*1 1923, VóL State v. Creed.
THE CREED and ROBERT STATE THOMAS
CREED, Appellants. Two,
Division June Impeached Testimony: 1. EVIDENCE: Dec- Witness: Confirmation Exception. general out of larations Court: The is that rule of law testimony contradicted, impeached of a discredited by proving cannot be confirmed he declarations that made similar exception testimony out of court. An the rule is that accomplice may by showing an in criine be that when corroborated first narration arrested his facts of the crime the same was at the trial. 2. -: -: -: Coerced -: Statement to Police. Two charged police brothers were with the murder officer about of a woman, in the five o’clock afternoon. A lewd who was shooting occurred, shortly saloon at the time the afterwards, was arrested police station, spent and taken to the where she night, sleepless constantly grilling the officers caused and her calling morning her a d—d liar. o’clock About six next she made statement, testimony day and it and her later in the before the grand and the coroner were the effect that she saw the de- a.club, officerhit one of the brothers with ceased after which there scuffling them, everybody and was some run, between then started to too, posi- she heard some shots and ran she knew tively gun. again brothers had no She was incarcerated again grilled, captain police perjury accused her of grand jury, perjury before coroner and and advised her that imprisonment punishable by penitentiary, in the if did not tell the truth she she would turned over to a certain officer, fear, inquiry. whom she seemed to for further She was questioned by captain hours, for five late the afternoon^ thirty-six sleep hours, supplementary without she made a statement, effect, written that she saw the two wrest- brothers ling officer, in the back room of the saloon with the deceased saw pistol them, begged a deceased, hands one of them not to shoot so, shooting powder did so close her that the MISSOURI, OP COURT SUPREME brothers, testified for At the trial of the she burned her hand. State, testimony in substance the same as and her supplementary statement statements written into the
police; that her but she stated on cross-examination true, grand jury and admitted before the coroner and was not Thereupon perjury. the committed in said she had testimony, State, confirming purpose ob- her over the the for of jection supplemental defendants, written in of offered evidence pur- police, for that it admitted statement made the and was to rule, exception pose. Held, the within the to it did not come statement, error. A coerced corroborative and its admission was impeached testimony, subsequently is not admissible the to rehabilitating purpose witness’s tes- such for tbe of in evidence timony statement. interest make a false when it to his to Clothing Jury. to -: of Deceased’s Where 3. Exhibition deceased, identity question of the nature the is no about the of fatality, wound, location, the exhibition its or his character clothing jury the the the him at time of the worn before upon any light shooting matter material can throw relevant any than the accused more and does not tend to connect issue at crime, it is an abuse of the court’s another with the it would clothing evidence, for, under in such discretion to admit such only circumstances, the exhibition is to inflame effect of its jury. mind of the Right An of Attack. instruction Self-Defense: 4. INSTRUCTION: emphatically jury telling self-defense is that “the law of necessity, imply right is of attack” does not law jury. may ambiguous, mislead give Entering Difficulty. an instruction for -: -: To 5. right relating defendant’s self-defense which con- to to the State any difficulty case where the “Nor it avail in tains the words: will party’s act, sought wilful or induced own where or is for it, voluntarily matter how imminent . . . no enters into he affray, may progress peril during . . . become justified necessary using to than more force is no one is him,” upon repel get is error. assault or an an assailant rid of 393.) Hopkins, (Following right Imperfect of self-defense Where the Self-Defense. -:6. involved, possessed is imperfect and the deceased self-defense or deadly reasonably might consider that defendant instrument of an grounds harm, bodily doing great capable and has reasonable or him, upon consequential apprehend is not he its use fear or nicely gauge used de- required the amount of force to be perfect only judgment, himself, but fending to exercise nor Yol. Creed. principle good faith, embodying this act and an instruction given.
should be testify, Admitting -: Crime. do Where defendants anything attorneys say they can neither or do nor their they them shot be construed an either admission or telling give deceased, an instruction is error to wounded wounding, shooting that “the defendants admit claim acted self-defense.” Robert Appeal W. Louis Circuit Court.—-Hon. from St. Judge. Hall, and remanded.
