92 Mo. 542 | Mo. | 1887
Lead Opinion
The defendant was tried in the St. Louis criminal court, at its May term, 1886, on an indictment charging him with murder in the first degree, in killing one Charles Arthur Preller. He was convicted of the crime charged, and has appealed to this court from the judgment.
The record is very voluminous, and defendant’s counsel, with commendable zeal, have assigned a great number of alleged errors in the conduct of the trial, the first of which is that the court erred in overruling defendant’s motion to quash the indictment. The motion to quash was not based on any insufficiency of the indictment, but the court was asked to quash it on the distinct ground that, previous to the finding of the indictment, defendant had been illegally arrested, and was in custody under such arrest when it was found. Conceding (without deciding) that, previous to the finding of the indictment, the forms of law had not been pursued in arresting the defendant, and that such arrest was illegal, it affords no ground for quashing the indictment, and it has been so ruled in the following cases, and we have not been able to find a contrary ruling by any court of last resort: People v. Rowe, 4 Park. Crim. Cas. 253; State v. Brewster, 7 Vt. 118; United States v. Lawrence, 13 Blatch. 295; Dow’s case, 18 Pa. St. 37.
In the case last cited, the prisoner had b.een indicted for forgery, and was afterward arrested without legal
The record shows that defendant made a proper application, under section 1, Acts 1885, page 74, for a special jury* and that the court made an order directing the jury commissioner to provide the sheriff with a list of the names of three hundred persons to be summoned; that a list of such names was furnished to the sheriff, and that, of the number, about two hundred were summoned, and the others were returned not served; that a list of the names of those summoned, with a list of the names of those not summoned, was furnished defendant’s counsel; that, when the name of Harry Picker was called, one Harry Vicker answered; when the name •of Ernest Gahl was called, a man responded and said that his name was Ernest Gaier, and when the name of William Richardson was called, a man came forward and stated that his name was William Riches. Defendant’s counsel objected to the list furnished, as not being correct, and objected to proceeding further until a corrected list was furnished. The court overruled the objection, and we think properly.
In case of Rex v. Mellor, 27 L. J. Mag. Cas. 143, where a juror was addressed by. and answered to the wrong name, and was afterwards sworn, upon a case reserved, the court said: “ The mistake is not a mistake of the man, but only of his name. * * * At bottom, the objection is but this — that the officer of the court,
It is also objected that defendant did not have a public trial. This claim is based upon the fact that, during the early stages of empaneling the jury, two men were stationed on the afternoon of one day and the forenoon of the next day at the door of the courtroom, who refused to admit any one into the courtroom except jurors, witnesses, or officers of the court, or those having business in court. It appears that, when this matter was brought to the attention of the court, the court stated that no order had been made stationing men at said door, and announced that any one who wished to come into the courtroom could do so, and made an order that all persons be admitted until all the seats were filled. Had the court either refused to make such an order, or if, after making it, had refused a request on the part of the defendant that the jurors who had been examined touching their qualifications, while the men were stationed at the door, should be reexamined, this might have afforded some ground for the complaint made ; but no such a request was made.
“Publicity does not absolutely forbid all temporary shutting of doors, or render incompetent a witness who cannot be heard by the largest audience, or require a courtroom of dimensions adequate to the accommodation of all desirous of attending a notorious trial. * * * ‘And the requirement is fairly met if, without partiality or favoritism, a reasonable proportion of the public is suffered to attend, notwithstanding that those whose presence would be of no service to the accused, and who would only be drawn thither by a prurient curiosity, are
During the examination of the jurors on their voir dire, jurors Bauer and Bauman, after each of them had stated that he had formed an opinion based on newspaper reports, were asked whether, if sworn as jurors, they could give the accused a fair and impartial trial; this question was objected to on the ground that it was an attempt to have the juror state which way his opinion was, and we think the objection was properly overruled, the object of the question being to ascertain whether the jurors, notwithstanding the opinions they had formed, could try the case impartially. Certain other jurors were, among other things, asked: “Did you, from what you read of the case, form or express any opinion as to whether tjiis man, whose body was found in the trunk at the Southern Hotel, was killed or not ? ” “ Did you form any opinion as to whether C. Arthur Preller was killed or not ? or form any opinion as to whether or not chloroform was administered to him ? or whether, if dead, he was killed intentionally or accidentally?”
It appearing that the jurors to whom these questions were propounded had been fully examined as to the opinions formed by them on the issue to be tried, and as to the guilt or innocence of the accused, and as to their bias and prejudice, we cannot say that it was an unsound exercise of discretion by the trial judge in imposing a limit to .such examination by sustaining objections to the questions asked, especially so in view of the fact that the line of interrogation indicated by the questions put, if permitted, would tend to make such examinations interminable, without any corresponding beneficial results.
The action of the court is also excepted to in sustaining the state’s challenge to one juror who was under the age of twenty-one years ; to another who was over the age of sixty-five years; to another who was not a citizen of the state; to another who was not a resident
No error was committed in sustaining the state’s challenge to juror Rich, who, after stating that he had formed an opinion from what he had read, was ashed whether, notwithstanding the opinion he had formed, he could give the accused a fair and impartial trial, to which he replied: “That is very doubtful.” If this juror had been accepted, we, doubtless, would have been requested to reverse the judgment, on the ground that the court had accepted a juror who not only stated that it was doubtful whether, if accepted, he could give the accused a fair trial, but that it was very doubtful.
