*1 213 applies only governmental action. It is a “restraint sovereign activities of authority,” assumed, real or and was never “intended to be a limitation governmental than agencies.” other McDowell, v. 256 65 U. S. L. Ed. 41 Sup. 574; [Burdeau Ct. State Lock, supra; v. Owens, State v. From all appears supra.] McNally may here acting have been initiative, on his own in which event his evidence would be admissible- because the constitutional inhibition unreasonable search and seizure ais restraint on the apply State and does unlawful search and seizure Steely, individual. v. 327 (2d) 33 S. W. 938; Aldridge [State States, (2d) 956; v. 22 S., United Fed. C. J. Sec. p. 1024.] Regardless guilt, of the defendant’s we opinion are of the he is entitled to a new trial because of the errors indicated. The judgment is reversed and the cause remanded. Westhues Bohling, GC., concur. foregoing opinion
PER Barrett, C., CURIAM:—The adopted is opinion judges the court. All as the concur. Butts, Appellant. (2d) S. W. 790.
The State James Two, Division March 1942.
Bichará Arens appellant. *2 Nolen, W. Assistant McKittricJe, Attorney Ollwer
Boy General and General, Attorney respondent. for WESTHUES, Appellant was in the Jackson convicted C.
County degree Circuit in the death Court of murder and the first imposed. appeal duly sentence was An taken. points number of preserved question
A for our review. The defendant, whether confession of the at the used him trial, voluntarily qualification made, and the juror challenged ground on the cause juror City, was at time trial officer of Kansas Missouri, important are the two most points. charged Margaret having Mary murdered
Maenhoudt, eight years old. little *3 The evidence revealed that the girl had brutally assaulted and beaten to death. Her then body patch nude was found in a weed the crime had been where rape committed. The perpetrated double murder crime of and helpless this little dastardly child most and and was atrocious naturally indignation. exceptions aroused The of contains public bill over one pages, sufficiency to thousand since but the evidence sustain a challenged conviction facts was not we state the will briefly as the permit. victim of the crime lived circumstances The her parents family at 3054 Appellant street. and his Oakley lived at 6102 body East 30th on street. The was found child’s a plot ground vacant Topping of near street and avenue. These 31st points are City, located a of Missouri, Kansas within few blocks each August other. >At Saturday afternoon, about 1:00 o’clock on 17, 1940, store, Mary Margaret grocery a Mrs. Maenhoudt sent to which was home, purpose about two from their for the of blocks getting' groceries. some groceries purchased A the was list of to be written slip stopped a the home paper. girl small of The at little aunt, her Maenhoudt, Thelma next Mrs. door and who lived gave also her groceries a wrote purchased. list of be Her aunt the name “Thelma” return slip paper. on the The child did not home, inquired grocery and after the waiting some time the mother at store and alarmed learned the child became not been there. She had investigate. and she and began Mrs. Thelma and others Maenhoudt the neighborhood Soon were joined entire The in the search. notified it' they began investigation. and About 2:00 too o’clock an began child heavily. body rain at The and rained intervals Maenhoudt, a found on by aunt, Mary about 6:30 o’clock vacant lot by thick, high An examina- surrounded brush. weeds and tion of body criminally assaulted revealed that the child had been and her skull crushed. crime, appellant with aside tending to connect evidence
The follows: A number alleged confession, was in substance as from his p. day they 2:00 m. that at about noticed testified that of witnesses edge together girl sitting at of a street the little and appellant body found. These witnesses noticed that where the far from were slip of her hand. witnesses paper had small the child a appellant the child. At acquainted with about both personally p. him appellant’s home took m. officers went 7:00 wet, asked about custody. and when his where- His clothes into he at home all afternoon. during day stated that had been he abouts sent shirt, other articles were to the Bureau Appellant’s overalls and Washington, Investigation employee depart- at C. An of that D. package opened he that when the reached bureau ment testified contents; paper he in the slip that found a it and examined the paper identified Mrs. Thelma pocket slip shirt. This groceries list as the she had paper upon Maenhoudt which written girl. writing purchased little She identified to be name thereon her paper as her own and the “Thelma” written signature. appellant Police officers intoxicated testified Appellant trial he had when him. at the admitted arrested pint whisky during afternoon. consumed appellant’s ’to of whether pertaining voluntarily confession was made was about follows: The p. m. custody stated that was taken about 7:00 into signed Saturday; Sunday morning 4:00 he about o’clock con- ; Sunday and phono- that he another about noon that a fession graph Sunday made record confession was about 1:30 afternoon. at the trial refuted these confessions testified that he unmercifully police; up kept had been beaten that he was taken, custody night; family into members of had been *4 during night wife, and that the he see permitted sometime was to his room, together, children and a two son-in-law a handcuffed showup speak permitted they that he was not to to or to and but them him they him; that he family that could not see was told the would not be signed confession; he all released until that of this he because police, a statement him the which statement he dictated to repeat phonograph was forced times then a record to numerous and county jail made physician, appellant, was thereof. The a