The State v. Powell
| Decision Date | 30 November 1915 |
| Parties | THE STATE v. FEATHERSTONE POWELL, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. Ralph S. Latshaw, Judge.
Reversed and remanded.
Horace S. Kimbrell and Griffin & Orr for appellant.
(1) On its face said confession shows it was not voluntary. The evidence shows it was not voluntary. Considering the fact that appellant was a colored man, twenty-three years old, a janitor for nine years in one position, his mental qualifications, his surroundings and the fact that nine police officers were sweating him for twelve hours, and the language of the confession itself, the trial court erred in admitting the purported confession in evidence, especially after it appeared that Captain Stone and officer Boullt had told appellant that "it would be best for him to tell the truth" and "it would help him to tell the truth." State v. Brockman, 46 Mo. 566; Underhill on Criminal Evidence, sec. 128; Wharton on Criminal Evidence, p. 1328; State v. Fredericks, 85 Mo. 145; 12 Cyc. 464; State v. Powell, 167 S.W. 559; State v. Thomas, 250 Mo. 211. (2) This court ruled on the former appeal of this case that as a matter of law, on its face the alleged confession was inadmissible in evidence and the trial court erred in permitting the said confession to be again introduced in evidence and read to the jury. The question of its admissibility was res judicata. State v Powell, 167 S.W. 559; 7 Ency. Ev., p. 838; Buchanan v. Smith, 75 Mo. 463; Hoyt v. Green, 33 Mo.App 205; Cole v. Clark, 3 Wis. 292; 3 Van Fleet on Former Adjudication, pp. 1310-1316; Given v. Waggoner, 116 Mo. 143; May v. Crawford, 150 Mo. 564; Holmes v. Royal Loan Assn., 166 Mo.App. 719; Haverstock v. Rogers, 177 Mo.App. 446; Ward v. Haren, 167 S.W. 1065; Roth v. St. Joseph, 167 S.W. 1155.
John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
(1) Admissibility of confession is a question for the court. State v. Patterson, 73 Mo. 605; State v. McKenzie, 144 Mo. 48; State v. Stebbins, 188 Mo. 387; State v. Patterson, 73 Mo. 706; State v. Hattman, 196 Mo. 126; State v. Spaugh, 200 Mo. 596; State v. Hopkirk, 84 Mo. 283; State v. Brennan, 164 Mo. 510; State v. Wooley, 215 Mo. 620; State v. Ruck, 194 Mo. 437; State v. Barrington, 198 Mo. 109; State v. Ammons, 18 L. R. A. (N. S.), 768, and notes, p. 777; State v. Brooks, 220 Mo. 83; State v. Wilson, 223 Mo. 188; State v. Powell, 250 Mo. 216. (2) Cases where the question as to whether the confession was voluntary or involuntary were, or should have been, submitted to the jury: State v. Wooley, 215 Mo. 682; State v. Stebbins, 188 Mo. 396; State v. Jones, 171 Mo. 407; State v. Barrington, 198 Mo. 109; State v. McKenzie, 144 Mo. 44; State v. Thomas, 250 Mo. 210; Ammons v. State, 18 L. R. A. (N. S.) 842. (3) Confessions are presumed to be voluntary until the contrary is shown. State v. Armstrong, 203 Mo. 559; State v. Stebbins, 188 Mo. 397; State v. Jones, 171 Mo. 406; State v. Patterson, 73 Mo. 706; State v. Meyers, 99 Mo. 119; State v. Hattman, 196 Mo. 127; State v. Spaugh, 200 Mo. 597; Ammons v. State, 18 L. R. A. (N. S.) 783. (4) If it be proper to submit to the jury under appropriate instructions the question whether the confession is voluntary or involuntary, then and in that event the finding of the jury concludes the appellate court on disputed facts. State v. Fields, 234 Mo. 627; State v. Sharp, 233 Mo. 269; State v. Cannon, 232 Mo. 205; State v. Sassaman, 214 Mo. 738; State v. Fogg, 206 Mo. 696; State v. Tetrick, 199 Mo. 100; State v. Smith, 190 Mo. 723; State v. Richmond, 186 Mo. 87. (5) That the confession was made to an officer after the arrest does not tend to prove that the confession was improperly obtained. State v. Spaugh, 200 Mo. 597; State v. Brennan, 164 Mo. 510; State v. Barrington, 198 Mo. 109; State v. Wooley, 215 Mo. 682; State v. Church, 199 Mo. 631; State v. Phelps, 74 Mo. 136; State v. McClain, 137 Mo. 316; State v. Northway, 164 Mo. 316; State v. Simon, 50 Mo. 370; State v. Carlisle, 57 Mo. 102; State v. Shackelford, 148 Mo. 493; State v. Vaughn, 152 Mo. 73; State v. Wilson, 223 Mo. 178; State v. Green, 229 Mo. 651; Ammons v. State, 18 L. R. A. (N. S.) 796. (6) A confession made to one not in authority who said to accused that he was satisfied that he was guilty and that it was best to tell the truth is admissible. State v. Keller, 174 S.W. 71. (7) That the questions propounded to the defendant assumed his guilt, or that he was not warned that his statement would be used against him does not render such statement inadmissible. State v. Barrington, 198 Mo. 109; State v. Phelps, 74 Mo. 136; State v. Brooks, 220 Mo. 83; Ammons v. State, 18 L. R. A. (N. S.) 802; State v. Raftery, 252 