*1 (2d) Nagle, Appellant. v. Maurice W. S. W. 596. The State Two, 15, 1930. Division November *2 J, O’Sullivan for appellant. Francis *3 Purteet, Attorney-General, and Don Assistant Shartel, Stratton respondent. Attorney-General, for HENWOOD, By an information filed in Circuit Court of C. County, Nasello, Messino, Tony
Jackson Carl John Mangercino jointly charged three others with the murder Smith, .City, H. James a traffic officer in Missouri. Kansas Sever separate taken, and, jury trial, ances were at a found this de guilty degree pun fendant murder the first and assessed his imprisonment penitentiary ishment at life. for He was accordingly, appealed. [Companion sentenced cases heretofore by this court Nasello, 442, decided are v. 325 Mo. State 30 S. (2d) 132; (2d) Messino, 743, 325 Mo. 30 W. 750, S. Mangercino, (2d) State Mo. S. W. 763.] n alleged Smith, murder officer evi- With reference substantially 9:20 dence adduced the State as follows: About building in the occupied by of June several men entered Company the Home Trust on east side of Walnut Street, streets, City, between Eleventh Twelfth in Kansas Mis- shotgun, up” souri, and, with-revolvers and sawed-off “held employees company officers trust in- robbed that coupons $19,000, money stitution of about and interest United Liberty progress, Bonds. States While was in standing of a Buick seen in driver’s seat coach automobile Street; company in front of the trust on Walnut headed north Upon leaving company, trust robbers entered the Buick coach, then rapid was driven north on Walnut Street at a *4 speed, occupants, brandishing revolvers, rate of its in number, seven shotgun gun, firing a a sawed-óff and machine and numerous shots charge in Officer Smith in the air. was of traffic at the intersection streets, and and, of Eleventh Walnut when his attention was at- by shots, tracted these he left his station in middle the of the inter- rapidly section ran or walked south on Walnut Street about fifty feet, coach, the in Bfuick approaching direction where a shotgun he was shot three sawed-off times with one the of occupants fell, mortally wounded, of the Buick coach. He and died in evening day. six o’clock the of that Nasello was of one company the men who entered the in robbery, trust and aided the Mangercino. among occupants and he and the of the Buick robbery. coach left the the driving as it scene of Messino was the proceeded north on Buick coach as Walnut Street. After the passed safety Buick the zone at coach the intersection of Eleventh Walnut'streets, “safety it was that the discovered zone stand- down, and, nearby, nickel-plated ard” had been knocked a auto- up officer. picked door and handed to a mobile handle occupants Shortly robbery, the a coach six seven Bnick with or streets, where stopped Charlotte the intersection of Eleventh and auto- occupants got four of out. Two of entered another the them Street, the mobile which was driven on Charlotte other north on Char- two entered another which was driven south automobile Street, Street. As Eleventh lotte the Buick coach started east on shotgun occupants got a dropped it, and one the out of up picked Then, coach driven east shotgun. the the Buick day robbery, partly-burned on Eleventh On Street. the after the pieces trust coupons of some of from the com- the interest taken pany by masks, shotgun, robbers, revolvers, two several a a gun house, in a shotgun machine in some shells were found vacant City. the southeast section of Kansas trial,