Nor was there, under the ruling of this court in the case of State v. Walton, 74 Mo. 271, any error committed in refusing to sustain the challenge of the defendant to jurors Knollman and Comfort, each of whom, in effect, stated that, although he had formed an opinion from reports, which it would require evidence to remove, he could try the case fairly and impartially, on the law and the evidence. “ The rule is well settled that it is the duty of the court to superintend the selection of the jury, in order that it may be composed of fit persons. Large discretion must be confided to the trial court in the performance of this duty. Nor will the action of the court in this behalf be made the subject of review unless some violation of law is involved, or the exercise of a gross and injurious discretion is shown. * * * It is sufficient that the judge is satisfied, from his personal knowledge of the jurors; their answers to other questions ; their reputation for integrity and intelligence, and his judgment in respect to such qualifications will not be reviewed.” Thomp. & Mer, on Juries, sec. 258.
What is approvingly quoted in the case of State v. Walton, supra, may be repeated here, that the issue presented, as to whether an opinion formed by a juror is of such character as necessarily to raise the presumption
On the trial, the court, against defendant’s objection, allowed one J. P. McCullough to testify as to a confession of defendant. It is insisted that error was committed in receiving this evidence, because the confession was not voluntary, and because the witness by whom it was proposed to prove it was incompetent, for the reason that said McCullough, who was a detective, with the connivance of the circuit attorney and his assistant, had himself arrested on a fictitious charge of forgery, under the name of Dingfelder; that he waived preliminary examination, and was indicted by the grand jury on the evidence of witnesses testifying before them to facts supposed by them to be true, but known to all who connived at his arrest to be false; that to this indictment he pleaded not guilty, and was confined under the charge forty-seven days in jail, with a view of obtaining a confession from defendant, and that it was during this confinement that the confession received in evidence was made.
It appears from the record that Dingfelder, while-being thus confined, ingratiated himself in the confidence of the defendant, informed him of the charge on which he was confined, and stated he was connected with a gang of forgers and lawless men; that, in the interview had between them, defendant said: “If I could get a witness to testify to anything like that, I could beat the-
It is further insisted that, owing to the methods resorted to to obtain the confession, it was error to receive it in evidence. While the officers whose duty it was to prosecute criminal offences, may, in their anxiety to ferret out the circumstances concerning the death of Preller, have overstepped the bounds of propriety in the course pursued by them, which is not to be commended, but condemned, it affords no legal reason for rejecting the evidence and not letting it go to the jury whose peculiar province it was to pass upon the credibility of the witness who detailed the confession and give to it such weight as, under the circumstances, they believed it entitled to. It was for the court to say what evidence should be received and for the jury to say what weight it should have when received.
While the fact that artifice and deceit were resorted
It appears from the record that, on Saturday, the twenty-ninth of May, during the progress of the trial, counsel for defendant called the attention of the court to the fact that the state had, without notice to defendant, caused the body of Preller to be exhumed and requested the prosecution that, some time during the day, the defence be allowed to use this evidence and to have experts examine the parts of the body. In response to this request, the state attorney said in effect that the body of Preller had been exhumed, and the parts removed from it had been entrusted to eminent surgeons for examination, and that the state expected to offer the result of that examination in evidence by way of rebuttal, and for that reason declined compliance with the request, whereupon, the court used the following language: “Of course, the court knows nothing of this matter, and I can only say the way it strikes the court now. Of course, if such testimony as that is presented In rebuttal * * * the court will give you all the facilities in reason that it can, in order to get experts, if you desire to examine and look into it. * * * At
Mr. Pauntleroy, of defendant’s counsel, then said in substance that the law required that such examination could only be made by the state on due notice to the defendant. In reply to which the court said : “I will hear you on that when you produce your authorities. Produce your authorities and I will hear you now. When this matter comes up I will pass upon it. It would not be proper for me to comment on anything, because there is nothing before me.”
Mr. Pauntleroy then said: ‘ ‘ The state declines that request — refuses it. Now we ask that the court make an order that we be permitted by experts to examine the parts.” In response to which the court said : “I cannot do so at present. I don’t know what I may do on Monday.” To this action defendant excepted, and announced that the defence rested.
There is nothing in what is above quoted indicating any other purpose on the part of the court than a desire to be informed on the question of law raised by counsel as to the necessity of notice of the exhumation and examination of Preller’s body, and authorities upon the point not being produced, no error was committed by the court in putting the matter over till Monday, at which time defendant again raised the point as to necessity of notice, when the state offered in rebuttal the result of the expert examination of the parts removed from the body, which was properly overruled, on the authority of State v. Leabo, 89 Mo. 247, where it is expressly held that the evidence of medical experts, as tó the condition in which they found the body of the deceased on a second post-mortem examination, is not
After the introduction of this evidence in rebuttal and the state had closed its case, the following colloquy between counsel occurred, as shown by the bill of exceptions:
Mr. Pauntleroy: “We would now ask that we be permitted, through experts, to examine these parts that have been referred to in this matter.”
Mr. Clover: “Well, who do you want to submit them to?”
Mr. Pauntleroy: “To Dr. Bauer and others.”
Mr. Clover : “I want to know to whom they are to be entrusted, because I have that evidence. I want to know to whom they are to be entrusted. We want them to furnish the names.”
Mr. Pauntleroy: “Well, we name Dr. Bauer for one.”.
Mr. Clover: “I am willing to submit them to any reputable physician in the city of St. Louis, but I' don’t wish to "submit them to Dr. Bauer ; not because I question his reputability, but because he is assisting thedefence and has suggested questions to the counsel when medical experts were on the stand ; but if they say they will submit them to Dr. Gregory, President of the American Association of Physicians and Surgeons, to-Dr. Mudd, or to Dr. Timelake, or any other physician, they can have ample opportunity to do it.”
Mr. Pauntleroy: “ Without furnishing the names of any physicians, we ask that they submit these parts to the inspection of Dr. Bauer and such other reputable-physicians as we may see fit.”
It was then remarked by the court: “There is the-circuit attorney. They are not before the court and have never been before the court.”
Mr. Fauntleroy: “ I understand that that request-is to be complied with.”
