State v. CreedState v. Creed
2. ——: ——: ——: ——: Coerced Statement to Police. Two brothers were charged with the murder of a police officer about five o‘clock in the afternoon. A lewd woman, who was in the saloon at the time the shooting occurred, was arrested shortly afterwards, and taken to the police station, where she spent a sleepless night, caused by the officers constantly grilling her and calling her a d—d liar. About six o‘clock next morning she made a statement, and it and her testimony later in the day before the coroner and the grand jury were to the effect that she saw the deceased officer hit one of the brothers with a club, after which there was some scuffling between them, and then everybody started to run, and she heard some shots and ran too, and that she knew positively that the brothers had no gun. She was again incarcerated and again grilled, and the police captain accused her of perjury before the coroner and grand jury, and advised her that perjury was punishable by imprisonment in the penitentiary, and that if she did not tell the truth she would be turned over to a certain officer, whom she seemed to fear, for further inquiry. She was questioned by the captain for five hours, and late in the afternoon, being without sleep for thirty-six hours, she made a supplementary written statement, in effect, that she saw the two brothers wrestling in the back room of the saloon with the deceased officer, saw a pistol in the hands of one of them, begged them not to shoot deceased, but they did so, shooting so close to her that the powder
3. ——: Exhibition of Deceased‘s Clothing to Jury. Where there is no question about the identity of the deceased, the nature of his wound, its location, character or fatality, and the exhibition before the jury of the clothing worn by him at the time of the shooting can throw no relevant light upon any material matter at issue and does not tend to connect the accused any more than it would another with the crime, it is an abuse of the court‘s discretion to admit such clothing in evidence, for, under such circumstances, the only effect of its exhibition is to inflame the mind of the jury.
4. INSTRUCTION: Self-Defense: Right of Attack. An instruction telling the jury that “the law of self-defense is emphatically the law of necessity, and does not imply the right of attack” is ambiguous, and may mislead the jury.
5. ——: ——: Entering Difficulty. To give an instruction for the State relating to defendant‘s right to self-defense which contains the words: “Nor will it avail in any case where the difficulty is sought for or induced by the party‘s own wilful act, or where he voluntarily enters into it, . . . no matter how imminent the peril may become during the progress of the affray, . . . and no one is justified in using more force than is necessary to get rid of an assailant or to repel an assault upon him,” is error. (Following State v. Hopkins, 278 Mo. 388, 393.)
6. ——: Imperfect Self-Defense. Where the right of self-defense or imperfect self-defense is involved, and the deceased is possessed of an instrument that defendant might reasonably consider deadly or capable of doing great bodily harm, and has reasonable grounds to fear or apprehend its consequential use upon him, he is not required to nicely gauge the amount of force to be used in defending himself, nor to exercise a perfect judgment, but only to
7. ——: Admitting Crime. Where defendants do not testify, and neither they nor their attorneys say or do anything that can be construed as an admission that they or either of them shot or wounded deceased, it is error to give an instruction telling the jury that “the defendants admit the shooting and wounding, but claim they acted in self-defense.”
The evidence on behalf of the prosecution was to the effect that the two defendants, Thomas Creed and Robert Creed, in company with a lewd woman named Edna Brooks, on the afternoon, about five o‘clock, of the aforesaid day, entered a saloon or “soft-drink parlor” of one William F. English, at the southwest corner of Clark Avenue and Twenty-first Street in the city of St. Louis; that soon thereafter while the two defendants and the said Edna Brooks were standing at the bar and all of them drinking whisky, Police Officer Geisler entered and spoke to the defendants and others as he passed to the
There were a number of people in the saloon playing cards and standing around who saw the officer come
Defendants’ testimony was that before going to the English saloon they had been drinking but that no pistol was given to them. One witness testified that the deceased said just before entering the saloon: “I see that s— o— b— Creed here again. About the only way that I can keep him off my beat is to kill him.” Another witness said that the officer upon entering the saloon approached the appellants and cursed Robert Creed, began striking him and drove him into the back room; that Tom Creed asked the policeman not to hit Bob, but just to lock him up. This witness did not see the shooting, but heard Tom Creed say immediately afterwards, “What have you done Bob, what have you done?” He heard Bob Creed reply: “He caused it himself, Tom.”