The State did is no evidence not contend at the and there tending show, actually participated that defendant robbery or in killing theory the State of officer Smith. The of at the permitted trial was to use his that the defendant robbery company Buick coach the under- of the trust standing defendant) that he a of the loot. would share The following summary the State of the evidence adduced in support theory: robbery, of 14, 1928, On June and for prior coach, sometime a Buick defendant thereto, the owned kept and Messino a Chrysler roadster, at the owned Avhichwere Trafficway City. Mangercino Garage in Kansas Both Messino and drove the then,” defendant’s Buick the de- coach “now and fendant Chrysler drove Messino’s roadster “now then.” 'Mes- brought sino Trafficway Garage defendant’s Buick coach to night of 13, 1928, morning, and the next robbery, twenty twenty-five nine,” “about he minutes till Trafficway came to the got Buick Garage and coach. defendant’s fellow,” “Another 9:30 Italian, an was with Between nine and Messino. morning, employees Trafficway Garage one of the Chrysler delivered Messino’s defendant at Thir- roadster to the streets, teenth and response Jefferson telephone call “for it.” to a About 10:30 or garage eleven o’clock morning, Jeffer- son City Street Kansas couple days,” “for rented placed Buick coach therein, by a man unknown to the owner of garage. day, Later garage the owner of the discovered that padlock. door was locked awith After a news- paper story of shooting Smith, and'the in- officer *5 police formed officers garage. Buick coach in his bought padlock, day, Bunting Company. from the Hardware That night, when officers the Buick removed coach from garage, the out, windshield was door handle of the door on the
right radiator,” gone, side was there were “bullet holes over tags and it bore license Missouri.” These license numbered “3-8P7 tags coach, model,” were issued to the defendant “on Buiek in City. in The Missouri State License Bureau Kansas safety missing door in handle was the one zone at the found key intersection of A to the lock in Eleventh Walnut streets. key this padlock door handle and a on the door keys Jefferson on among Street were found the defend- person evening ant’s at 8:30 in arrested of the robbery. padlock key Another was found to possession of Messino. objections
Over Mr. R. Page, Prose- James cuting Attorney State, County, testifying of Jackson for permitted transcript jury stenographer’s read to the of his short- hand notes of a conversation had the defendant between Prosecuting Attorney’s) office about noon on June 1928. transcript Said as follows: reads
“The Page witness here reading from defendant as statement follows: “Q. you Are Nagle? Mr. A. Yes, sir. “Page: Now, Mr. Nagle, going am I you read statement you signed Department over to the if any- Police there is thing wrong any it, about mistakes in or any it, corrections that ought made, why, to be tell me we will them —and if make there anything wrong it, any about it, mistakes in corrections ought made, why, be tell me and we will make them. “Nagle: attorney? Will I an be allowed “Page: You anything know whether or there is wrong not
this statement without an attorney, you? don’t “Nagle: Yes, sir. Page, reading Nagle:
“Mb. from statement made Maurice W. “ Nagle. I ‘My twenty-seven years old, name is Maurice am my Apartments.’ am married and I at the live wife Charleston “Page: right? Is that “Nagle: Yes, sir. “Page: statement, is not It but where is the Charleston Apartments located? “Nagle: address, I know do the exact but is at not 13th and Jefferson. Page, again “Mb. from statement:
“ years I have known John about four ‘I have known year. Tony I Mangeracino I met about a think Balano about Tony last, August. 1928, gave I Night last before John Messino coach, car. car -is Buick use Master-Six permission job the car to be 27-40. me used on a He told Walnut model *6 understanding Street and it my that within to be twenty-four nest hours.’ “Page: right? Is that “Nagle: Yes, sir. Page,- again reading
“MR. from statement: “ ‘When he took the told car he to meet me 43rd and Thursday Blvd. Benton at ten o’clock. I was informed to Trafficway Chrysler call the Garage and have the roadster de- to me.’ livered Page: right? “Mr. Is that “Nagle: Yes, sir.