Whereupon Mr. Fauntleroy replied: “If the state, your honor, takes that attitude, we close the case here.” And both sides rested.
The question as to whether error was committed in what was said and done as above detailed, is not before us for determination, inasmuch as the record does not show that any exception was taken or saved at the time. State v. Burk, 89 Mo. 635; State v. Ray, 53 Mo. 345: State v. Lett, 85 Mo. 52.
It is further insisted that error was committed in allowing defendant to be cross-examined as to matters not referred to by him in his examination in chief. The examination in chief of defendant covers about eighty pages of legal-cap paper in type-writing, and his cross-examination, including controversies between counsel during the continuance, was quite as extensive, and it would serve no useful purpose to incorporate in this opinion, in minute detail, the various matters testified to by defendant in his direct and cross-examination, and we feel justified, after thorough investigation, in simply announcing the conclusions arrived at, and the principles of law relied upon, in reaching the conclusion. It is provided by statute (R. S., sec. 1918), when a defendant in a criminal case offers himself as a witness, that “he shall be liable to cross-examination as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness.” In the case of State v. Palmer, 88 Mo. 568, it is held that, while a defendant can only be cross-examined as to the matters referred to in his examination in chief, that the same rules and tests, with that exception applicable to the contradiction and impeachment of other witnesses, also apply to him, and in the case of State v. Beaucleigh, ante p. 490, it is held that, even though a defendant may be cross-examined as to a matter not referred to
As examples of the objections made to the cross-examination, the following may be referred to: Defendant was asked: “What reason had you for telling Mr. Warren that your father was dead, if he was alive ? Did you tell Mr. Warren that you expected, on your father’s death, to inherit a considerable property? Didn’t you, in your early conversations with Mr. Preller, in the early part of your acquaintance, tell him that you had friends in London?” Objections to these questions were overruled, and, we think, properly. In his direct examination, he had testified to conversations with Preller, and had also testified that his father was living at the time of the trial, and also that he had conversations with Warren on board the ship which brought him to this country, and conversations and correspondence after he came. On his cross-examination, defendant was asked whether the following paper, which the state had put in evidence in their case in chief, was in his handwriting, viz.:
“The Royal College of Surgeons, London, incorporated A. D. 1416. Diploma: Be it remembered, That, in the day and year hereunder written, Walter Horace Lennox-Maxwell, of the city of London, was duly admitted to be a member of the Royal College of Surgeons, London, it having been first certified, under the
“ Given under my hand, this 14th day of May, in the year of our Lord.”
The question was objected to and the objection overruled, and the paper having been read to the jury by the state in its case in chief, was, over the defendant’s objection, again read, for the purpose of examining defendant in relation thereto, and he was asked if it was a diploma of the Royal College of Surgery, London, and when he obtained possession of it, and for what purpose he wrote it; all of which questions were objected to. The defendant, in his direct examination, had stated that he had never had a diploma; had never been licensed as a physician, and had never represented himself to be a regular physician. In view of these statements, it was competent to inquire of him if he had not, either orally or in writing, represented himself to be a member of the Royal College of Surgeons, London.
The second instruction given by the court is objected to on several grounds, the first of which is that as the third count of the indictment is defective, in not charging that defendant did deprive Charles Arthur Preller of life, that the court committed error by supplying this omission in the instruction, telling the jury that said count did charge the defendant with depriving said Preller of life, and in further telling them that if they believed defendant did kill and murder Charles Arthur Preller, in manner and form charged in either count of the indictment, they should find him guilty of murder in the first degree. The third count of the indictment is defective in the particular specified in the objection, and but for the ruling of this court, in the cases of State v. Hollenscheit, 61 Mo. 302; State v. Man, 69 Mo. 317;
In the first case above cited, it is held that where an indictment contains more than one count charging only a single offence, and of the same degree, merely varying the statement as to the crime charged to meet the evidence, the court need not charge separately as to each count, but may, in one instruction, refer to them all, and tell the jury to render a verdict of guilty, if they find the accused committed the crime in the manner charged in the indictment; and in the case of State v. Blan, supra, where the indictment contained five counts for murder in the first degree, three of which were bad and two good, the judgment of conviction was upheld, although the court had given an instruction to the effect that if the jury found that the accused feloniously, wilfully, deliberately, premeditatedly and with malice aforethought killed the deceased in some one of the modes described in the indictment, they would find him guilty of murder in the first degree. In the cases of State v. McDonald and State v. Miller, supra, it is held that a general finding of guilty, on an indictment containing several counts relating to the same offence, is sufficient without specifying the count on which the verdict is based.
In the instruction complained of, the court told the jury that if they believed from the evidence that the defendant did “kill and murder Charles Arthur Preller, in the manner and form charged in either of the counts of the indictment, they should find the defendant guilty of murder in the first degree.” It is insisted that this instruction is erroneous, because the court did not insert, before the words “kill and murder,” the words “wilfully, deliberately, premeditatedly, and with malice aforethought.” This point is not well taken, inasmuch as the court, in a previous part of the instructions, had fully explained to the jury that the indictment not only set forth the means and modes used by defendant in
Neither is there any force in the objections to the following instruction: “Plight raises the presumption of guilt, and if the jury believe and find, from the evidence, that the defendant, after the commission of the homicide alleged in the indictment, fled from the state of Missouri, and tried to avoid arrest and trial for said offence, they may take this fact into consideration, in determining his guilt or innocence. The court instructs the jury that, although they may believe and find from the evidence, that the defendant fled from the state of Missouri, after the commission of the homicide alleged in this indictment, yet, if they believe and find, from the evidence, that he did not flee from a motive to avoid arrest and trial on this charge, they should not consider it as an element in arriving at their verdict as to defendant’s guilt or innocence of this charge.”