I. It is a general rule of law that the testimony of a contradicted, impeached or discredited witness cannot be confirmed by proving that he made similar declarations out of court. [People v. Katz, 209 N. Y. l. c. 338.] An exception to the rule is later noted.
In objecting to the admission in evidence of the rehabilitating statement of witness, Edna Brooks, the defendant takes the position that her trial testimony, having been impeached on cross-examination by her testimony before the coroner, and on her first appearance before the grand jury, could not be restored by statements made subsequent to the impeachment. To lucidly understand the proposition presented, a review of the evidence is apropos.
On the same evening, subsequent to the shooting, Edna Brooks was arrested. The next morning about six a. m. she made a statement in writing to the police officers, in effect, that she did not see the shooting. This statement was made after a sleepless night, caused by the officers constantly grilling her, and calling her a damned liar. Later in the morning, she was examined before the coroner and the grand jury, her evidence tending to show before each “that she saw the deceased hit defendant, Bob Creed, with a club, after which there was some scuffling between them, and then she saw everybody get up and start to run, and she heard some shots and she ran, too; that she knew positively the Creed boys had no gun.” She was again incarcerated and again grilled. The police captain accused her of perjury before the coroner and grand jury. (On the trial, she admitted perjury before the coroner and on her first appearance before the grand jury). She was questioned by him five hours, and advised that perjury was punishable by imprisonment in the penitentiary, and that if she did not tell the truth she would again be turned over to a certain officer (whom she seemed to fear) for inquiry. That afternoon, about 5:30 p. m., being without sleep for about thirty-six hours, she made a supplementary written statement, in effect, that she saw Bob Creed and Tom Creed wrestling in the back room with deceased, saw a pistol in Bob Creed‘s hand, begged them not to shoot deceased, but they did so, shooting so close to her that the powder burned her hand. Over the objection and exception of defendant, to rehabilitate her testimony, the State introduced the supplementary statement made by the witness to the police.
We think the admission, in evidence, of the supplementary statement, was error.
It is clear from the epitome of facts, that the supplemental or additional statement made by the witness to the police does not come within the exception to the general rule, that the testimony of an accomplice in crime
There seems to be no doubt that at the time the witness made the supplemental statement, she was under the moral and physical duress of the police department. Her interest and motive was to escape punishment and obtain sleep and peace. Her will power had been battered down, so that she was under the complete domination of the police, and while it is possible for her testimony, given at the trial, to be true, the coercion used was sufficient to cast grave doubt upon its verity. As was said in Legere v. State, 111 Tenn. 368, l. c. 374-5, in no case, so far as we have been able to discover, has corroborative testimony been admitted when it was to the interest of the witness to make a false statement. [Ewing v. Keith, 16 Utah, 312; Conrad v. Griffey, 11 How. (52 U. S.) l. c. 491; Ellicott v. Pearl, 10 Peters, 439.]
The supplementary statement was again inadmissible, for that it was made subsequent to the testimony by which the witness was impeached. Such testimony may not be used to import verity. Out of such procedure would arise corruption and perjury. It would tend to defeat the ends of justice, by supporting the faltering testimony of a discredited, impeached or perjured witness. Admitting such testimony would resolve itself in a race resulting in rebuttal and sur-rebuttal, to determine which party could produce the greater number of witnesses in contradiction. This would not determine their credibility and would lead to injustice.
In Conrad v. Griffey, 11 How. (U. S.) l. c. 492, 13 L. Ed. 779, the Supreme Court lays down the rule that the rehabilitating statements, not having been made prior in time to the discrediting or impeaching statements, do not appear on principal or precedent to be competent. The case follows the rule proclaimed in England and in a number of our states. This is the rule adopted in the following cases: Brazier‘s Case, 1 East P. C. 444; Ellicott v. Pearl, 10 Peters, 439; Stolp v. Blair, 68 Ill. 541; Legere v. State, 111 Tenn. 368; Queener v. Morrow, 1 Cold. 123; State v. Caddy, 15 S. D. 167; Robb v. Hackley, 23 Wend. (N. Y.) 50; Ewing v. Keith, 16 Utah, 312; Com. v. Jenkins, 76 Mass. 485; Waller v. People, 209 Ill. 287; Matter of Hesdra, 119 N. Y. 615; Griffin v. Boston, 188 Mass. l. c. 476. The St. Louis Court of Appeals in Flach v. Ball, 209 Mo. App. 389, discussed the question and reached the same conclusion. We think rightly so. The present case is distinguished from State v. Maggard, 250 Mo. 335, for the rehabilitating statement there was prior in point of time to the impeaching statement.