Mo. 80. (8) It is no objection to the admissibility of a confession that it was made by the accused when he was without counsel, nor that he was not informed that he need not make a statement, or that any statement he might make would be used against him. State v. Gorham, 67 Vt. 365; State v. Patterson, 68 N.C. 292; Com. v. Sturtivant, 117 Mass. 122; State v. Barrington, 198 Mo. 23. (9) That the accused while under arrest was told by the officer in charge that if he was guilty of the offense charged it would be better to tell the truth about it, and thereupon the accused confessed, does not render the confession involuntary. State v. Armstrong, 167 Mo. 269; State v. Patterson, 73 Mo. 707; State v. Hopkirk, 84 Mo. 278; State v. Anderson, 96 Mo. 249; State v. Lipscomb, 160 Mo. 140; State v. Phelps, 74 Mo. 136; State v. Hedgepeth, 125 Mo. 22. Contra: State v. Powell, 250 Mo. 250; State v. Keller, 174 S.W. 72. (10) The admissions of an accused are always admissible in evidence against him when freely and voluntarily made. State v. Shout, 263 Mo. 370; State v. Wilkins, 221 Mo. 444; State v. Green, 220 Mo. 642; State v. Witherspoon, 231 Mo. 706; State v. Roberts, 201 Mo. 702; State v. Atken, 240 Mo. 262; State v. Butler, 258 Mo. 436. (11) The rule of stare decisis, like other rules, has its exceptions, and the rule relaxes when a mistake was made on the former appeal or when it would work injustice and likewise where the facts are different. Mangold v. Bacon, 237 Mo. 511; Davidson v. Mayhew, 169 Mo. 265; Bealy v. Smith, 158 Mo. 521; Fuchs v. St. Louis, 167 Mo. 652. (12) When no direction is given on a former appeal in remanding a cause for a new trial, there is no adjudication made of the facts at issue in the case and the matter at issue remains as it was at first, unhampered by anything which occurred on the former appeal. Kelly v. Thuey, 143 Mo. 437; Baker v. Railroad, 147 Mo. 151; Mangold v. Bacon, 237 Mo. 516.
Defendant, convicted in the criminal court of Jackson County of murder in the first degree, and sentenced to imprisonment in the penitentiary for life, after the usual motions, appeals.
This is the second appeal in this case. [State v. Powell, 258 Mo. 239, 167 S.W. 559.] The facts of the homicide out of which this case arises have already been before us three times. [State v. Bonner, 259 Mo. 342, 168 S.W. 591; State v. Brown, 247 Mo. 715, 153 S.W. 1027; State v. Powell, supra.] The facts proven upon the trial below from which the instant appeal is taken, differ in no material respect from those shown by the record in the other appeal herein, formerly considered by us. The evidence tended to prove that defendant, with one Arthur Brown and George Bonner, whose respective connection with this homicide is to be found detailed in State v. Brown, supra, and State v. Bonner, supra, together with defendant's two brothers, Halsey Powell and Cottrell Powell, in attempting to rob the freight office of the Missouri Pacific Railroad at Kansas City on December 1, 1911, shot and killed Albert Underwood, a cashier in said office. But as all the attending facts and circumstances are fully set forth in the two cases last cited, and as the alleged confession of the defendant, as well as the facts and circumstances under which it was made and upon which his former appeal and the instant one both turn, are to be found set forth in State v. Powell, supra, we need not cumber the books with these facts again. So we content ourselves with referring the curious reader to the three cases above cited for such facts as we may not set out in detail in our discussion of the case.
OPINION.When this case was here before it was reversed and remanded for a new trial on account of two things, which we then ruled constituted reversible error: (a) the refusal to admit testimony offered by defendant in contradiction of the alleged confession, showing the whereabouts of Halsey Powell at the instant of the homicide, and (b) the action of the court in admitting the paper signed by defendant, purporting to be his confession. No other points were discussed, except such as were ancillary to the above two. Our ruling upon the last point, touching the admissibility of the defendant's confession, was thus summed up:
-- State v. Powell, 258 Mo. l. c. 239, 167 S.W. 559.
Notwithstanding this holding the case is back here with the single point mooted that the learned court nisi erred in the instant case in admitting the identical confession which we had already ruled was inadmissible.
We are entirely satisfied with the correctness of our ruling upon this point when the case was here before. It comes to us now absent no vices that it contained then....
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