The State v. Powell

• Decision Date: 26 May 1914
• Citation: 167 S.W. 559,258 Mo. 239
• Parties: THE STATE v. FEATHERSTONE POWELL, Appellant
• Court: Missouri Supreme Court

167 S.W. 559

258 Mo. 239

THE STATE v. FEATHERSTONE POWELL, Appellant

Supreme Court of Missouri, Second Division

May 26, 1914

Appeal from Jackson Criminal Court. -- Hon. Ralph Latshaw, Judge.

Reversed and remanded.

Griffin & Orr and Horace S. Kimbrell for appellant.

(1) Considering the fact that defendant was a colored man twenty-three years old, his mental qualifications, his surroundings, and the fact that nine police officers were "sweating" him for nearly twelve hours, the court erred in admitting the purported confession in evidence especially after it appeared that the police officers had told defendant 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. (2) The court erred in excluding the testimony of witnesses Halsey Powell, White, Ousler and Gaskill. State v. McKenzie, 144 Mo. 40; State v Blodgett, 92 P. 820; Janes v. People, 99 P. 325; Young v. State, 68 Ala. 569; Commonwealth v. Howe, 9 Gray (Mass.), 110; Commonwealth v. Howe, 2 Allen (Mass.), 153; People v. Fox, 50 Hun. 604, 3 N.Y.S. 359; Wharton on Criminal Evidence, p. 1299; 3 Ency. Evd., 353; 12 Cyc. 484.

John T. Barker, Attorney-General, and William M. Fitch, Assistant Attorney-General, for the State.

(1) Confessions will be incompetent if inducements are held out by some officer or person in authority having defendant in custody, or by one who then has the defendant in actual custody. State v. Hopkirk, 84 Mo. 278; State v. Jones, 171 Mo. 401; State v. Hunter, 181 Mo. 316; State v. Hagan, 54 Mo. 192; State v. Jones, 54 Mo. 478. (2) A statement to the accused by the person having him in charge to the effect that it will be better for him to tell the truth about the matter, will not annul the confession. Hawkins v. State, 7 Mo. 190; State v. Patterson, 73 Mo. 695; State v. White, 17 Kan. 487; State v. Kornstett, 62 Kan. 221; State v. Anderson, 96 Mo. 241. (3) The fact that the defendant is in charge of an officer is no objection to a confession, if no threats were made and no promises were given defendant. State v. Wooley, 215 Mo. 683; State v. Simon, 50 Mo. 370; State v. Carlisle, 57 Mo. 102; State v. Shackleford, 148 Mo. 493; State v. Vaughn, 152 Mo. 73; State v. Barrington, 198 Mo. 23; State v. Armstrong, 203 Mo. 554; State v. Stebbins, 188 Mo. 387; State v. Church, 199 Mo. 605; State v. Brooks, 220 Mo. 74; State v. Wilson, 223 Mo. 173; State v. Green, 229 Mo. 642. (4) Confessions, elicited by questions put to the prisoner by an officer or by a private person, are admissible in evidence against the prisoner. State v. Stebbins, 188 Mo. 387; State v. Barrington, 198 Mo. 23; Com. v. Curtis, 97 Mass. 578. Such is the English rule: Rex v. Unchurch, 1 Moody, C. C. 465; Rex v. Wild, 1 Moody, C. C. 452; Rex v. Thornton, 1 Moody, C. C. 27. It is no objection that the confession is made in response to questions which assume the guilt of the defendant. State v. Barrington, 198 Mo. 23; Rex v. Thornton, 1 Moody, C. C. 27. (5) In the absence of actual promises or threats, mere threatening circumstances will not exclude the confession. State v. Armstrong, 167 Mo. 257; Rice v. State, 47 Ala. 38; State v. Ingram, 16 Kan. 14. (6) If promises or threats are made by or in the presence of one in authority or having control over the prisoner, and were such as might influence him, it is presumed that the confession afterwards made was induced by such threats or promises, unless it shall appear that their influence was totally done away with before the confession was made. State v. Jones, 54 Mo. 478; State v. Jones, 171 Mo. 401; State v. Guild, 10 N. J. L. 163. (7) Confessions secured by the following statements are held inadmissible, as against the defendant making them, viz.: "It will be better for you to confess," or "worse if you do not confess." Couley v. State, 12 Mo. 462; State v. Freeman, 12 Ind. 100. "Tell me where the things are, and I will be favorable to you." Rex v. Hearn, Carrington & Marsh, 109. "You had better tell me all you know." Rex v. Kingston, 4 Carrington & Payne, 387. "I should be obliged to you if you could tell us all you know about it; if you will not, of course we can do nothing." Rex v. Partridge, 7 Carrington & Payne, 551. "Anything you can say in your defense, we shall be ready to hear." Rex v. Morton, 2 Moody & Rob. 514. (8) Statements have been held to be competent as against the person making same, (a) even though he was not warned that they would be so used. State v. Church, 199 Mo. 605; Rex v. Richards, 5 Char. & Payne, 318. (b) Even though they were secured by artifice. State v. Phelps, 74 Mo. 128; State v. Brooks, 92 Mo. 542. (c) And where such statements are secured by representing to him that his accomplices are in custody, or that they have divulged the crime, and yet the statements be competent as against the defendant making them. State v. Jones, 54 Mo. 478; State v. Phelps, 74 Mo. 128. (9) If threats or promises, however slight, are used to induce the confession, then the confession cannot be used against the defendant making same. State v. Brooks, 220 Mo. 74. (10) The presumption is that confessions have been freely made until the contrary appears. State v. Armstrong, 203 Mo. 559; State v. Meyers, 99 Mo. 119; People v. Barker, 60 Mich. 295; Com. v. Culver, 126 Mass. 464; 1 Chitty's Crim. Law, 571; Roscoe's Crim. Ev., 43; 3 Rice, Crim. Ev., sec. 309.