The defendant, on his examination, on being asked what he did after he found that Preller was dead, answered as follows: “My first impulse was to communicate with the authorities. The next thought that struck me was, ‘ well, here I am a stranger in a strange city ; I know no one here ’; I was totally ignorant of the fact that I might testify in my own behalf. I was ignorant that the same rule of law did not prevail here that prevails in England, that a defendant cannot testify in his own
All the instructions given appear in the report of the case, and as to those of them objected to and not specially noticed in this opinion, it may be said that they are such as have been repeatedly approved by this court except the last one in the series, and of this it may be said that it was neither misleading nor confusing, but, on the contrary, emphasized the fact that the jury in reaching a verdict should be guided alone by the evidence and instructions in the case. While the instruction as to robbery is subject to verbal criticism it could not have misled the jury when applied to the facts in evidence, it appearing from defendant’s own evidence that he took Preller’s money after he had brought about his death.
The following authorities establish the proposition that an extra-judicial confession, uncorroborated and without proof aliunde that the crime had been committed, will not justify a conviction. Robinson v. State, 12 Mo. 592; State v. Scott, 39 Mo. 424; State v. German, 54 Mo. 526; State v. Patterson, 78 Mo. 695. In the first case above cited, there was no proof of the corpus delicti, and the judgment was reversed because of the court refusing to give an instruction asked by defendant, to the effect that an extra-judicial confession was not sufficient to convict. unless corroborated and the crime proved to have been committed by other evidence. In the case before us, there is corroborative evidence, and also other evidence proving the corpus delicti. We do not understand that counsel dispute this, but to insist that it was the duty of the court, though not requested, as in the case of Robinson v. State, supra, to give such an instruction as was refused in that case, and that its failure to do so is reversible error, and in
It is also insisted that the judgment should be fe
It appears tkat counsel for tke state kad argued tkat tke depositions as to tke good ckaracter of tke defendant were of no value by reason of tkeir negative ckaracter, and tkat, in replying to tkis, Mr. Pauntleroy, of counsel for defendant, offered to read to tke jury certain passages from 68 Missouri Reports, page 27, to tke effect tkat tke réputation of a person wkose ckaracter is in question
It is also insisted that error was committed in allowing the state attorney to say, in his closing argument: “If the defence had acted honestly, uprightly, and fairly with the state, the state would not have presented testimony that it has done, being in ignorance of' the defence they were to establish.” It is apparent, from the record before us, that counsel for defendant', had indulged in denunciation of the attorneys for the-state, in the management of their side of the case, and the judge trying the case, having heard what was said,, was in a better position than we are to determine-whether he should interfere, and to what extent, in moderating remarks made in response to assaults provoking them. In closing this branch of the case, it may be said that, until within a recent period, this court was; never called upon to interfere, and asked to reverse a. judgment, for such causes as we have been last considering, and then the practice is one, the growth of which ought not to be encouraged.
Another ground alleged in the motion for new trial is that Coulahan, one of the jurors who tried the case, concealed, in his voir dire examination, the fact alleged in the motion that he had previously formed and expressed an opinion hostile to the defendant, which he did not disclose on such examination. One Meilert, in his affidavit, stated that, in August, 1885, in the office of Justice CroMn, he had heard Coulahan say, “that the
It also appears that defendant, having filed his motion for new trial within the time prescribed by law, thereafter, and fourteen days after the rendition of the verdict, asked leave of the court to file what is denominated a supplemental motion for new trial, which the court refused, and this is also assigned for error. It is provided by section 1967 that “motions for a new trial shall be filed before judgment and within four days after the return of the verdict.” This statute is mandatory, and, according to the uniform ruling of this court since the case of Allen v. Brown, 5 Mo. 323, a refusal to grant a new trial on a motion made more than four days after the trial is not error, and it has been further held that, unless it affirmatively appears by the record that the motion for a new trial was filed within four days after trial, this court will not consider the question it presents. Welsh v. St. Louis, 73 Mo. 71; Moran v. January, 52 Mo. 523, and cas. cit. In the case of State v. Marshall, 36 Mo. 400, where defendant was convicted of murder in the first degree, it is said: “No excep-
tions will be noticed here where no motion for a new trial has been made, or what is the same thing, where none is made and filed within the time prescribed by law.” If authority is to be found putting it in the discretion of the court to authorize the filing of a supplemental motion for new trial, in view of the time the court gave defendant to make proof of the matter set up in the motion, which was filed in time, and in view of the length of time consumed in the trial, we would be unwilling to say that the court exercised its discretion arbitrarily in refusing such an application.
It is sufficient to say of other errors assigned, though examined and considered, that they will not be specifi-’ cally noticed, because they rest on no better foundation
Dissenting Opinion
Dissenting. — Unable to agree to a portion of the foregoing opinion, I will briefly give the reasons for my dissent:
I. My first point for discussion will be the failure of the trial court to give an instruction relative to the alleged extra-judicial confession of the defendant. At an early day in this state, when discussing the duty of a court in this regard, it was said, “it is the duty of the judge of a criminal court, as well as any other court of record, to instruct the jury in all the law arising in the case.” Hardy v. State, 7 Mo. 608. This was in 1842. In 1845, when regulating the practice and proceedings in-criminal cases, the legislature saw fit to enact the following : “The court shall not, on the trial of the issue on any indictment, sum up or comment upon the evidence, or charge the jury as to matters of fact, unless requested so to do by the prosecuting attorney, and the defendant, or his counsel, but the court may instruct the jury on any point of law arising in the cause, which instruction shall be in writing, unless the prosecuting attorney and defendant consent to its being given orally.” R. S., 1845, p. 882, sec. 28. This section of the statute has remained on the statute book ever since. 2 R. S., 1855, p. 1195, sec. 81; G. S., 1865, p. 851, sec. 30; R. S., 1879,. sec. 1920.
