State v. HigdonState v. Higdon
- Reporters:
- , ,
- Before:
- Bohling (en banc) (per curiam)
The larceny, according to defendant‘s statement, occurred after 1 a. m. September 4, 1945. Defendant heard the police were looking for him and about 7:30 or 8 p. m. of September 4 he voluntarily surrendered himself at the police station. Questioned by the police about 9 a. m. September 5, defendant denied his guilt. Defendant had been attentive to one of the waitresses in the sandwich shop and Mrs. Clary knew him. She saw him between 6 and 7 p. m. September 5 at the police station. He first told her he had not committed the offense but soon asked her: “Well, if your money were returned to you, Frances, would you agree not to prosecute me?” When Mrs. Clary did not answer, defendant did not say anything more. September 6, about 11 a. m. defendant told the officers at the station how he committed the offense; and his counsel now contends that, since
A confession of guilt is presumed to be voluntary until the contrary is shown. State v. Menz, 341 Mo. 74, 92, 106 S. W. 2d 440, 449[11] citing cases. If, however, defendant interposes an objection on the ground it was involuntary the State has the burden at the preliminary hearing. State v. Williamson, 339 Mo. 1038, 1048, 99 S. W. 2d 76, 81[9].
Instructions on issues not supported by any evidence tend to authorize the jury to rove in reaching their verdict. Without evidence they are without a guide in their deliberations on the factual feature of the issue. An instruction giving the jury a roving commission to disregard admissions of guilt could not prejudice defendant; but it is proper to keep the jury within the law and the evidence and, hence, the instructions within declarations applicable
State v. Gibilterra, 342 Mo. 577, 585, 116 S. W. 2d 88, 94[5], states the rule: “If the issue is submitted to the jury and all the evidence shows the confession was voluntary, the court need not instruct thereon, even though requested to do so.” State v. Ball (Mo.), 262 S. W. 1043, 1046[7], holds, absent evidence, the instruction should not be given. Ah Fook Chang v. United States, 91 Fed. 2d 805, 809 [6, 7]; Raarup v. United States, 23 Fed. 2d 547, 548[3], certiorari denied, 277 U. S. 576, 48 S. Ct. 559, 72 L. Ed. 996; 23 C. J. S. Criminal Law, p. 797, n. 42; 53 Am. Jur. Trial, Secs 579, 734; Annotation, 85 A. L. R. 870, and West‘s Digest, Crim. Law, Key No. 814(16):
Note the following cases:
In State v. Hershon, 329 Mo. 469, 485, 45 S. W. 2d 60, 65[1-4], defendant testified privately before the court that he had been brutally treated by the police and denied making a written confession. He did not take the stand and there was no like testimony before the jury. Held: It was not necessary to instruct the jury to disregard defendant‘s alleged statements if they were not voluntary.
In State v. McNeal (Mo.), 237 S. W. 738, 740[1, 2], a convict, charged with murder, gave a statement to the prosecuting attorney after having been in solitary confinement in the punishment hall of the penitentiary for nine days, giving his reason for wanting to talk that he could not endure standing on the concrete floor of punishment hall, being an old man and perhaps on account of his rheumatism. Held: Error was not committed in refusing an instruction to disregard his statements if not voluntarily made as his confession was presumptively voluntary and no inference contra arose from his detention in isolation for about 10 days and his release the day after his statements.
In State v. Ellis (Banc), 354 Mo. 998, 193 S. W. 2d 31, defendant was arrested December 14 and held outside the county and until December 17 before confessing, in violation of
The court also stated (l. c. s. 1003 and 33): “Directly in point is State v. Menz, 341 Mo. 74, 106 S. W. 2d 440, where we held that the failure to release a person held for questioning within twenty hours after his arrest under Section 4346, no charge having been filed, did not render any statement or confession made thereafter presumptively involuntary.”
These authorities establish that the mere fact of one being in custody beyond the twenty hour period is, without more, no substantial evidence that a confession thereafter given is involuntary. This harmonizes with the statement in State v. Aitkens, 352 Mo. 746, 755, 179 S. W. 2d 84, 89[5]: “A confession is not presumptively invalid merely because it is taken by an officer while the accused is in custody. See many cases cited in 9 West‘s Mo. Digest ‘Criminal Law,’ Sec. 519 (3). There must further be some improper influence exerted by the officer.” The fact of detention would operate upon the mental processes of an accused more forcibly than its legality or illegality, and, as considered, we perceive of no valid factual reason, absent evidence, causing a confession voluntarily given while detained to become involuntary merely because the detention was illegal.
In the instant case, the instruction was not required under Missouri cases because: 1st. There was no evidence or evidence upon which to base an inference that defendant‘s confession was involuntary. 2d. All the evidence on the issue affirmatively established that defendant‘s confession was voluntary and, if a presumption might arise from an illegal detention (which our cases say may not arise), in this case it disappeared in the light of the affirmative facts in evidence.
For several reasons there is no merit in defendant‘s charge of error in refusing his request made in connection with the examination of a witness during the progress of the trial for a subpoena duces tecum for the police files for the purposes of “rebuttal and impeachment.” All the testimony was that defendant‘s statements were oral. The witness involved did not undertake to tell what was in the police files. She never saw them. She did not know. There was not a scintilla of evidence that defendant made a written statement. No written statement or written report of his oral statements were used or referred to by any witness in giving his testimony. Consult 23
The jury were authorized under the instructions to find defendant guilty of burglary and larceny or to find him guilty of one and acquit him of the other or acquit him of both. He was found guilty of larceny and sentenced to two years’ imprisonment. This being the minimum sentence under the evidence, defendant is in no position to complain that part of the prosecutor‘s argument bearing no punishment was prejudicially erroneous.
Other matters in the brief are insufficiently developed to call for discussion. This, perhaps, may be said of the last issue mentioned. However, we have inquired into them as we understand the brief and the motion for new trial and find them without merit.
The judgment is affirmed.
PER CURIAM:—The foregoing opinion by Bohling, C., in Division Two, is adopted as the opinion of the Court, en Banc. Douglas, Ellison and Leedy, JJ., concur; Clark and Hyde, JJ., concur in result; Conkling, J., and Tipton, C. J., dissent.