Reversed Harvey appellants. Baer& permit prosecution, (1) It error to Edna introduce Brooks, re-examination *3 police her statement made in evidence her to appearance given on her second before evidence impeached thoroughly jury. grand been The witness had given by before on her cross-examination given appearance on her first before the coroner and also lawfully jury, grand rehabilitated and could not by subsequently impeaching statement made state- Kelly App. Flach 209 Ball, 401; ments. v. Mo. v. American App. Griffey, 20; Mo. Ins. 192 Conrad 16 Co., Cent. v. (IT. S.) 412; Ellicott 35 Pearl, Queener v. S. 37; How. IT. Legere Stolp 541; 123; Blair, 1 v. 68 Morrow, 111. v. v. Cold. Caddy, 368; 167; v. 15 D. State, 111 Tenn. S. State ITackley, Ewing 50; v. 16 23 Wend. Keath, v. Robb 312; v. Jenkins, 485; 76 Mass. Waller v. Utah, Com. City Ry. People, Chicago v. 287; 209 111. Co. Matthieson, People 337; v. 209 N. Y. 297; Katz, 111. Matter of 212 476-; v. 615; 119 N. Y. 188 Hesdra, Boston, Griffin Mass. (2) 222 249. It Retkavitz, Mass. was error to Com. v. jury garments bloody in evidence admit before solely police evidently officer,it of the slain offered inflaming jury. purpose of for the the minds of the State 387; v. Mo. v. 239 Porter, Tarwater, 276 S. W. .State 310 SUPREME COURT OP MISSOURI,
.State v. Creed.
(3)
484;
v. Allen,
State
S. W.
Instruction
does',
on
numbered 8
self-defense
erroneous and
is
properly
Hopkins,
declare tlie law. State v.
278 Mo. 388;
v.
669;
Mo.
Roberts, 280
S.
Roberts,
(4)
refusing
give
W. 660.
Tlie court
erred
at the
request
subject
of defendants Instruction
on
A,
imperfect
and Instruction
self-defense,
D,
the effect
required by
the defendants were not
the law' to
nicely gauge the amount of force
to be used
defend-
ing
(5)
themselves. Authorities
under Point 3.
cited
stating
Instruction numbered 7,
de-
shooting
wounding,
fendants admitted the
fla-
a
grant
comment
the evidence
and was
court,
Vaughn,
error. State
514;
Mo.
Green v. State, 7
App.
People
803;
Ga.
v. Warren,
213;
Cannon
People,
People
141 111.
v. Lee Chuck,
State killing day that the defendant armed occurred, pistol went brother he and his and with a loaded himself from or invitation without solicitation to the deceased difficulty and provoked him and shot him, with a him, purpose pro- in that their evidence whatever there is no voking any difficulty than commit other act right imperfect killing, on the of self- an instruction 280 Mo: Roberts, authorized. State defense is not 614; Mo. v. Jen- Kelleher, State 669, (7) instruction An on the sub- kins, ject S. W. person to the effect that a of self-defense attacked nicely gauge proper quantum required or properly of used is refused amount force to be where already court instructed the that the has defendants right apparently had the to use such force as was neces- sary to resist the and that more force than assault, lawfully necessary good if could be used there was cause great apprehend bodily injury or death from as- sault. C. Robert Creed
DAVIS, and Thomas Creed were days’ day after a three convicted, trial, on the 23d April, degree, pun- of murder the first and 1921, their imprisonment penitentiary fixed at ishment for day on the their natural 31st lives, that, October, police George shot Geisler, officer killed city of St. Louis. prosecution on behalf The evidence was to that the two Thomas defendants, the effect Creed company lewd woman named Creed, Robert five Brooks, afternoon, o’clock, Edna on the about par- day,.entered a saloon “soft-drink the aforesaid English,, at the southwest lor” F. corner of one William Twenty-first city Street of Clark Avenue thereafter while two that soon defendants Louis; St. standing at the Edna Brooks were bar the said and all whisky, drinking Police OfficerGeisler entered of them passed spoke others as he to the defendants Yol. returning his to the saloon the room;
rear of *6 an altercation occurred between while thereafter a short during Creed Robert and Officer Geisler, defendant which being thief brother and as Creed referred Geisler’s epithets (testimony to the officer offensive ¥m. used taking po- English). then went him, F. Defendants During alterca- either of deceased. said on side sitions (tes- club officer struck Robert Creed with his tion the timony Thereupon strug- Brooks). there awas of Edna gle the the three the officer and Creeds and between opening through the at the end of the retreated of them large room connected the saloon, back with bar into a pushed through by being de- shoved and deceased the shortly shots were fired in said thereafter and fendants, persons whereupon sa- the all the numerous room, through proper door, the front to the street fled loon including given according testimony to her Brooks, Edna morning the homicide after and coroner the the before by day, her grand admitted the same before the however, she stated trial, thisOn on cross-examination. closely and the officer defendants the followed that she prevent tried to room and into the aforesaid back up having the de- hands and any shooting, his the officer and that shots were him, on side of either fendants just powder-burn that her; as to fired so close shooting and was the saloon ran out into she after the hanging