In Couley v. State, 12 Mo. 462, the judgment was reversed. The court refused to give proper instructions asked by defendant in relation to extra-judicial confessions, and gave, of its own motion, improper instructions
This was in 1849, and no allusion was made to the statute in such cases already referred to. In State v. Mathews, 20 Mo. 55, it was ruled : “It was the duty of the court to instruct the jury as to the law of the case. The instructions asked by the defendant’s counsel may have been objectionable in their phraseology, but the court should not, therefore, have neglected to give such as the law of the case required.” This was in' 1854, and no allusion is made to the statute, and the opinion was written by Judge Ryland, who wrote the opinion in Couley v. State, supra, and had also written the opinion in State v. Clump, 16 Mo. 385, cited in the majority opinion. In State v. Schoenwald, 31 Mo. 147, the case of Hardy v. State, supra, was cited, with approval, and the doctrine therein stated was reiterated in express terms, but still no allusion was made to the statute. This was in 1860, and the opinion was written by Judge Scott, that sturdy defender of right and invincible hater of wrong, who was on the bench with Ryland, J., when the case of State v. Mathews, supra, was decided.
In the section already quoted I construe the words, “may instruct,” etc., as meaning “ shall instruct,” etc., as this is the invariable rule respecting matters which relate to powers bestowed on public officers, that such powers shall be exercised in a manner promotive of justice and the public good. And what more promotive of such ends than that the juries of this state in criminal cases, charged with the issues of life and death, be properly instructed in all the law of the case ? In State v. Jones, 61 Mo. 232, the cases cited in 7, 20, and 31 Mo., supra, were cited with approval, and it was there laid
In State v. Stonum, 62 Mo. 596, when no instructions were asked by defendant, Wagner, J., said: “In State v. Mathews, 20 Mo. 55, it was expressly adjudged that it is the duty of the court in all criminal cases to instruct the jury as to the law; that if the instructions offered are objectionable, the court should proceed to give such as the law requires.” Aside from this being binding authority, we think it is sustained by good reason. Juries should not be allowed to guess at the law in such cases. The court should instruct them as to their duties, and as to the law in the case. This was in 1876.
In State v. Branstetter, 65 Mo. 149, the cases mentioned in 20, 61, 62 Mo., supra, are cited with approval, and a quotation made from the case last referred to, and the law, as already declared, again laid down. This was in 1877. In State v. Kilgore, 70 Mo. 546, the Branstetter case was so qualified as to exclude “ collateral matters.” This was in 1879. The legislature of that year, having doubtless noticed the occasional aberrations from the true path of adjudication, as established in 7, 20, 31, 61, 62 and 65 Mo., supra, enacted an entirely new section, as follows: “The court must instruct the jury, in writing, upon all questions of law, arising in the case, which are necessary for their information in giving their verdict.” R. S., 1879, sec. 1908. This section, it will be observed, uses substantially the same language used by Judge Tompkins in Hardy v. State, supra, already quoted. The language of Judge Tompkins is : “It is the duty of tlie judge of the criminal court to instruct the j ury * * in all the law arising in the case.” The language of the statute is : “ Courts must instruct the jury
If we are to obey this section, I cannot see how we are to escape our duty in condemning as erroneous the failure of the trial court to give an instruction in relation to the insufficiency of extra-judicial confessions alone to warrant a conviction. The law is well settled in this country that, when uncorroborated, such confessions are wholly insufficient. State v. Patterson, 73 Mo. 695; Wharton’s Crim. Evid., sec. 633. Aliunde such confessions, there must be proof of the corpus delicti, and this involves two points to be proved. First, the criminal act charged; second, the defendant’s agency in the production of the act. State v. Dickson, 78 Mo. 438; Whar. Crim. Evid., sec. 325; 1 Whar. Crim. Law, sec. 311. Is it necessary to put the query: Did the jury need any information on this branch of the criminal law % If the question being discussed was one of law, arising in the case, and “ necessary for their information in giving their verdict,” the instruction on that question of law was imperatively demanded by the express terms of the statute. So that the only inquiry to be made is, is the statute to be obeyed % Its meaning, whether we consider the plain words in which that meaning is couched, or whether the statutory or judicial history aforesaid, cannot be gainsaid, and the legislature must be presumed conversant with that history. Moreover, as was well known, that section was drawn either by, or else at the suggestion of an author of a work on the subject of criminal law, and then a nisi prius judge, who was in attendance at the revising session of the legislature of 1879, at their request. Oddly enough, this statute has never been alluded to in opinions heretofore rendered. Nor is it even so much as referred to in the majority opinion, though cited in the brief of
But- aside from the statute, this court, in a number of decisions in addition, to those named, has repeatedly affirmed it to be the duty of the trial court to instruct the jury in criminal cases, covering the whole law arising on the facts, whether such instructions be asked or not, and surely if it be the duty of the court to instruct as to the law of the case, that cannot be abdicated by reason of any failure of asking that such duty be performed. Partial and half-way instructions to a jury may frequently, and generally will, result in misinforming and misleading them as to their duty in giving their verdict, as much so as instructions wholly erroneous, or failing altogether to instruct them. I now give some cases in which this court, in more recent instances, has reiterated the doctrine of the duty of the trial court in this regard: Thus, in State v. Banks, 73 Mo. 592, this court said: “It is the duty of the trial court, in criminal cases, as we have repeatedly ruled, to give correct instructions,, covering the whole law arising on the facts, whether such instructions be asked or not.” In the later case of State v. Palmer, 88 Mo. 568, the same doctrine was reiterated in briefer terms. In consequence of the' foregoing, the counsel of defendant were entitled, as of right, to rely, in all confidence, on both the rulings of this court, so frequently reiterated, as well as on the express mandate of the law, that “the court must instruct the jury, in writing,’ upon all questions of la w arising in the case, which -are necessary for their information in.