II. Defendant complains of the admission in evidence of the clothing worn by the deceased at the time of the shooting. In State v. Porter, 276 Mo. 387, 207 S. W. l. c. 777, WALKER, J., for the court, says, that such
III. Defendant contends that Instruction 8, on self-defense, is erroneous and does not properly declare the law. This instruction states “that the law of self-defense is emphatically the law of necessity, and does not imply the right of attack.” This is ambiguous. If it conveys to the jury that one may not attack without first being attacked, then there is no fault in it. If on the other hand the jury may gather its meaning as prohibiting an attack, by the assailed, as a means of defending himself, then we think it misleads the jury. Capable of being so interpreted, we think the ambiguity error.
Complaint, regarding said instruction, is further made of the following: “Nor will it avail in any case where the difficulty is sought for or induced by the party‘s own willful act, or where he voluntarily enters into it, . . . no matter how imminent the peril may become during the progress of the affray, . . . and no one is justified in using any more force than is necessary to
We think the above excerpts ambiguous, extending the vice to the whole instruction. The above portions were commented on in State v. Hopkins, 278 Mo. 388, l. c. 393-4. We are unable to add to the clear reasoning therein, and think it applicable to the present state of facts. We hold the giving of the above instruction error. [State v. Roberts, 280 Mo. 669, l. c. 682, 217 S. W. 988; State v. Roberts, 242 S. W. 669.]
IV. Defendants complain that the court erred in refusing to instruct the jury on their right of imperfect self-defense and on the subject of nicely gauging the amount of force to be used in perfect or imperfect self-defense. The testimony for the State tended to show that defendants gave the first provocation and brought on the difficulty by the use of offensive language, and that then the deceased struck Bob Creed with his club. To this point the testimony fails to show an assault, actual or threatened, by the defendants, toward the deceased, but merely shows the use of vile names and offensive language. The next act related in evidence is the striking of Bob Creed on the head or in the face, by deceased, with the policeman‘s club. We then find, according to the State‘s evidence, Bob and Tom Creed pushing and shoving the deceased through the passage to the rear room. According to the testimony of the defense, we find deceased using his club to force Bob Creed through the passage to the rear room, and Tom Creed asking the deceased not to hit Bob, but just to lock him up.
The above testimony tends to show that Bob and Tom Creed brought about the argument, but fails to show a felonious act committed or attempted on their part before the use of the club. After bringing about the difficulty, there was evidence to the effect that the Creeds defended themselves from a felonious attack. Therefore an instruction involving the right of imperfect
Where either the right of self-defense or imperfect self-defense is involved and the assailing party is possessed of an instrument that the defendant might reasonably consider deadly or capable of doing great bodily harm, and has reasonable grounds to fear or suspect its consequential use, the defendant is not required to nicely gauge the amount of force to be used in defending himself. The legal requirement is that of good faith only, and does not demand perfected judgment. We therefore think the court should have given an instruction embodying that principle. [State v. Hopkins, 278 Mo. 388 l. c. 394.]
V. The defendants did not take the witness stand. Neither they nor their attorney said or did anything that could be construed as admitting that they, or either of them, shot or wounded deceased. The court then committed error in giving that part of instruction seven, which reads: ”The defendants admit the shooting and wounding, but claim they acted in self-defense,” for the burden was on the State to prove beyond a reasonable doubt that defendants or one of them shot deceased. [State v. Vaughan, 141 Mo. 514, l. c. 521.]
VI. Instruction F was asked by defendants, to the effect, that the jury may consider uncommunicated threats made by deceased against Robert Creed as tending to explain the conduct of deceased. This instruction should not have been given as it was an unwarranted comment upon the evidence, singling out and giving undue prominence to certain portions. The court covered the subject, in its general instruction, that the jury could consider all the facts and circumstances in arriving at its verdict. We think
For as much as the foregoing errors deprived defendants of a fair and impartial trial, we reverse and remand the case to be retried in accordance herewith. Railey and Higbee, CC., concur.
PER CURIAM:—The foregoing opinion of DAVIS, C., is hereby adopted as the opinion of the court. Walker, J., concurs; David E. Blair, P. J., and White, J., concur in paragraphs 1, 2, 3, 4 and 5, and the result.