upon railing while there and bar, through and short- bar-room, run out the officer saw gun saw she ly and said defendants, thereafter they passed, then and them as one of hand in the the officer fall in and saw sidewalk, on the she went out thought and defendants the street. She friendly did not talking manner, in a officer were language epithets the defendants any or abusive hear Robert Creed across just officer struck after until his club. the face play- people in saloon a number of
There were officer standing come ing around who saw cards MISSOURI, COURT OF SUPREME , talking’ arguing together, lie the defendants upon hearing ran who the' shots from saloon. shooting after the the hat, Soon revolver and club of on the floor of the officerwere back aforesaid found testimony regard Edna Brooks room. The using was officer club defendants corrobo- his Hancen witness Thomas 0 ’Con- rated testified that the ner; and witness John J. Gorman offi- (cid:127) threats, just he before entered the cer, saloon, against life of Creed. Robert going
Defendants’ before English drinking they had been but that the pistol saloon them. One witness testified that the just entering before the saloon: “I deceased said see again. way only About the o— Creed here s— b— *7 my keep kill him.” him off beat is to that I can Another upon entering said that officer saloon appellants approached Robert and cursed be- Creed, gan striking into drove him room; him and back policeman just hit not to but Bob, asked up. Tom Creed, shooting, not This see the lock him witness did say immediately afterwards, but heard Tom Creed “What you you what have done?” He Bob, have done heard reply: “He caused Tom.” himself, Bob Creed general rule of law that the I. It is a impeached or discredited witness contradicted, cannot a by proving
be confirmed that he made [People COlUfixmclfklOIl court. similar declerations out v Testimony: 338.] Katz, 209 N. Y. l. c. An e State Coerced . x of Court. out e ment c p the rule later noted. is tion objecting In to the admission evidence of the re- witness, statement of Edna habilitating Brooks, the de- position testimony, trial fendant takes that her hav- ing impeached on cross-examination been her testi- appearance mony before the on her first coroner, grand jury, before the be could restored state- impeachment. subsequent made ments ly To lucid- proposition presented, understand the a review of the apropos. evidence
Vol. evening, subsequent shooting, the same to the On morning Edna arrested. The next about Brooks was writing police six a. she made statement m. a shooting. that she did not see the effect, This officers, sleepless night, made after a caused was statement constantly grilling calling her her, officers morning, in the she damned liar. Later was examined grand jury, and the' before the coroner her evidence tend- ing each “that she the deceased hit before saw Bob with a after which there was defendant, club, Creed, every- scuffling and then some between she saw them, body get up she some run, and start to heard shots positively the too; that she knew Creed ran, and she gun.” again boys She was incarcerated had captain police again grilled. The accused (On grand jury. perjury coroner before the perjury before the coroner admitted and on she trial, appearance grand jury). before the She her first perjury questioned by advised that hours, him five imprisonment penitentiary, punishable .by in the again she not tell the truth and that if she did would (whom certain officer she over to a seemed turned p. fear) inquiry. That about 5:30 afternoon, m., thirty-six sleep she hours, for about without supplementary statement, written she effect, wrestling in the back Tom Creed Bob Creed and saw pistol in Bob Creed’s deceased, hand, saw-a room begged deceased, did so, not to shoot them *8 powder burned her shooting her that the to so close exception objection of to defendant, the hand. Over sup- testimony, introduced the the her State rehabilitate police. by to the plementary the witness made statement supple- of the in evidence, admission, the think We mentary error. statement, was sup- epitome facts, the the of from