BROWN, J. Walker, P. J., concurs; Faris, J., not sitting.

OPINION

BROWN, J.

Defendant was convicted of murder in the first degree, and appeals from a judgment fixing his punishment at imprisonment for life.

The evidence on the part of the State tends to prove a conspiracy between defendant and three or more other negroes to rob the Missouri Pacific freight office at Kansas City, Missouri, on December 1, 1911. In robbing that office one Albert Underwood, a cashier therein, was murdered. The evidence further tends to prove that Underwood was killed by one Arthur Brown, and that while defendant was not present he was in or near the building where the tragedy occurred, and that he aided and abetted Arthur Brown in the commission of said crime.

At the trial a signed confession of defendant Powell was admitted over his objections, to which ruling exceptions were duly saved. The admission of this alleged confession, and the refusal of the trial court to permit the defendant to impeach the same by proving that parts of it were untrue, constitute the alleged errors upon which the defendant relies for reversal.

The written confession of defendant introduced in evidence reads as follows:

Statement taken in the office of Captain E. B. Stone commanding.

State of Missouri, County of Jackson, ss.

Featherstone Powell, of lawful age, being first duly sworn, upon his oath deposeth and says:

I am twenty-four years old. I was born in Jackson, Tennessee. I live at seven hundred and twenty-six New Jersey Avenue, Kansas City, Kansas. I work at the Missouri Pacific Railway Company in their freight office, as janitor. Thursday, November 30th, as I was passing State line on my way home I met Arthur Brown and Duke at the State line. They wanted to know where I was going and I said I was on my way home. They wanted to know what chance to hold up cashier's department at Missouri Pacific freight house. I told them that they had better know what they were doing, cause it would make it hard on me, as I am janitor in the building and have been there for the last seven years. After this conversation I went home.

The next time I saw Arthur Brown and this man Duke was on Friday afternoon. They were up in the Missouri Pacific local office December 1st, about 5:40 p. m. I was standing in the front of the toilet room door when Arthur Brown came to me and said we are going to pull that job off now that we were talking about the other day. Arthur Brown and Duke had a revolver apiece. Shortly after, Halsey Powell, my brother, came back to the toilet room and when he got to us Arthur Brown and this man Duke says they were going to pull off that job to-night and Halsey said that if you go by mother's to-night, I will give you some of the money. These three men went downstairs immediately after that. Before leaving me to go downstairs they told me to get down in front and as I knew the special agents of the Missouri Pacific I was to watch for them and if I saw any of them coming I was immediately to give the signal. I then took a bucket and broom from the office and came downstairs and went out on the sidewalk at the southeast corner of the building. I taken up my position there to watch for Missouri Pacific special agents just outside of the front door of the office. My brother, Halsey Powell, and my brother, Cottrel Powell, were both standing at this door. Immediately inside of the office door were the following men known to me as Ossie Brown, Arthur Brown, and the man they called Duke. I was directly outside with the bucket and broom and when I saw everything was clear I told them all right, and then they entered the cashier's department and shortly afterwards I heard a pistol shot, and immediately after the shot was fired Ossie Brown and Halsey and Cottrel came running out of the front door and I went in the hall. I don't know how Arthur Brown or this man Duke left the office. I then went into the freight house and Albert Underwood was lying inside the freight house on the floor and some of the boys picked him up and lays him in the back room in the cashier's office on the table. Last night when the officers asked me if knew who the parties were that pulled off that job I would not tell them. I did not want them to

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