The State v. Myers

• Decision Date: 22 December 1925
• Docket Number: 26102
• Citation: 278 S.W. 715,312 Mo. 91
• Parties: THE STATE v. BERT R. MYERS, Appellant
• Court: Missouri Supreme Court

278 S.W. 715

312 Mo. 91

THE STATE v. BERT R. MYERS, Appellant

No. 26102

Supreme Court of Missouri

December 22, 1925

Appeal from Jackson Circuit Court; Hon. O. A. Lucas, Judge.

Reversed and remanded.

William C. Irwin and Thomas A. Costolow for appellant.

(1) The court erred in admitting in evidence an alleged written confession over the objection and exception of the defendant. State v. Thomas, 157 S.W. 330; State v Ellis, 242 S.W. 952; State v. Powell, 167 S.W 559; State v. Hart, 237 S.W. 473. (2) The alleged confession, as admitted in evidence by the court, contained evidence as to other transactions, which the court permitted to be read to the jury over the objection of the defendant. State v. Shobe, 268 S.W. 81; State v Murphy, 201 Mo. 691; State v. Teeter, 144 S.W. 445.

Robert W. Otto, Attorney-General, for respondent; C. E. Curtis of counsel.

(1) The appellant in his motion for new trial assigns as error the admission in evidence of the alleged confession of the defendant. Evidence was presented on both sides and it was not shown conclusively that the confession was wrung from the defendant. There was evidence to show its voluntary character as well as evidence to show its involuntary character. Such treatment of a defendant by officers, as shown here, is frowned upon by the courts. The following cases show the nature of confessions admitted. State v. Brooks, 220 Mo. 83; State v. Armstrong, 203 Mo. 558; State v. Spaugh, 200 Mo. 597; State v. Jones, 171 Mo. 406; State v. Ruck, 194 Mo. 437; State v. McNeal, 237 S.W. 741; State v. Hart, 237 S.W. 473. (2) A confession is prima-facie presumed to be voluntary until the contrary is shown. A trial court is in a better position than an appellate court to determine whether the confession was voluntarily made. State v. Armstrong, 203 Mo. 554; State v. Hayes, 247 S.W. 168; State v. Seward, 247 S.W. 150. (3) The denial of its voluntary character makes it a question for the jury. State v. Reich, 293 Mo. 424; State v. Hayes, 247 S.W. 165; State v. Seward, 247 S.W. 150; United States v. Oppenheim, 228 F. 232; State v. Brooks, 220 Mo. 80. (4) The court committed no error in permitting that part of the alleged confession of defendant, which contained evidence of a transaction by defendant immediately preceding the robbery, to be read to the jury. The transaction, to which the confession referred, happened, according to the confession, immediately before the alleged robbery, and it could come in to show a common scheme or purpose to commit crime. State v. Carroll & Jacoy, 288 Mo. 405; State v. West, 246 S.W. 546; State v. Lewis, 273 Mo. 531; State v. Prunty, 276 Mo. 359; State v. Kolafa, 236 S.W. 302; State v. Sharp, 233 Mo. 269; State v. Sherman, 264 Mo. 374; State v. Ottuck, 184 S.W. 108; People v. Molineux, 168 N.Y. 305; Underhill's Criminal Evidence (3 Ed.) 147 et seq.

Higbee, C. Railey, C., concurs.

OPINION

HIGBEE

The defendant and James Ingram were charged by indictment with robbery in the first degree; that is, that on April 7, 1923, at the County of Jackson, they robbed one O R. Noyes by taking $ 2.50 from his person. The alleged robbery occurred about midnight on Saturday, April 7th, and the defendant Myers was arrested on the following Monday. He was granted a severance. He was tried July 17th, the result being a disagreement by the jury. At the second trial, on September 28th, the jury found the defendant guilty as charged in the indictment, but failing to assess the punishment, the court fixed the punishment at a term of ten years' imprisonment in the penitentiary. From judgment and sentence the defendant appealed. It will not be necessary to detail all the evidence. The chief complaint made is that the court erred in admitting an alleged written confession by the defendant.