“Page: doing? striking You see what I am I am out the word ‘bank,’ right, that is isn’t it? “Nagle: Yes, sir. again Page, “Mr. reading from statement:
‘‘ ‘ brought Chrysler garage shortly The driver from the me car o’clock, nine I 9:15,,and believe it was went he back garage garage where the was.’ attendant “Page: you know Did attendant? “Nagle: only my kept No, garage car that brought my times had car several he me. “Page: Or nickname? Did ever hear his first name? you “Nagle: get spoken except word to him I have No, never a and drive it back. the car reading from Page, again “Mr. statement:
“ I restaurant ‘My wife went Sanderson’s on East 8th Benton Blvd. then to 43rd and and ate breakfast and drove Street up waiting drove, companion and a time Messino After considerable changing I my On cars Benton Blvd. in car. south on from the completely and a out my windshield on broken noticed the car hole. I sent though it was bullet dash, which looked as hole south companion drove Messino and my wife to town on‘a bus. Jefferson, parking on I drove car to 13th Benton and just Messino later' Jefferson, south 13th Street. side of the east apartment.’ to in front of came “Page: as if right, it? It sounds does doesn’t sound That front to the it to ‘came Look, changing I am unconscious. apartment.’ statement: reading from Page, again “Mr. “ apartment front came to companion and his ‘Messino He street. car off I had better informed me did, 1241 Jefferson.’ I garage, I rent suggested Thurman “Nagle: address, Mr. but positive about the not I am n says the address. that 1241 Jefferson statement: again Page, “Mr.
“ storage paid garage ‘I at the on the car week’s Hard- garage Bunting-Stone car and we drove backed the into the purchased padlock we drove back ware company asked door. When Messino placed lock on and I *7 receive gave I my me to understand that was to to use car he me "When being pecuniary reimbursement, stated amount mentioned. no my Jefferson 43rd and car 13th and from I of at went to out right door was broken Benton, the handle on I noticed Jefferson, 1241 garage at the car in put off. After we up. 43rd While we at car fixed would have the told me that he had, what and luck he changing cars I asked and Benton six o’clock I Messino about little.” met damn me, told “God Meyer’s and Johnny barbecue went out my I wife and got sandwiches.’ some
“Page.- you by Whom do Johnny? mean “Nagle: Messino. John again reading “Mr. Page, from statement: “ ‘We night. then came back apartment to the about 8:30 last my When we apartment walked into by we were met officers any and arrested. I did not part take actual in make holdup my this of own will, being statement free threats promises no made to me. Nagle.' “‘(Signed) Maurioe W.
“Page: you And then made short another statement that? “Nagle: Yes, sir, an additional statement. Page, “Mr. additional statement: “ ‘In addition to the statement to add made I want day 1928, that from I February, day May, the 24th of to the 31st given my City $800 was for the use of ear, was used in the holdup February money given by Bank 24th. on This me Broadway living John 1104 Messino at house I Avas at where time. “ Nagle.’ ‘(Signed) Maurice W.
“Nagle: by Keller- of that was dictated Most statement Officer strauss, I actual except part house. haven’t being holdup. knowledge my in car used the bank “Page: just it your girl as Nagle, you dictated statement to the happened ?
“Nagle: Yes, sir. by Nagle: “Statement dictated “ Nagle, years ‘Maurice W. 27 old, first being duly upon sworn his oath states: “ ‘My name Maurice Nagle. W. years I am 27 old married and live at the Charleston Apartments. In addition state- Iment made this morning, I want during period to add—That John given $800 5th, I March February from until Messino, my house at by John to me money given This Messino. time. at living Broadway I was where “ ” Nagle.’ ‘(Signed) Maubioe twenty- in question, testified: At time defendant years age, employed Supply seven the Western Auto Com- City, living pany Apartments at Kansas the Charleston City. Thirteenth and Kansas He away Jefferson-streets from City vacation, May from 12, 1928, Kansas June visiting Ellsworth, Kansas, with his wife’s relatives near and with his own City, Messino, relatives in Oklahoma Oklahoma. He not see nor did him, May 29, 14, 1928, talk to until alleged of officer murder Smith. He used Buick 13, 1928, night coach the of June employee it over turned to an Trafficway Oarage night, front, of the Charleston Apartments, purpose for the having the garage. taken to About *8 8:30 morning, Messino him, home, next called at his over the telephone, (Messino) told him that he going (the and to-use his defendant’s) Buick hours, coach for an hour half and a or two and (the defendant) suggested get Chrysler (Messino’s) that he his garage him (Messino) Forty-third roadster at the and meet at Street and Benton Boulevard about ten o’clock. hadHe never driven Mes- He garage, sino’s car before. called the home, from his over and, response telephone, his request, to Messino’s car de- livered him at his home 9:30 morning. to between nine that Eighth and He went and his wife to Sanderson’s Restaurant on for Street Forty-third breakfast, from there to Street and Benton Boule- car, where, vard, in after waiting Messino’s about fifteen minutes they Messino, exchanged for cars with Messino com- and “some panion.” It was then about ten or 10:15. He noticed the windshield car, and was out his asked Messino it. replied: about Messino you hurry, I “I am in a will tell about it when I come back to apartment.” He his car to his Apart- drove home in the Charleston ments, way, discovered and, on the that there was “a bullet hole Hpon reaching home, o’clock, his dash.” about eleven he parked ear on the east side of Jefferson his Within a Street. short thereafter, newspaper story time while he company shooting trust Smith, of officer Messino “Johnnie, He you came to home. said to Messino: did rob replied: car?” “No, (the bank with Messino sir.” He defend- (car) ant) police department said: “Let’s take this to then get explain, I am lot of because liable to into whole trouble down replied: “You explain there; ydu there.” Messino can’t anything anything you it. The less know don’t know about about it the that, you you (car) police' will be. If take off better station explain you happened it, can’t what to you your will brains out; and, if you explain, beaten do will be taken out on one of highways.” apartment these When left the noon, (Messino) said he care” would “take of the car. He defend- ant) saw never his car that. He remained at home until six the evening, o’clock in when Messino came back and took him and Myers’ his wife, car, Stand Swope Messino’s Barbecue supper. Upon Park ning, returning for to his 8:30 home about eve- disposition not arrested. He did know what (the defendant’s) made of his car. He did not rent the 1241 key Street, found, Jefferson where his ear was had and never padlock garage. found on door of that good
Numerous witnesses reputation testified the defendant’s morality industry, for honesty, law-abiding citizenship. pertinent Other will be proceedings evidence hereinafter noted. earnestly contends, Attorney- for the
Counsel defendant and the frankness, General, concedes, and, with commendable after a careful of the record, concluded, examination we have that the confession prosecuting attorney voluntary (cid:127)of the defendant to was not confession, and, therefore, not have should been admitted in evi- that, dence, down, with the confession stricken the evidence is not judgment sufficient the verdict and sustain conviction in this case. that, in be noted
I. It will conversation prose- between the attorney and the cuting prosecut- defendant on June
ing attorney merely read to the defendant the state- signed by police headquarters ments him at *9 before, the defendant and confirmed said they statements as were to him. read inquiry as preliminary competency
.On the to the of the confes- sion, judge except trial hear the refused to evidence as what to attorney’s prosecuting the occurred in office the at time of the con- prosecuting attorney versation between and the The defendant. that, testify evening from 8:30 in defendant offered to about arrested, 14th, 16th, June when he was until noon of about on June attorney’s prosecuting office, he was taken to the was when he by continuously police detectives, almost various officersand sweated him, hose, a beat him with rubber struck him a who kicked revolver, with blackjack, chair a squeezed and and and twisted his sleep anything him and let him testicles, and refused to let