It is clear by the plemental made statement witness or additional exception to the police the within does come accomplice testimony of an crime general the rule, OF MISSOURI, SUPREME COURT v. State Creed. by may showing that first be corroborated when ar- gave relation of he he the same facts which rested had during given oath the trial. The on statement introduced attempt prove by to the was an the evidence State verity by on oath of statement not on evidence by had oath when the been at time witness coerced overpower sleep grilling as and a such to her loss of The had discredited the will. witness defendant cross- pur- perjury. her of examination and admission The pose it.- to rehabilitate was There were two necessarily one of which was statements, inconsistent did not offer cross-examination false. Defendant testimony, prove verity to her unworthy upon. not be it of belief could relied was perjurer testimony and she was a Her by was discredited impeachment not. Her dis- her admission. was own proved supplementary statement, use nor establish; all it was admissible offered was only way hearsay. proof, for it was The as substantive prove contradictory statement is to- of a to meet evidence present it. case In not make she did making it. admitted that at the time to be no doubt
There seems supplemental was statement, she un witness made police depart physical der duress the moral punish escape was to aiid motive ment. Her interest peace. sleep power Her will had ment and obtain complete she under so that down, been battered possible police, while it is domination testimony, coercion true, to be trial, at the used verity. grave its doubt As was sufficient cast Legere l. 111 Tenn. c. State, 374-5, was said v. able been to discover, so has far we have case, when it been admitted corroborative a false make statement. the interest the witness Griffey, [Ewing Conrad v. Keith, Utah, 312; S.) (52 Pearl, Peters, How. U. l. c. 439.] Ellicott *9 Yol. 317 State Creed. t. supplementary again
The statement was inadmissi- subsequent it was made for that the testimony ble, impeached. testimony may the witness which Such import verity. procedure be Out of not used to such corruption perjury. would arise It would tend justice, supporting faltering defeat the ends impeached perjured testimony of or discredited, wit- Admitting such resolve ness. would itself resulting in in rebuttal and to deter- a race sur-rebuttal, party produce greater mine which could number of in This would not determine witnesses contradiction. injustice. credibility and would lead their S.) (U. Griffey, l. 492, 11 How. c. 13 In v. Conrad lays Supreme Court down rule that 779, L. Ed. having rehabilitating not been made statements, discrediting impeaching prior or in state time precedent principal appear on ments, do proclaimed competent. follows the rule case The our England states. This is the number following adopted Brazier’s Case, cases: 1 in the rule Stolp 439; 10 Pearl, Peters, v. P. Ellicott 444; East C. Legere State, 111 368; v. Tenn. 541; Ill. v. 68 Blair, Caddy, v. 123; 1 Cold. 15 S. v. Morrow, Queener (N. Hackley, Y.) Ewing 23 50; Wend. v. 167; D. Robb v. 76 Mass. 312; Jenkins, 485; Com. Utah, 16 v. Keith, People, 287; Ill. Matter 119 Hesdra, v. Waller l. c. 188 Mass. The Boston, N. Y. Griffin Appeals Plach v. Ball, Mo. Court St. Louis question and App. same reached discussed 389, present rightly so. The case is think conclusion. We Maggard, distinguished 250 Mo. 335, from State prior point rehabilitating statement impeaching statement. of time to complains evi of the admission in Defendant II. clothing by the at the time worn deceased dence shooting. In Porter, says, that for the such court, J., l. 777, c. S. W. Walker, COURT MISSOURI, SUPREME OP *10 demonstrative evidence was admissible, °f within the discretion of the trial court, ciotMng?n prove
connect the accused the with crime, identity the of the deceased, the nature the any light or throw relevant wound, on a material matter appear at issue. It must, however, that the discretion present was not abused. In that and the case, case, question identity no about the of the the deceased, fatality. wound, nature location, its character or any light upon see cannot it could We how throw relevant any material matter at nor issue, how the exhibition of clothing jury before the could have tended to connect accused the crime more than another. The doc- tor’s evidence located the as well as its size wound, only course. The of the effect exhibition of the cloth- ing jury. towas inflame the We think the 'court com- permitting mitted error in jury. the exhibition of it before the III. Defendant contends that Instruction on8, self- properly defense, is erroneous and does declare the law. This instruction “that states law self-defense emphatically necessity, the law of is and does Self-Defense. noj. right impiy the of attack.” This is am- conveys biguous.. jury may it to the If one not at- being attacked, without first then there tack is no fault jury may gather If on the other hand in it. its prohibiting meaning an attack, assailed, as defending then think himself, a means of we it misleads jury. Capable interpreted, so we think ambiguity error.