The defendant, who was then nineteen years old, was arrested at the office of his employers about four P. M., April 9th, by two policemen, and taken to the station where he was questioned by several detectives and policemen for six hours, when he signed the alleged confession of participation in the robbery on the previous Saturday night. These officers were armed with revolvers. We quote from the brief and argument of the learned Attorney-General:

"This case, as viewed by us, is subject to only one serious objection. The appellant, in his motion for a new trial, assigns as error the admission of the alleged confession of the defendant.

"As to the statement gotten from the defendant, Oliver R. Noyes, the prosecuting witness, testified as follows:

"He was at the police station at the time the defendant made his statement. Defendant was in a small room with three or four officers, and some other men. He was being questioned about the robbery of the witness. He started to tell these men that he was out with a young woman from about ten o'clock until one o'clock on the night of the alleged robbery. When he did so, Detective Doarn hit him. The defendant told Doarn, 'If you won't beat me -- if you won't kill me, I will make a statement.'

"Detective Doarn, who was present at the time the defendant made his statement, testified that he struck the defendant. He said, however, that he only pushed him along the side of the head with his open hand.

"Harvey L. Newman, who was present at the time the statement was made, testified that no threats were made before the defendant confessed, nor at any other time. He said that the defendant made his statement willingly. He testified, further, that the defendant was in the police station about six hours before his statement was read and signed by him.

"The defendant testified that when he was questioned by Detective Doarn about the alleged robbery, he started to tell the officer that he was out with a young woman at the time of the alleged robbery, but before he could finish the officer knocked him over. He said that the officers would take him downstairs in the jail for a few minutes and then bring him back upstairs and question him about the robbery. The officers finally handed him a written statement and told him to sign it. He did not dictate anything in the statement. He signed the statement because he thought he would be killed if he did not.

"Other witnesses testified that the defendant's face was beaten and bruised at the time they visited him in the jail and after the alleged confession was made.

"This evidence summarized shows that both the officer in charge of defendant and the prosecuting witness admitted that the defendant was struck by the officer be fore he made his statement."

In State v. Wooley, 215 Mo. 682, 115 S.W. 417, Fox, J., speaking for the court, said: "This question is not a new one in this court. It has repeatedly been in judgment before us and has received at our hands very careful consideration. It is always an important question, for it must be conceded that statements made by a defendant, which are obtained by improper inducements, such as the flattery of hope, promise of immunity, or reward, or by the use of any violence or threats, should never be admitted in the trial of a criminal cause."

See, to the same effect, State v. Brooks, 220 Mo. 83, 119 S.W. 353; State v. Wilson, 223 Mo. 188, 122 S.W. 671, and State v. Ellis, 294 Mo. 282, 242 S.W. 955.

In State v. Hart, 237 S.W. 477, Judge White, then Commissioner of this court, said: "A confession, in order to be admissible, must be entirely voluntary. The fact that the accused is under arrest at the time he makes the confession is not sufficient to exclude his statement as being other than entirely voluntary. In order to exclude the confession on the ground that it is not voluntary, it must affirmatively appear that some inducement to confess was held out to the accused by or in the presence of some one having authority. The confession is presumed to be voluntary until the contrary appears. [Citing cases.] And it does not matter that the confession was elicited through questions of the officer or person in authority, and that such questions assumed the guilt of the defendant. [Citing cases.] The test is whether the statement was entirely voluntary. [State v. Smith, 222 S.W. l. c. 458, and cases cited.] Where the confession is induced by some influence, like a hope of clemency, or a fear of punishment, or violence from the officers or a mob, it is inadmissible."

This question was considered at great length in State v. Thomas, 250 Mo. 212, 157 S.W. 330, where Judge Brown quoted approvingly from Underhill on Criminal Evidence, Section 140, as follows:

"The practice of eliciting a confession by putting question after question to the accused is clearly not conducive to the procurement of truth, and the mode in which the confession was elicited may always be considered by the jury to determine whether they shall believe it.

"This is well illustrated by the methods employed by police officers and others in practicing upon the accused after his arrest what is known in police circles as the 'third degree.' This usually consists in...