II. My second point is this : The alleged extrajudicial confession of the defendant was proved by Dingfelder. When the report of this case appears on the face of our reports., I desire that the substance of the whole transaction which led to his sham arrest, indictment, and incarceration, on false testimony and on a false charge, in order to obtain a confession from the defendant, together with all the means employed to that ■end, as well as the testimony as to the alleged confession, be preserved. It is no objection to the confession, of course, if obtained by falsehood, deception, trick, or artifice, and I have nothing to say on that point; but I do have this to say: that, considering the circumstances in which that confession is said to have been obtained, the witness, Dingfelder, occupied, before the law, as unfavorable an attitude as does an accomplice, who, by his testimony, slips the halter from his own neck and places that halter about the neck of another alleged participant in the crime. In that case, the instinct of self-preservation, the first law of nature, relieves, to some extent, the infamy of the degradation, and palliates, in some sense, the baseness of the betrayal. In this case, there is no such alleviating circumstance, nor palliating feature ; the motive which prompts is like the reward it seeks, and both are unfathomable in their baseness. The juries are invariably [instructed to receive the testimony of an accomplice with great caution, and not to believe him unless corroborated from an independent source to the extent of establishing the guilt of the defendant on trial. Why is this done ? Because the testimony comes from
Rehearing
On motion for rehearing.
A motion for rehearing has been • filed in this case, and among other reasons assigned for granting the prayer of the motion, it is insisted that the ruling made in the decision rendered, to the effect that the omission or failure of the court, although not requested so to do, to instruct the jury that an extra-judicial confession, unless corroborated by other evidence as to the corpus delicti, would not justify nor authorize a conviction, was not reversible error. Is it in conflict with section 1908, Revised Statutes % This section appears for the first time in the revision of 1879 as a new section, and is as follows :
“ Section 1908. Order of trial. —The jury being, impaneled and sworn, the trial may proceed in the following order : First. The prosecuting attorney must
This section of our statute was borrowed from an Indiana statute, which was on the statute books of that state, and which had received judicial construction in the case of Rollins v. The State, 62 Ind. 46, when it was incorporated in the revision of 1879. The Indiana statute provides {vide R. S., Ind. 1881, p. 340) that, “in charging the jury, he, the court, must state to them all matters of law necessary for their information in giving their verdict.” It will be seen that the language employed in said section 1908, Revised Statutes, 1879, is identical in substance with the Indiana statute. It is as follows : “ The court must instruct the jury upon all questions of law arising in the case which are necessary for their information in giving their verdict.”
In further proof that said section 1908 was borrowed from the Indiana statute, it will be found on comparison, which comparison we have made, that the first, second, and third clauses of said section, as well as what precedes those clauses, are verbatim copies of the first, second, and third clauses of the .Indiana statute, as well as what precedes those clauses in the statute of said state.
In construing this statute it is distinctly held by the
It is a principle so well established as not to require the citation of authorities to support it, that when the legislatures borrow or incorporate in the statutes of this state the statute of another state, Which has been judicially construed by the courts of such state, that the construction thus put upon it will be adopted and followed by the courts of this state.
Viewed in the light of what is above said, the point made by counsel that the judgment should be reversed, because of the failure or omission of the trial court to instruct the jury, although no request to that effect was made, that they could not convict upon the extra-judicial confession of defendant alone, but must look for corroboration as to the corpus delicti in the other evidence, is not well taken. The other points relied upon in the motion for rehearing, it is unnecessary to notice, further than to say that they were considered in the opinion delivered, and ruled upon adversely to the views of defendant’s counsel.
The motion for rehearing is overruled,
Dissenting Opinion
Dissenting. — I continue to dissent:
I. Hemmed in by the array of authorities I have cited, beginning with 7 Mo., and coming down as late as State v. Palmer, 88 Mo. 568, all announcing the duty of the trial court, in criminal causes, to instruct the jury on all the law arising in the case ; confronted, too, by the express mandate of the statute, as contained in section 1908, that “the court must instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their
“ Sec. 227. The jury, being impaneled and sworn, the trial may proceed in the following order: First. The prosecuting attorney must state the case, axxd offer the evidence in support of the prosecution. Second. The defendant or his counsel may then state his defence, and offer evidence in support thereof. Third. The parties may then respectively offer rebutting testimony only, unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their -original case. Fourth. The court must charge the jury. Fifth. Unless the case be submitted without argument, the counsel for the state shall make the opening argument, the counsel for the defendant or defendants shall follow, and the counsel for the state shall conclude the argument.
‘ ‘ Sec. 236. The judge must charge the jury, in writing, and the charge shall be filed among the papers of the cause. In charging the jury, he must state to them all matters of law which are necessary for their information in giving their verdict. If he presents the facts of the case, he must inform the jury that they are exclusive judges of all questions of fact.” Gen. Stat. Kas. 1868, secs. 227, 236, pp. 856, 858 ; Comp. Laws Kas. 1879, secs. 4722, 4731.
It will be observed that section 1908, supra, of our statute is a literal transcript of section 227 of the Kansas statute, except the fourth clause, for which is substituted
“ Sec. 1823. Order of trial. The jury being impaneled and sworn, the trial shall proceed in the following order: First. The prosecuting attorney must state the case of the prosecution, and briefly state the evidence by which he expects to support it; and he shall then offer the evidence in support of the prosecution. Second. The defendant, or his counsel, may then state his defence, and offer evidence in support thereof. Third. The parties may then, respectively, offer rebutting testimony only, unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case. Fourth. When the evidence is concluded, the prosecuting attorney and the defendant, or his counsel, may, by agreement, in open court, submit the case to the court or jury trying the same, without argument. But, if the case be not so submitted without argument, the prosecuting attorney shall have the opening and closing of the argument; but he shall disclose, in the opening, all the points relied on in the case ; and if, in the closing, he refer to any new point or fact not disclosed in the opening, the defendant, or his counsel, shall have the right of replying thereto, which reply shall close the argument in the case. If the prosecuting attorney shall refuse to open the argument, the defendant, or his counsel, may then argue the case. If the defendant or his counsel refuse to argue the case, after the prosecuting attorney has made his opening argument, that shall be the only argument allowed in the case.
