The State v. McKenzie

• Decision Date: 17 May 1898
• Citation: 45 S.W. 1117,144 Mo. 40
• Parties: The State v. McKenzie, Appellant
• Court: Missouri Supreme Court

45 S.W. 1117

144 Mo. 40

The State v. McKenzie, Appellant

Supreme Court of Missouri, Second Division

May 17, 1898

Appeal from Cole Circuit Court. -- Hon. Dorsey W. Shackleford Judge.

Affirmed.

James H. Lay, Joseph R. Edwards and F. M. Brown for appellant.

(1) The court erred in allowing the confessions of appellant made to the officers having him in charge to be admitted in evidence because obtained through fear and by threats and inducements in short, they were not free and voluntary confessions as required by the law. 1 Greenl. on Ev. [14 Ed.], sec. 214, p. 275, and note; sec. 219, p. 281; sec. 223, p. 288; sec. 222, p. 287; Wharton's Crim. Ev. [9 Ed.], sec. 650, p. 554; sec. 646, p. 552; sec. 623, p. 537; sec. 625, p. 538; sec. 626, p. 538; sec. 627, p. 539, and note; sec. 630, p. 543; Underhill on Ev., sec. 88a, p. 125; sec. 89, p. 128; sec. 95, p. 135; Hector v. State, 2 Mo. 166; Couley v. State, 12 Mo. 462; State v. Brockman, 46 Mo. 566; State v. Hogan, 54 Mo. 192; State v. Jones, 54 Mo. 478; State v. Duncan, 64 Mo. 263; Flagg v. People, 40 Mich. 706; Self v. State, 6 Baxter, 244; Ford v. State, 21 So. Rep. 524; People v. Thompson, 84 Cal. 598; Williams v. State, 72 Miss. 117; Simon v. State, 37 Miss. 288; People v. Ward, 15 Wend. 231; People v. Rankin, 2 Wheeler's Crim. Cases, 467; Ann v. State, 2 Humph. 39; Beery v. U.S. 2 Col. 186; Commonwealth v. Nott, 135 Mass. 269; Bubster v. State, 33 Neb. 663; State v. Mims, 43 La. Ann. 532; Montana v. McClin, 1 Mont. 394. (2) If confession made to Sheriff Sone and Marshall Henderson is held inadmissible, then also must the confession made to witness Clay be held inadmissible, because confession to Clay was made almost directly after one to Sone and Henderson, and the law holds that under such circumstances the influence continues, and the second confession is therefore as inadmissible as first. 1 Roscoe's Crim. Ev. [8 Ed.], star p. 50; Wharton's Crim. Ev. [9 Ed.], sec. 677; 1 Greenl. on Ev. [14 Ed.], sec. 221; State v. Jones, 54 Mo. 478; Beery v. U.S. 2 Col. 186; Murray v. State, 25 Fla. 528; Simon v. State, 37 Miss. 288; Ford v. State, 21 So. Rep. 524; Banks v. State, 4 So. Rep. 382.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

(1) The court properly heard the testimony as to the competency of the confession before passing on its admissibility. Wharton on Crim. Ev., sec. 689; State v. Fidment, 35 Iowa 541. (2) The instruction of the court to the jury as to the confession or as to the evidence of the confession was proper. State v. Fidment, 35 Iowa 541; State v. Vann, 82 N.C. 632. (3) If the confession is voluntary on its face the burden is on the defendant to show it to be incompetent. 25 Ohio St. 464; Wharton's Crim. Ev., sec. 689. The confession of the defendant was voluntary. State v. Buster, 26 Ala. 129. (4) Either party has the right to prove to the jury the same facts and circumstances which were legally proved to the court when it was called upon to decide the question of competency, and all other circumstances applicable to the confession or having any legal bearing on its credibility or effect; and if, in view of all the facts and circumstances proved, the jury entertain a reasonable doubt as to the truth of the confession, they may disregard it in their decision of the case, as being incredible, although they can not reject it as incompetent. Com. v. Dillon, 4 Dall. 116; Com. v. Knapp, 10 Pick. 477; 2 Phil. Ev. 235-240, notes 205 and 207; Garrard v. State, 50 Miss. 152. (5) A confession is presumed to be voluntary unless the contrary is shown, or something appears in the confession or its attendant circumstances to combat such circumstances. State v. Meyers, 99 Mo. 107; State v. Patterson, 73 Mo. 695. It is for the court to determine as a preliminary question whether a confession was made with that degree of freedom which ought to permit its admission as evidence. State v. Duncan, 64 Mo. 262; State v. Patterson, 73 Mo. 695. (6) It is the province of the jury to determine the weight of the confessions. State v. Brooks, 92 Mo. 542.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

At the March adjourned term, 1896, of the Cole county circuit court the defendant, Ed. McKenzie, a negro man, was indicted for the murder of Nicholas Linhardt near Lohman Station in said county, on the night of April 30, 1896. Defendant was arrested but escaped from prison and remained at large until September, 1897, when he was again apprehended. He was tried at the November adjourned term, 1897, of the circuit court of Cole county, in January 1898, and convicted of murder in the first degree. From the sentence he prosecutes this appeal.