to have drink, him, to kill their to and threatened in efforts force eat or participated actually that he in the him to and the admit par- to inform them to others killing' of officer Smith as who and that, by ticipated perpetration crimes; of said means in the of said police mistreatment, coercion, forced, at torture, threats and nine headquarters 15th, sign on June the first statement about 15th, sign of and to the additional o’clock in June hay- day, in first statement sometime ing the afternoon of that without having said opportunity an and without to read said statements was him; 16th, he that, read to on June statements noon attorney’s headquarters office police prosecuting taken from to the actively by detectives, Kellerstrauss, two -Thurman and who had to- mistreatment, and coercion participated torture, threats that, imme- subjected headquarters; he police had been at diately attor- prosecuting before he office of the was taken into the by by that, questioned ney, unless, he Thurman was told by signed him prosecuting attorney, confirmed statements he detectives) police they (the take back headquarters, would him police headquarters him; that remained and Thurman “finish” prosecuting attorney’s throughout his defend- office ant’s) that, prosecuting attorney; at the time conversation with the sleep of and conversation, suffering from the lack of said he by injuries police officers upon inflicted him food from said signed by him detectives; he statements confirmed the by the police were to him headquarters, when the same read subjected be attorney, he would prosecuting afraid because to further mistreatment and torture at the hands of said if he do the defendant offered and detectives did not so. And officers upon commission of that, 18, 1928, motion, show on his June appointed, by judges of Court physicians one of Circuit And County, physical examination of him. of Jackson to make a testimony he, also, show, by physicians, of said offered to of two that, 21, 1928, they physical on made examination deep scalp jail, suffering two county and found him wounds, ecchymosis eyelids eyes,” “black an lower or both on side, rib left and numerous bruises abrasions broken on side his left his shins refusing consider to- hear judge of the trial action .clearly proffered erroneous the defendant
the evidence so
reason
prejudicial
“When there is
highly
to the defendant.
influence of
believe that
confessions
obtained
to
hope
judge to
hear
evidence
fear,
duty
becomes
con
go
jury.
Whether the
determine whether it shall
allows
degree
freedom which
were made
fessions
judge
question
deter
admission,
for the
preliminary
is a
their
Kinder,
in this State.”
long-settled
mine.
rule
[State
This is the
also,
Thomas, 250
See,
Mo.
l.
672
Howei^er, we have light considered the confession evidence heard and considered judge. prosecuting the trial The attorney, in testimony his concerning his conversation with the de- fendant, that, admitted when brought officerThurman the defendant office, into his 16th, noon on June “some defendant had blood on the left coat,” side of his eye and “one had an abrasion it;” over that he happened; did not ask the defendant what had present 18th, State, on June representing one when of the judges of the County Circuit Court of Jackson heard defendant’s motion appointment for the physi- of a commission of cians to physical make a him; that, during examination of course of that proceeding, “Nobody they (re- he said: denies that ferring to the codefendants) up.” defendant and his were beaten In answering question as to whether or made state- not he ment, he said: “I think they brought that is true —before were And, office.” customary if it asked “to have them up beaten they before got there,” “Apparently he said: someone had done something defendant) of that kind' before got A there.” photograph of defendant, taken in prosecuting attorney’s office on 16th, immediately June his before conversation prosecuting attorney, eyes, shows that face, under both was swollen discolored, were there numerous dark spots or stains on the coat, left side of.his on the left shoulder and the left side of the photographs collar. Other taken in county jail 20th, deep scalp show a wound at or near the crown of his head and numerous bruises and abrasions on his left side both and on of his shins.
