appellant
• Decision Date: 08 June 1922
• Court: United States State Supreme Court of Missouri

242 S.W. 952

294 Mo. 269

THE STATE v. ALBERT ELLIS, Appellant

Supreme Court of Missouri, Second Division

June 8, 1922

Appeal from St. Louis City Circuit Court. -- Hon. Moses Hartmann Judge.

Reversed and remanded.

William Maffitt Bates for appellant.

(1) The trial court erred in admitting the confessions in evidence. The confessions were false and were improperly secured from defendant by officers while he was in their custody. They were the result of the use by said officers upon defendant of coercive means and methods which were inhuman, unlawful and criminal in their nature. Acts 22:22-29; 1 Cooley's Blackstone, chap. 1, star p. 133; State v. Thomas, 250 Mo. 212; Bram v. United States, 168 U.S. 542; Com. v. McClanahan, 153 Ky. 417, 50 L. R. A. (N. S.) 1077, note. (a) St. Louis policemen are officers of the State. R. S. 1919, sec. 8973; State ex rel. v Comm., 184 Mo. 133. They are not empowered or authorized to initiate criminal proceedings, or to examine and punish prisoners. When they undertake to do so they are assuming functions which are entrusted solely to the courts without those precautions which courts are required by law to use. R S. 1919, secs. 8953, 8954, 8963; Regina v. Mick, 3 F. & F. 822. (b) No cases require more careful scrutiny than those of disclosure made by a party under arrest to an officer who has him in custody. Bram v. United States, 168 U.S. 542; People v. Knapp, 42 Mich. 270; Preuit v. People, 5 Neb. 383; Com. v. Curtis, 97 Mass. 578; United States v. Martin, 26 F. 1182; State v. Cross, 72 Conn. 722; 2 Moore on Facts, 1173, 1174, 1328; Regina v. Stokes, 70 Jurist, 192; State v. Barrington, 198 Mo. 125. (c) The age, size, schooling, experience and mental capacity of the defendant, together with all the circumstances under which the confessions were made, are to be taken into consideration in determining the question of their admissibility. State v. Fredericks, 85 Mo. 149; State v. Powell, 258 Mo. 248; State v. Nave, 283 Mo. 39. (d) Policemen, witnesses for the State, according to their own admissions, were guilty of violating the criminal statute against oppression and abuse of authority. R. S. 1919, secs. 3193, 3195; State v. Ragsdale, 59 Mo.App. 590; 3 Bouvier's Law Dictionary (8 Ed.) "Oppression," "Oppressor." (e) The testimony of witnesses for the State shows that policemen, in obtaining the confessions of defendant, violated every clause of the criminal statute concerning third-degree methods. R. S. 1919, secs. 3681, 3682. (f) Policemen, witnesses for the State, without warrant held defendant in "hold-overs" and in custody for a period of seventy hours without opportunity to consult with counsel and other persons in his behalf, in violation of the statute. R. S. 1919, sec. 3200. (2) The first or original confession was extorted from the defendant by policemen who, for eighteen hours, applied to defendant third-degree methods, including beating, starving, depriving of sleep and continuous questioning and holding out hopes of bail and release. Said confession was not free and voluntary, as clearly shown by the facts testified to by the State's witnesses. The court erred in admitting it on the unjustified conclusions of those who extorted it. State v. Wooly, 215 Mo. 682; State v. Powell, 266 Mo. 107; State v. Thomas, 250 Mo. 211; State v. Lewis, 273 Mo. 525; People v. Loper, 159 Cal. 6. (a) As one means to compel defendant to confess, police officers, as commanded by their captain, took him to the presence of the corpse of the murdered girl, and required him to stand within a few inches of it for five or ten minutes (and, as defendant says, compelled him to touch the corpse), thus bringing forth from the rubbish of the Dark Ages, the Ordeal of Bier, a superstition having no ground either in law or reason. Case of Murder in Hertfordshire, 14 Howell's State Trials, 1324, 1328; Trial of Philip Stansfield, 11 Howell's State Trials, 1380. (3) Where a confession has been obtained through influence, a presumption arises that a subsequent confession flows from a like influence, and such presumption must be overcome before the confession can be given in evidence. State v. Jones, 54 Mo. 478; State v. Brown, 73 Mo. 631; State v. Wood, 122 La. 1014; State v. Lee, 127 La. 1077; Johnson v. State, 48 Tex. Crim. 423; Banks v. State, 93 Miss. 700; Reason v. State, 94 Miss. 290; People v. Loper, 159 Cal. 6; 16 C. J. 722-723. (4) If a man be accused, interrogated and browbeaten by those who have him in custody until his will is overcome by mental torture, his confession thus obtained is no less involuntary than when obtained by physical punishment. State v. Powell, 258 Mo. 249; State v. Thomas, 250 Mo. 211; State v. Lewis, 273 Mo. 525; Com. v. McClanahan, 153 Ky, 416; People v. Quann Gim Gow, 138 P. 919; State v. Fields, Peck (Tenn.) 140; Wilson v. State, 110 Ala. 1; 2 Hawk, P. C. (6 Ed.) 604: (5) The confessions admitted in evidence were involuntary as a matter of law, and the court erred in admitting them in evidence. State v. Powell, 258 Mo. 248, 250, 266 Mo. 107; State v. Thomas, 250 Mo. 211; State v. Lewis, 273 Mo. 518; Bram v. United States, 168 U.S. 547; Purpura v. United States, 262 F. 473; Ammons v. State, 80 Miss. 592; Com. v. McClanahan, 153 Ky. 417; Robertson v. State, 81 Tex. Crim. 378; Gallaher v. State, 40 Tex. Crim. 311.