The court instructed the jury as follows:

"If you find from the evidence that at the county of Cole and State of Missouri, at any time before the finding of the indictment herein, the defendant did willfully, deliberately, premeditatedly and of his malice aforethought kill Nicholas Linhardt, by striking him on the head with a club or stick of wood which was a deadly weapon, then you will find the defendant guilty of murder in the first degree.

"'Willfully' means intentionally -- that is, not accidentally.

"'Deliberately' does not mean brooded over, or reflected upon for a week, a day, or an hour, but it means a conscious purpose to kill, formed in a cool state of the blood, and not under a violent passion suddenly aroused by some real or supposed grievance.

"'Premeditatedly' means thought of beforehand for any length of time, however short.

"'Malice' does not mean mere hatred, spite or ill-will as ordinarily understood; but it means that the killing was wrongfully and intentionally committed. And "malice aforethought" means that the killing was with malice and premeditation.

"The defendant is presumed to be innocent of the offense charged against him, and this presumption entitles him to an acquittal unless overcome by evidence sufficient to convince you of his guilt beyond a reasonable doubt.

"If upon consideration of all the evidence you have a reasonable doubt of the defendant's guilt, you must acquit him, but such doubt to warrant an acquittal should be a substantial doubt of his guilt and not a mere possibility of his innocence.

"You, also, are the judges of what credit you will give to the testimony of the witnesses.

"If you find that the defendant fled the country for the purpose of avoiding trial upon this charge, it is a circumstance tending to show guilt, which you may consider with the other facts and circumstances in evidence.

"In considering what the defendant said after the killing in any conversation proved by the State, all of such conversation must be considered together. He is entitled to what he said in favor of himself, if true, and the State is entitled to what he said against himself. What he said against himself, if anything, the law will presume to be true, because said against himself; but what he said for himself you are not bound to believe, because said in a conversation proved by the State. But you may believe, or disbelieve the same as you find it to be true or false by the evidence in the case.

"If you believe any admission of the defendant testified to by any witness was induced by fear on the part of the defendant that he would be taken from the penitentiary back to the city of Jefferson and there subjected to the perils of a mob, then you will disregard such admissions and all others made subsequent thereto."

To the giving of which instructions the defendant, by counsel, excepted at the time.

The defendant, upon his part, prayed the court to instruct the jury as follows:

"1. The jury are instructed to exclude from their consideration all evidence purporting to be the confession of defendant.

"2. The jury will, in determining this case, exclude from their consideration the alleged confessions of defendant to S. H. Sone and J. J. Henderson."

And said instructions prayed by the defendant numbered 1 and 2 the court refused to give to the jury; to which refusal of the instructions thus prayed, the defendant, by counsel, excepted at the time.

And thereupon the jury returned the following verdict, finding the defendant guilty of murder in the first degree: "We, the jury, find the defendant guilty of murder in the first degree."

I. The indictment is in due form. The arraignment of the prisoner, the empaneling of the jury and the trial were all in accordance with approved practice. No error is apparent in the record proper and the learned counsel for defendant suggest none.

The evidence discloses that the prisoner had been employed at different times by deceased as a laborer on his farm; that in this way he became apprised of a habit of deceased to carry considerable sums of money on and about his person. He knew deceased had been to St. Louis with cattle to sell, just a short time before the murder, and said he killed him for the money. He left Jefferson City for that purpose that day. On the afternoon of April 30, Linhardt, the deceased, came over to Lohman Station and sat and talked with a neighbor at Couch's store until it was getting dark when he started home. About 9 o'clock that same night he was found unconscious in the public road by J. B. Linhardt and F. W Blochberger on their return home from Jefferson City. When they found him they discovered he had apparently been beaten over the head with a club or other blunt instrument. They placed him in their buggy and took him to his home. He died about 10 o'clock on the morning of May 1, 1896. A post mortem by the coroner, Dr. Son, disclosed that the left side of his skull was broken in various places, extending from the frontal portion of the skull...