witness for jail that Monday appellant testified on he examined the at and found trauma; swelling lip a cut and that left on lower caused the ruptured; ear-drum had been wrists were defendant’s swollen very appellant’s were he and tender and that found wounds on shins. police emphatically appellant that officers denied had any purpose mistreated manner. For the of this ease in de and termining appellant’s confession of whether was volun disregard tarily appellant’s made we evidence and take as will given by police justifies officers. That evidence true tbe concerning following confession. After statement police headquarters arrested he was taken to all where appellant was given jacket he clothing removed and was a white dark of his was and large very were much too for him. to wear which trousers officers, another, including first by police one and then questioned was police headquarters from the time he reached until police, the chief of During sleep, at noon. this time he did not and day the next at crime, a. m. he taken to the scene about 3:00 was where in he police of a number of turned over rocks presence numerous through the clothing searched brush and weeds for the and child, that time had not been found. At 6:30 M. up which about A. again he taken to the of the crime for the purpose, was scene same but clothing during morning was not found. Later someone found clothing appellant again was taken and to the scene. At time this clothing rock appellant was shown the under which the was located taken photographs appellant were while he stooping pick- ing photograph the clothes. This that up shows he was handcuffed police officer a number standing nearby. to a officers were As at the to the conditions scene of crime a officer testified that about twelve officers were there. His testimony continued follows:
“Q. they weapons them, And had their they? Yes; A. didn’t they all men. were uniformed ‘‘Q. And one two out, they or of them had their clubs ? A. didn’t They did.
“Q. One or had their drawn now, they, two clubs back didn’t No; ready they for action ? A. ready right. action all “Q. As matter of fact in another few minutes have did action, they? No; a little didn’t A. left merely we the scene and They went on back. protection were there defendant, Mr. Butts.
“Q. Yes; I understand. A. people There were hundred five there approximated, hollering we at us.”
Another officer testified appellant very that much con- family; the safety during cerned about of his night, before signed, appellant’s wife, son, confession was daughter son-in- law were handcuffed and a showup appellant taken to room where them, permitted they, family, see but ap- could not see pellant. appellant’s family members of were released from custody Monday. Another officer that during testified night appellant’s questioned wife was adjoining in a room that which appellant occupied. Appellant permitted to hear his wife state in questions answer the officers had been home *5 Appellant, during all afternoon. all time, of this permitted was not speak to any family, member of friends or counsel. Five or questioning major portion eighteen spent the of hours more officers having alleged writing, confession it reducing the to
appellant, phonograph ap- on a disk. disk recording the confession reproduced jury. The record of before pellant’s statement exceptions, in the bill of revealed that the officers this, appears as it him, sentence, and the by sentence read defendant’s confession right” reply, “yes, “that’s or sir.” The record defendant would fatigued. prisoner extremely at the time further revealed alleged confession, opinion obtained under areWe revealed by as the evidence of the State’s above circumstances against involuntarily made and inadmissible evidence witnesses, alleged whether obtained in question of confessions were him. The rights has constitutional been before the courts of violation of The number be occasions. cases seem not to land on numerous these holdings despite consistent of the courts that con on the decline through fear, violence, means or by promises, or fessions obtained in the trial For recent are inadmissible evidence of the accused. Supreme decided the United point cases in States Court see California, term, 1941, numbers Sup. October Ct. Lisenba v. Texas, 530; 310 U. 620; Florida, White S. Chambers v. 309 U. S. the latter case court said: 227. In impressed by argument not “We are law enforcement are necessary uphold as those under review laws. methods such our proscribes irrespective such lawless The Constitution means argument flouts the principle end. And this basic that all must people equality justice every before bar of American stand Today, ages past, tragic proof we are not court. without power governments punish that the exalted of some manufactured is dictatorially tyranny. the handmaid crime Under our constitu- against system, any tional courts stand winds that blow as havens of might refuge helpless, suffer for those otherwise because are outnumbered, they are weak, non-conforming or because victims process prejudice public law, preserved excitement. Due Constitution, practice our commands that no such as that dis- any higher closed this record shall send accused to his death. No duty, responsibility, court, no more solemn rests this than that translating living maintaining into law this constitutional deliberately planned and inscribed for every shield the benefit of subject our being race, human Constitution —of whatever creed persuasion.” or rulings
Under of these cases the confession the de voluntarily fendant in the case at bar was not made and admissible him. For cases decided by this court Ellis, 242 S. (2); see State v. W. l. c. 955 State v. Powell, 266 Mo. 180 S. 851. The Powell case W. was twice before appeals confession, court and court on this this both held obtained