This ample support evidence furnishes for the conclusion that the signed by statements police the defendant at headquarters on June 15th signed by were not voluntarily, but as the result of fear and intimidation. Powell, v. 258 Mo. 167 239, 559; S. W. [State (same v. case), State Powell 266 851; Mo. 180 S. W. State 294 Ellis, Mo. 952; Condit, S. W. Mo. Indeed, S. impression the record shows that such was the 286.] prosecuting- attorney judge. and the prosecuting trial attorney did not offer these statements as confessions made police headquarters 15th, defendant at judge on June trial said he would exclude “statements taken station” they “probably” involuntary. because were But, these statements were offered and admitted in evidence as part of the defendant’s conversation with prosecuting attor- ney 16th, on June when the they defendant confirmed then! a.s to him. read “Where a confession has been obtained under cir- involuntary rendering inadmissible, cumstances presump- tion subsequent exists that confession arose a continuance *11 before presumption prior influence, and must be overcome this of tbe con- The subsequent can be received evidence. the trolling confession presumed confession is produced prior the influence and evidence affirmatively shown, until cessation is continue its strong, very clear, presumption be or to rebut must overcome confession satisfactory; point, the if there is on this any doubt quite has been rule must be excluded.” O. J. This [16 722-723.] long time. uniformly jurisdictions for followed in this and other Jones, 631; State 478; Brown, 73 Mo. State v. State v. Mo. [See supra.] Ellis, supra; Condit, Rose'Shapiro, prosecuting Miss attorney stenographer, and his hear they any weapons exhibited nor testified that did not see prose- by the anyone during conversation between threats made effort attorney made no cuting but the State re- been had to show that the influences of fear and intimidation by such longer dominated moved, the defendant was no prosecuting influences, with at the time of his conversation requested attorney. nothing' is that the defendant There to indicate attorney. contrary, it On the prosecuting with conference prosecuting appears “brought” him to the that officer Thurman head- up” police attorney’s office after he had been “beaten prosecut- quarters, present and that officer Thurman appears attorney And it further ing defendant. “interviewed” the attorney confronted the defendant that, prosecuting when the headquarters, the defendant signed the statements attorney be- talking an refused, privilege of asked, attorney concerning these questioned by prosecuting fore statements. defend- presumed that the circumstances, it must be Under such and, attorney involuntary, prosecuting ant’s confession to the have been excluded. reason, it should for that II. brings This us to a consideration of evidence,, exclusive of the confession. substantially On evidence, the same relating robbery
the killing Smith, of officer this court affirmed the convictions of Mangereino (325 743, Mo. Nasello, Messino 30 S. W. (2d) 763), 750 and and the evidence amply su®cient support finding Nasello, 1° Mangereino coconspirators their used the defendant’s Buick coach perpetration automobile of the rob- bery, and that they fleeing from the scene of robbery said automobile at the time officer Smith was shot one of them. But, as already said, we have the State did not contend at trial, and there is tending show, no evidence that the actually defendant Smith. It
participated in the officer robbery killing or in permitted theory defendant at the trial that the State perpetration use his automobile defendant) share understanding with the would of the loot. *12 cir With case rests excluded, upon State’s confession circumstances, to only. cases, cumstantial In “the evidence such tend, other, must conviction,
warrant a be with each must consistent hypothesis prove only guilt, be consistent with not must every other but be with guilt, of defendant’s must inconsistent reasonably innocence.” including hypothesis of hypothesis, his in this yardstick, C. J. evidence Measured [16 1011.] In circumstances words, case falls all of the facts and short. other shown the evidence can be taken as true and Morney, v. nevertheless, charged. the crime State be innocent of [See companion True, 196 Mo. 93 S. close defendant’s 1117.] - exchange of ship robbery, his auto on the robbery, shortly shortly after mobiles with before and stranger’s garage of his in a the concealment automobile -of robbery, possession key at the time to that and his con strong suspicion participation arrest, of his his raise any show, by spiracy robbery, State failed to commit the but the perpetra evidence, was used substantial automobile knowledge consent. “Mere sus with his tion place evidence, picion, strong, supply however will not Jones, c. liberty Mo. l. is at life stake.” [State upon suspicion mere will not W. l. based And a verdict 369.] S. c. (2d) (Mo. 18 W. Sup.), S. permitted to stand. v. Perkins be [State (Mo. (2d) 647; MM 6; Sup.), S. W. State v. Matticker (Mo. (2d) urphy Sup.), 25 S. W. 79.] discovery has satisfied us that the review of the record Our very improbable, proof is against the defendant additional by remanding this case for nothing accomplished would be trial. another discharged. judgment is reversed and the defendant Davis and Cooley, concur. GC., foregoing, by HbNwood, C.., opinion
PER CURIAM:' The adopted Blair, J., White, J., P. opinion of the court. as concur; Walker, J., 'absent.