By making comparison of these sections, it will be further observed that the first clause of section 1908 is not a verbatim copy of the first clause of the Indiana statute. Let the respective statutes speak for themselves. I have italicized, the sixth clause of section 1823, supra, no reference to which has been made in the opinion of the majority ; and I desire to call special attention to it, as this clause is what creates the essential and striking difference between the statute of Indiana, and the Kansas statute, and our own. And the Indiana statute, as above quoted, is, in substance, the same as it was when the case of Rollins v. State, 62 Ind. 46, was decided. This is shown by the case of Powers v. State, 87 Ind. 144, loc. cit. 153, cited by the majority, so that, as the rulings of the Indiana courts, on which reliance is based by this court, were rulings made on the sixth
And, in further proof that section 1908 was adopted from the statutes of Kansas, and with the judicial rulings of that state as part and parcel thereof, I cite the-case of Craft v. State, 3 Kas. 450, where the Supreme-Court, in passing upon that provision of their criminal code, that the court in charging the jury “must state to them all the matters of law necessary for their information in giving their verdict,” said: “As the provision is plainly imperative, there is no necessity of attempting to sustain it by reason. It was error to omit to do so.” This ruling was made in 1866, long before the ruling made in Rollins v. State, supra, which was not made-until May, 1878, and it is scarcely probable that case was published in time for the legislature of this state to-be apprised of it in the winter of 1879.
But, for the purposes of this argument, I may freely grant that our section 1908 was indeed borrowed from the Indiana statute, and still this concession will not support the ruling of the majority ; on the contrary, the-adoption of the Indiana statute, with the significant omission of the sixth clause of section 1823, which corresponds with the sixth clause of section 103, of the re
Before we had a statute on the subject in this state, it was declared to be “ the duty of the judge of a criminal court to instruct the jury on all the law arising in the case.” Hardy v. State, 7 Mo. 608. But now, where we have two sections of the statute requiring that duty to be performed, as well as many decisions of this court to the same effect, such duty is abolished, unless brought into being and existence by a request that such duty be performed! The result of all which is, that a clause in an Indiana statute, which we have not adopted, is to have the same force and effect as if it had been adopted, the result of all of which is that such unadopted statute is to destroy, overthrow, and annul a statute which we do adopt, as well as over-ride a long line of decisions ; the result of all of which is that, hereafter, in a criminal cause, a judge of a trial court (guided by the precedent here furnished), unless otherwise requested, may sit like a sphinx while the issues of life and death are being passed on before him, and may let the jury “ guess at the law.” State v. Stonum, 62 Mo. 696. Such a ruling shall never receive my sanction; it flies into the face of long-established precedent, nullifies a plainly-worded mandatory statute, and defeats the ends of public jus
II. In a former dissenting opinion I spoke of the testimony of Dingfelder, the assumed name of the detective, Jno. P. McCullough, who testified as to extrajudicial confessions made by the defendant, while the detective was in jail with him. In that opinion, I held that the testimony of the detective should not have gone to the jury without a cautionary instruction as to the credibility to be attached to it, similar to an instruction in relation to the testimony of an accomplice, but upon more mature reflection, I am satisfied that I should have taken a more advanced position. The detective, by a previous arrangement and concert of action between the circuit attorney Clover, the assistant circuit attorney McDonald, and Furlong, forged the name of Morris to a check, was arrested per agreement on a warrant duly issued; indicted for the forgery on testimony which was really false, but believed by the witnesses to be true, and cast into jail where he obtained the alleged confession from the defendant. • I hold now, that such a confession, so obtained by such means, should be altogether rejected. Such a course on the part of the sworn officers of the law cannot be denounced in terms too strong. It was a prostitution of the process of the court; it was a corrupting of the very fountain head of justice ; and the pure administration of the law, and public policy, imperatively demand that evidence so procured should be spurned with infinite loathing whenever offered. It is true that the opinion of the majority condemns, “as gently as any sucking dove,” the method of obtaining the alleged confession, but at the same time accepts the fruits of the nefarious work. This is condemnation in theory, but approval in practice.
III. I was content, on a former occasion, to coniine xnv dissent to the above points, believing them amply
There can be no doubt of the correctness of the ruling of the trial court as to its refusal to permit the authority mentioned to be read to the jury; and in so far as this point is concerned, the opinion of tire majority is correct, but in that opinion no notice whatever is taken of the request of counsel for defendant to be permitted to state the law correctly to the jury. This case, resting as it did upon circumstantial evidence alone, except the alleged extra-judicial confession already commented on, it was of,,the highest importance to the defendant to establish a good character; this had been done by the depositions in question; but under the statement of the counsel for the state that those depositions “did not amount to anything,” and under the refusal of the court to permit counsel for the defendant to correct and contradict this false and damaging statement, made by counsel for the state, it went to the jury as the law on.
