238 S.W. 457 | Mo. | 1922
Lead Opinion
Convicted of robbery in the first degree and sentenced to five years' imprisonment in the penitentiary, defendant appeals. The information charged that defendant at St. Charles, Missouri, on February 21, 1919, robbed one Frank J. Bull of seven dollars. Two points only are urged as the basis of the appeal:
(a) Appellant complains that he was prejudiced by the admission in evidence over his objections of a confession made by him on the ground that such confession was involuntary.
(b) And that having testified in his own behalf, the cross-examination went beyond statutory bounds.
Appellant and one Virgil Dale were apprehended shortly after the commission of the felony, upon suspicion that they committed it. Upon being searched a portion of the money taken from Bull was found in appellant's sock and the balance accounted for in having been spent by them in one of the saloons. A mask was taken from appellant and an extra cap from each of them. Upon these incriminating circumstances, the sheriff took them to the jail, where they were interrogated separately.
They confessed and it is claimed by them that a plea of guilty was to be followed by a parole. In accordance with this alleged agreement a plea of guilty was duly entered, whereupon the court assessed the punishment of each at five years' imprisonment in the penitentiary. Appellant and his accomplice then procured counsel and filed a motion to set aside the judgment and sentence on the ground that they had been misled and deceived in entering their pleas of guilty. They asserted that they had not obtained counsel, upon an agreement with the *112
prosecutor and the sheriff that they were to be paroled. Testimony on the issue raised was heard by the court. The court overruled this motion and an appeal was taken by both defendants. This court reversed the judgment and remanded the cause in each case upon the grounds "that defendant entered a plea of guilty under a misapprehension as to his rights in the premises and on account of being misled." [State v. Dale,
Upon the trial of this case appellant objected to any evidence of the alleged confession, upon the ground that same was involuntary. The objection was overruled and with corroborating evidence the case was submitted to a jury which returned the following verdict:
"We, the jury, find the defendant guilty of robbery in the first degree and we assess his punishment therefor at five years' imprisonment in the penitentiary."
Other pertinent facts will appear in the course of the opinion.
I. Appellant invokes the decision of this court on the former appeal as constituting the law of the case and conclusive on the same facts in the second trial. We have aFormer Appeal: right to compare this record with the formerDifferent Question. one (State v. Powell,
II. The trial court properly excluded the jury while he determined the preliminary question as to the admissibility of the confession made to the sheriff and prosecuting attorney. [State v. Patterson,
Whether a confession is voluntary or involuntary depends upon the character, age, sex, disposition and past experience of the accused (State v. Powell,
Appellant may have been misled into entering a plea of guilty and yet he may have voluntarily confessed his part in the crime, in which event his extra-judicial statements could be used against him and, if supported by independent proof of the corpusdelicti, he may be convicted. [State v. Cox,
Reverting to the record we find the following questions and answers propounded to and returned by appellant in his testimony:
"Q. Wasn't the statement made to you that it would be in your best interest to be a man and tell the truth about it? A. The only thing that caused me to sign it was what you told me, you would see that I got out on parole, and that you were one of my friends, and that's all that caused me to sign it; if it hadn't been for that, I wouldn't have signed it." *114
And again upon examination by the court:
"THE COURT: And agreed to plead guilty? A. Yes, sir, I was toreceive a parole if I signed the confession."
And upon cross-examination of Virgil Dale the following transpired:
"THE COURT: He said, you boys just as well go on and plead guilty? A. That was before this, after they got done questioning me and promised to get us on parole, if we pleaded guilty, and I asked him if I could get out that night, and he said, No, it was too late.
"MR. RUSSELL, counsel for defendant: Q. That's after you made this confession? A. Yes, sir."
There was other testimony tending to show that if promiseswere made to appellant it was after the alleged admissions and inconsideration that he would sign the confession and enter a pleaof guilty. That was the question adjudicated here in the former case.
"The law is settled now that a confession to be inadmissible must be made to an officer of the law, in consequence of improper influences exerted by him, and if no threat of harm or promise of wordly advantage be made by such official, or by the master of the accused when directly concerned, the confession is admissible." [State v. Phelps, supra; State v. Hopkirk,
No written or signed confession was offered in evidence. The sheriff and prosecuting attorney testified to oral admissions.
There was substantial testimony to warrant the court in submitting to the jury the question on the confession, and the court did this in five full and fair instructions, four of which were given at the instance of appellant. This was proper. [State v. Brooks, 220 Mo. l.c. 84.]
Counsel for appellant urges strongly here the case of State v. Powell,
The jury upon proper instructions necessarily found that there were no threats or promises made by the officers to compel the admission, and absent such threats and promises an admission or confession is admissible. [16 C.J. p. 721; State v. Brooks,
III. Appellant complains that he was subjected to a cross-examination of such nature as to deny him the protection vouch-safed by Section 4036, Revised Statutes 1919. Appellant in his own behalf testified that on the night of February 21, 1919, he was arrested and taken to jail and his testimony in chief was limited by him and his counsel to an effortCross-Examination. to show the involuntary nature of his admissions. The cross-examination by the State's attorney was limited strictly to the subject-matter covered by the examination in chief, which was proper. [State v. Barrington,
The matters complained against by appellant do not constitute error, and the judgment of the lower court is accordingly affirmed. Railey and White, CC., concur.
Addendum
The foregoing opinion by REEVES, C., is adopted as the opinion of the court. All of the judges concur.