Complaint, regarding said is instruction,. further following: any made of the “Nor will avail in case difficulty sought party’s is or induced where voluntarily own willful or where he into it, enters act, peril may imminent, . . matter how progress . become affray, during . . . and no one any justified using necessary more force than is Vol. 299] get repel of an rid assailant or to an assault made ’’
him. excerpts ambiguous,
We think the
extending
above
the vice
portions
to the whole instruction. The above
Hopkins,
were commented on in
IY. Defendants that the court erred in refusing right imperfect to instruct the on their *11 subject nicely self-defense and gauging on the of perfect imperfect amount of force to be used in or self- testimony defense. The for the State tend-. gave ec^to that show defendants the first Seífmefense. provocation brought difficulty on the language, of offensive use that 'then the de point Creed with ceased struck Bob club. To his this testimony fails to an or assault, actual threat merely the defendants, toward the ened, deceased, but of vile language. shows the use names and offensive striking The next act related evidence is the Bob of or in on the head the face, Creed deceased, policeman’s according club. We then to the find, State’s pushing shoving Bob Tom Creed evidence, passage through the to the rear deceased room. Ac testimony cording of we find defense, deceased the, through using passage his club to force Bob Creed asking to the rear and Tom Greed room, deceased not up. just hit to lock him Bob, The above tends to show that Bob brought argument, Tom Creed about but fails attempted act or show felonious committed on their about, part bringing of After before the use the club. difficulty, was evidence to the that effect defended from a Creeds themselves felonious attack. involving right imperfect Therefore an instruction of MISSOURI, COURT OF SUPREME incomplete given. should have been [State self-defense or Hopkins, Mo. 288, 126; 213 W. S. v. Roberts, (same case), 217 S. W. Roberts 669.] 242 W. S. imperfect right either the or
“Where
of self-defense
pos
assailing party
self-defense is involved and
might
defendant
that the
reason
sessed
an instrument
great bodily
ably
capable
doing
deadly or
consider
suspect
grounds
has
reasonable
to fear
harm, and
its
required
consequential
is not
the defendant
nice
use,
gauge
ly
defending
the amount
force to
used in
requirement
good
legal
only,
is that
himself. The
faith
perfected judgment.
there
and does
demand
We
instruction
have
an
em
think the court should
fore
Hopkins,
principle.
bodying
[State
V. The defendants did not take the witness stand. they attorney anything Neither nor their said or did admitting they, could he constru~edas or either of
them, shot or wounded deceased. The court Admitting giving part then committed error Crime. seven, instruction which reads: "The de shooting wonnding, fenda~n~tsadmit the but claim self-defense," acted in for the burden was on the prove State to be~ond a reasonable doubt that defendants *12 Vaughan, [State or one of them shot deceased. v. 141 514, 521.] Mo. l. c. by defendants, VI. Instruction F was asked jury may
effect, that the consider uncommunicated threats by against tending deceased Robert Creed as explain the conduct of deceased. This instruction should not have been as it was an unwarranted comment upon evidence, singling giving out and prominence portions. Uncommunicated undue to certain Threats. subject, gen- The court covered the in its jury instruction, eral that the could consider all the facts arriving and circumstances in at its verdict. We think Yol. APRIL TERM, y.
State Goodson.
the court did not err in
it.
refusing
Cruts,
[State
Mo. 107; State v. Edelen, 288 Mo. 160; State v. Adkins,
Mo.
Burton v. Holman,
For as much as the foregoing errors deprived de- fendants of a fair and impartial trial, we reverse and remand case be in retried accordance herewith. Bailey Higbee, concur. (7(7., PER CURIAM: The opinion of foregoing Davis,
isC., hereby adopted as the opinion court. Walk- er, J., concurs; E. Blair, J., David P. and White, J., con- cur in paragraphs 1, 2, 3, 5, and the result.
THE STATE v. FENTON N. GOODSON, Appellant. Two,
Division June opinion, 1. ABORTION: Information. The information set out charging having produced miscarriage defendant with o£ a pregnant by instruments, good woman use of held uphold both form and substance and sufficient to a conviction of manslaughter. Body: 2. EVIDENCE: Headless Identification. The evidence offered sufficiently, the State in this case was substantial warrant finding by body a that the headless of a colored woman floating lake, found a the severed head found in under- lake, originally body brush near the constituted the of the woman upon having whom defendant was convicted of committed an abortion. Decapitation
-:3. Cause of Death: or Abortion. Where head- body pregnant floating lake, less woman was found upon the evidence indicated that an abortion had been committed her, say State’s witness that what could death, opinion caused her in their either was caused decapitation abortion, an is not sufficient to convict manslaughter. appear defendant Even if it an should produced, charged, abortion was which the burden is the crime prove still remains State to abortion was neces- *13 299 Mo.—21.