In State v. Mahly, 68 Mo. 315, the prosecuting attorney said to the jury: “ ‘ Mahly was on the stand, why did he not tell us how; the child was burned ? It was incumbent on him to show how these things were. Lid he tell us how she was hurt? It was incumbent on him to prove how she was hurt. The defendant was there, master of his own house, and it was incumbent on him to show that he did not inflict the burns.’ Again he said to the jury in that closing argument: ‘The preponderance of testimony was in favor of conviction and against the defendant, and upon such evidence they (the jury) must convict.’ Every one of these declarations was a gross misrepresentation of the law, and such conduct on the part of the prosecuting attorney has so often been condemned by this court, that the hope was indulged that the admonitions given would be heeded. It is not for prosecuting attorneys to declare the law to the jury. That is the duty of the court, and the state’s attorney is as much bound by the law, as declared by the court, as are the jury and the accused. The court declared the law, but the prosecuting attorney, not satisfied with the instructions given by the court, made declarations of law to the jury in conflict with those given by the court, and manifestly and palpably- erroneous. Can we say that the prisoner was not prejudiced by this conduct of the state’s attorney ? If he knew the law and made these declarations to the jury in order to procure a conviction, his conduct was very reprehensible. If he knew no better he should have accepted the law as given by the court. Persons accused of crime must be fairly tried, and when so tried, we shall not interfere to prevent them from being punished j but it is not only
In State v. Kring, 64 Mo. 591, the circuit attorney made the following remarks : “If you wrong the accused, by finding him guilty, that wrong can be righted, because there are two courts above this, in which the accused can have this reversed; the court of appeals and the Supreme Court. If you are not justified in finding this man guilty, it is in their power to rectify any error; while if, on the other hand, you turn the murderer loose in the community, no matter how frail might be the foundation on which you do it, and how frail may be the scaffolding, it takes him forever in the light of freedom again; you will make a wound in this community that will never be healed.” This court said:
‘ ‘ The statement that the higher courts referred to had the power to review the finding of the jury on the weight of evidence was calculated to induce the jury to disregard their responsibility. * * * The judge presiding at the trial, in our opinion, should not have permitted such remarks to be made, on the close of the argument, without a prompt correction. * * * The circuit attorney represents the state, and it is presumable that the state has no wish to convict or punish an innocent man. He is employed to see that the laws against criminals are enforced, but he is not required to avail himself of his privilege of concluding the argument before the jury, to state propositions of law which are clearly untenable, with a view to influence the jury in their verdict.”
In State v. Lee, 66 Mo. 165, the prosecuting attor
In State v. Reed, 71 Mo. 200, Norton, J., said: “The court gave no instruction in regard to the legal effect of defendant’s possession of the hog, soon after it was stolen, if it was, in fact, stolen, which the evidence of the owner of it left in doubt, but the jury were allowed to grope in the dark upon that subject. In the closing argument, the prosecuting attorney, against the objection of defendant, undertook to supply the omission made by the court, and argued to the jury as to the presumption of guilt and inferences to be drawn therefrom when property was stolen and found in the possession of a person soon after the ‘supposed theft.’ The court having abdicated its duty in failing to instruct the jury as to what effect was to be given to the fact proved, that defendant was in' possession of the hog alleged to have been stolen, should at the least have forbidden the prosecuting attorney, who, in his closing argument, assumed the duty thus omitted, from making any statement calculated to mislead the jury as to the law governing that question. We think his remarks were of that character, and from the use by him of the words, ‘ supposed theft,’ the jury might well have concluded that it was not incumbent on the state to prove the corpus delicti, or the fact that the hog was stolen, but that it was only necessary for the state to offer evidence sufficient to justify a suspicion that the hog had been stolen,
The case just cited is directly in point, as to a trial court abdicating its duty in failing to rebuke a, prosecuting attorney when misleading a jury, as to the law, and is also directly in point as to a similar abdication of duty on the part of the trial court, where it leaves the jury to “grope in the'dark” in regard to the legal effect of certain evidence, by failing to instruct them on the whole law of the case; thus fully affirming the position taken by me in my original dissenting opinion, as to the evil influence of “partial, half-way instructions.”
IY. There was another element of error in the refusal of the trial court to permit counsel for defendant to state the law correctly, as to what constituted evidence-of good character, in order to combat the false statement, as to the law on that point, made by opposing counsel, because this course, on the part of the trial court, was, pro tanto, a denial of the constitutional right of the defendant to be hea,rd by counsel. It is quite obvious that if a trial court may thus invade the province of a defendant’s counsel, and compel him to be dumb in the face of a false statement of the law, in one particular, it may do it in all, and thus obliterate the right in question.
Y. There was error committed by the trial court in allowing the defendant to be cross-examined on subjects not even remotely referred to, in his examination in chief, not only on immaterial matters, but matters which had a tendency to show him guilty of other crimes, and thus to prejudice the jury against him. Evidence of specific acts, as is well known, can never be received when good character is the question being discussed. State v. Bulla, 89 Mo. 595. And yet, by cross-examination of the defendant,- the- state was allowed to introduce evidence before the jury which was utterly incompetent, it
YI. The circuit attorney, as shown by an uncontradicted affidavit filed in the cause (State v. Johnson, 76 Mo. 121), in order to prevent a continuance of the cause on the part of the defendant, had agreed with defendant’s counsel that he would waive any informality as to the depositions being improperly certified, which established the good character of the defendant, and upon this waiver and agreement, the defendant announced ready for trial. But yet, the circuit attorney, in his closing argument, was permitted, over repeated objections of defendant’s counsel, to belittle those very depositions; to state that they were returned without a certificate, were not worth the paper they were written on, were utterly valueless, etc., etc., and were only read as a favor, by his permission. Having made the agreement mentioned, and having permitted the depositions to be read, without
YII. I have not the time, nor would it serve any useful purpose, that I make any further comments on this record. I am free to say, however, that, long as I have been on this bench, I have never examined the record in any case, civil or criminal, where the rights of a defendant to a fair and impartial trial have been so frequently and so flagrantly disregarded by a trial court, as in the present instance. The points I have commented on may be considered as but types of numerous other errors, of which I make no mention.
