State v. Brooks

| Mo. | Oct 15, 1889

Barclay, J.

This cause is presented on an agreed statement of facts, in which counsel, with the commendable purpose of facilitating investigation, have given, in the compass of a few lines, an accurate view of the points of difference between them.

It is contended, first, that the court erred in this instruction, given at the instance of the state, viz.:—

“ While the defendant is a competent witness to testify in his own favor, yet, the jury in determining what weight, if any, they will give his testimony, have the right to consider his interest in the result of this prosecution, and what defendant has testified to against his interest, if anything, is to be taken as true, and what he testifies to in his favor is to be given only such weight as the jury may believe from all the evidence in the case it is entitled to.”

The point of criticism is that the court told the jury that defendant’s statements against his interest, as a witness at the trial, were to be taken as true.

The question is not as to the effect of testimony by other witnesses, purporting to recite defendant’s language out of court, but of defendant’s personal admissions, in his own cause, in presence of his counsel, under our laws permitting him to testify.

The authorities upon evidence make a broad distinction between solemn admissions in the course of judicial proceedings and admissions against interest made otherwise. Whatever the significance ascribed to the latter, the former are regarded as conclusive upon a party, at least for the purposes of the case in which they are made. 1 Greenl. Evid. [14 Ed.] secs 27, 15; Wharton’s Crim. Evid. [9 Ed.] sec. 638.

This rule has been distinctly recognized in this state. In Shirts v. Overjohn, 60 Mo. 308, it was declared that an admission- in court, in the testimony of a party, has the same effect as if made in his pleadings. The latter are “taken as true” for the purposes of the action. R. S. 1879, sec. 3545; Wright v. Town of Butler, 64 Mo. 165" court="Mo." date_filed="1876-10-15" href="https://app.midpage.ai/document/wright-v-town-of-butler-8005512?utm_source=webapp" opinion_id="8005512">64 Mo. 165. But admissions by pleadings in civil causes are certainly of no more solemn character than admissions against interest by the defendant in a criminal case before his triers and his counsel. Such admissions, sometimes called judicial confessions, if made voluntarily, intelligently and deliberately, are likewise conclusive. State v. German, 54 Mo. 528; State v. Richardson, 98 Mo. 245. To say that they are to be “taken as true” (as was done in this instance) is saying no more than that they are “presumed to be true,” or are conclusive for the purposes of the case in hand. 1 Gfreenl. Evid. [14 Ed.] secs. 27, 32; Webster’s Dictionary, Unabridged, 1883, word '■‘■RresumeR

Of course, such effect is affixed only to admissions adhered to until the time for action thereon by the triers of the fact, or of the law. If one makes an admission in a pleading, and afterwards withdraws it, by amendment or otherwise, it is no longer conclusive upon him, though it, sometimes, may yet be admissible against him with disputable effect. Just so, when admissions are made by a party as witness in a civil or criminal cause, if, by mistake, or in the embarrassment of his situation, a mis statement of this nature occurs, he may, by timely explanation, correct it. Conclusive force belongs only to the final and deliberate admission.

The defendant, in a state case, may, if he sees fit, plead guilty to the entire charge. With greater reason may he, on the witness stand, admit subordinate facts bearing on the issues involved, thus waiving their formal proof. Oftentimes, it may be less damaging to his interests to do so than to require the evidence to be furnished in other ways.

The declaration of law under review did no more than express these principles. Indeed it is difficult to discern how a defendant could be prejudiced by an instruction directing the jury to take any part of his -testimony as true. We do not think the cotirt’s declaration on that point contained any error to the prej udice of the defendant.

II. It is next urged that the court erred in refusing certain requests for instructions, and in declaring the law, of its own motion, as follows :

“If the jury believe from the evidence that witness Wright assaulted defendant with such violence as to give defendant reasonable ground to apprehend a design upon the part of said Wright to do him some great bodily injury, and to believe that there was danger of the immediate accomplishment of such design, then the defendant had the right to repel such assault, and, in doing so, to use such force and means as would seem to be necessary under the appearances of the case as presented to defendant at the time.”

Defendant’s offers were all faulty, in omitting to indicate the legal limit of his right of self-defense.

In those situations where the law sanctions resort to force to protect one’s person (or other proper legal object of care) from attack, it requires that no greater violence be used in defense than appears, to the person defending his rights, to be reasonably necessary, in the circumstances, to repulse the assault.

This rule of law was ignored in defendant’s requests on that branch of the case, while the court’s declaration accurately stated it.

In so far as the refused instructions embodied correct principles, the court adopted and gave them.

The case appears to have been tried with discriminating care and fairness. No error has been found in the record prejudicial to defendant’s rights under .the law. The judgment is affirmed,

Sherwood and Brace, JJ., concurring; Rat, 0. J., absent; Black, J., dissents.