219 us, inad- than those in the case before milder circumstances under Note this court had voluntary not of a what because nature. missible say: ‘‘ officers, the fact nine for Error before arose from substantial trios, collectively, individually, pairs or in or part most or police, the 2 the afternoon continuously from o’clock in defendant ‘sweated’ morning', time, Captain 1 ’clock at after Police Stone till o next which nine, presence, in had de- apparently others the Stone’s and told truth,’ it ‘be for him to tell the he made and fendant would best alleged record, in as the Upon the confession evidence. this former, that he we do not credit the of the defendant statements utterly and maltreated; point and this is overwhelmed beaten for on he testimony. here the instant by countervailing discredited But the affirma- appear other identical infirmities foundation record ’’ testimony tively from the of witnesses for the state. 974, ruling. Roberson, 283, See La. for a State v. 103 So. 157 similar Mo. 74, Menz, have read 106 carefully We the cases of State v. 341 Williamson, 448, 449, 450(11, 339 (2d) 440, 12); W. l. c. State v. S. State, 1038, 99 the such (2d) 76, W. and other cited Mo. S. cases 286; (2d) Arndt, Evans, State 143 S. W. State 133 S. W. (2d) v. v. 46; Mo. Tharp, (2d) 345 Mo. State 64 334 398; v. S. W. W. Christup, (2d) 85 S. 776. In all the latter State cited, cases where of whether confessions vol the untarily the the State jury, part made left to a the evidence not prisoner rights that the sub showed was accorded all of punish jected any physical. mental Mental punishment either or is, physical. than circumstances, ment under certain more cruel through night by the various questioning continuous seeing officers, questioning hearing, members the of his within his wife family in early morning of his handcuffed hours custody had police, public of the the realization that sentiment feared mob violence police aroused to such an extent that (which together fact rendered impressed upon appellant) added a matter involuntary a confession made in such circumstances of law. jurors
On it was' panel the voir dire examination of juror Engle member of disclosed that Danford at time a Z. such an officer police City, Missouri, and had been force of Kansas years. challenged juror eight for preceding depart cause, assigning a that he was a member reason view challenge ment. The have been sustained. In should juror’s superior, police, prospective fact chief was the case, the dis and other material officers were witnesses question. qualification juror debatable should have been In C. J. sec. we read:
‘‘ men; trial by more twelve jury something than Trial means qual- requisite possessing a trial twelve men imports the term living impartial parties, within duty, between the jury fieations for court, by impartial and selected jurisdictional limits of drawn officers, direction duly impaneled disinterested under impartial according competent to render an verdict court and sworn . n . evidence; the law and duty preserve He primary peace. of a officer is to is an require daily duties him to contact officer of the law whose come in *7 paid law He public treasury crime and enforcement. is out with certainly time to his duties. are to devote his There thousands police aside from the force good county citizens in Jackson and a any county number in can for qualify jury sufficient the State who ought police necessary service. It not be to withdraw from performance fill a jury panel. practice of their duties to It is bad trial cases, police do so for the of civil and a in officershould no case juror in a anyone say serve a criminal case. Would a that defend- ant, by jury consisting officers, tried a of police jury was accorded a contemplated by trial as argues our Constitution? The that State disqualified are not jury by .officers service our statute Sec. question. R. S. 1939. That Mo. does not answer statute arbitrarily exempts persons certain from It jury does service. not them. Sec. R. disqualify S. is that section dis- persons. qualifies certain It incompatible seems justice that a apprehended defendant who has by police, going testify, whom officers are be jury should tried a made up of officers. Note the terse statement by this court in Langley, State (2d) 38, 116 W. S. Mo. 447: assignment “In the first in brief, appellant error challenges his ruling correctness in not sustaining challenge for cause Ball Jurors John and M.O. Williams. On their voir dire examination jurors these they two stated that deputy were sheriffs but that not objection active. We think the well taken. many are why deputy There reasons disqualified sheriff should be ease, a criminal especially where State, the sheriff is a witness for as in case at bar. In place, the first our State Constitution guaran- tees defendant impartial trial jury. Section article 2.” That case was reversed the cause remanded solely for that error. assignments Other error need not be discussed since they arose under circumstances which are likely not to occur another trial. assignments One pertains of these argument prosecuting attorney, during which the mother of the victim of the crime is shrieked, have fainted and collapsed presence in the jury and then was carried from the court room. It is not surprising, view detailing adduced crime, horrible mother of the victim collapse. should In case of a hoped retrial it is present the ordeal in the may spared being she be court except absolutely necessary. when room judgment the trial court is reversed and the cause remanded.
Bohling Barrett, GG., concur. foregoing by Westhues, C.,
PER opinion CURIAM :(cid:127) —The is judges All adopted opinion as the court. concur. (Jack) West, Appellant. K. (2d) S. W.
The State v. Charles 966. Two, Division March 1942.
Boy Attorney McKittrick, General, B. Creech, Bichard Assist- Attorney General, respondent. ant