Jesse W. Barrett, Attorney-General, and R. W. Otto, Assistant Attorney-General, for respondent.

(1) The confession and statements made by the defendant in the presence of police officers, newspaper reporters and disinterested witnesses were freely and voluntarily made and were properly admitted in evidence. (a) A confession is prima facie presumed to be voluntary unless the contrary is shown. State v. Patterson, 73 Mo. 705; State v. Myers, 99 Mo. 119; State v. Jones, 171 Mo. 406; State v. Woodward, 182 Mo. 411; State v. Armstrong, 203 Mo. 559. (b) Where the evidence on the question of voluntariness is conflicting, or where the court is in doubt whether the confession was or was not voluntary, the whole matter may be left to the jury under instructions to disregard the confession unless they find that it was voluntarily made. State v. Moore, 160 Mo. 460; State v. Jones, 171 Mo. 407; State v. Stebbens, 188 Mo. 398; State v. Brooks, 220 Mo. 84; State v. Roach, 215 N.Y. 598; State v. Lipsczinska, 180 N.W. 622; People v. Prestidge, 182 Mich. 80; State v. Foster, 136 Iowa 527; Pigott v. Engle, 60 Mich. 227, 27 N.W. 539; State v. Storms, 113 Iowa 385, 85 N.W. 610. (c) The jury upon proper instructions found that there were no threats or promises made nor was the appellant forced to make a confession. The question was one for the jury and their finding is conclusive. State v. Brooks, 220 Mo. 74; State v. Spaugh, 200 Mo. 571; State v. Hedgepeth, 125 Mo. 14; State v. Patterson, 73 Mo. 695; State v. Lee, 231 S.W. 619; State v. Roach, 215 N.Y. 598; People v. Lipsczinska, 180 N.W. 622. (2) A confession of guilt is not rendered involuntary and inadmissible because made in response to interrogatories propounded by an officer, nor because the interrogatories assume the guilt of defendant, nor because such officer pretends to have evidence of defendant's guilt when he has no such evidence, nor if cunning artifice, falsehood and deception are used. State v. Thomas, 250 Mo. 211; State v. Barrington, 198 Mo. 109; State v. Phelps, 74 Mo. 136; State v. Jones, 54 Mo. 478; State v. Wooley, 215 Mo. 683. (a) The fact that the confession was made to an officer or in the presence of an officer after the defendant had been arrested is not sufficient to warrant the court in excluding the confession. State v. Armstrong, 203 Mo. 559; State v. Woodward, 182 Mo. 411; State v. Brooks, 220 Mo. 83; State v. Raftery, 252 Mo. 80. (b) A confession is not to be rendered inadmissible and rejected for the reason that it was made to an officer while under arrest or for the reason that the officer to whom it was made held the prisoner in custody upon an invalid process or without any process. State v. Raftery, 252 Mo. 80; State v. Armstrong, 203 Mo. 559. (c) There was no impropriety in the officers interrogating appellant with respect to his participation in the crime, and the evidence of the officers as to the confession is competent. State v. Thomas, 250 Mo. 210. (d) A confession made by an accused is admissible in evidence despite the fact that his attorney was not present, or that he had not been given an opportunity to consult with counsel. State v. Robinson, 263 Mo. 324. (e) A confession will be received if it was in fact voluntary, although it appears that prior thereto and even after his arrest accused had been threatened, or promises had been made, without success, for the purpose of receiving a confession. 16 C. J. 722, par. 1478; State v. Jones, 54 Mo. 479; State v. Hopkirk, 84 Mo. 283; State v. Keller, 263 Mo. 556. (3) The fact that the defendant testified he did not make the confession, or that he was punched, slapped, beat, and kicked, and that promises of immunity were made by the police officers at the police station did not overcome the prima-facie case and the testimony of the officers. He had the full benefit of his evidence before the jury. State v. Jones, 171 Mo. 406; State v. Stebbins, 188 Mo. 397; State v. Church, 199 Mo. 631; State v. Brooks, 220 Mo. 84.

REEVES, C. Railey, C., concurs; White, C., not sitting.

OPINION

REEVES, C. --

Defendant was charged and convicted of murder in the first degree, and his punishment assessed at life imprisonment. The indictment alleged that he killed one Edna Ellis, with a razor in the city of St. Louis on November 4, 1920. His defense was an alibi. After the usual motions he has appealed, contending that a confession obtained from him by the police and used against...