252 Mo. 72 | Mo. | 1913
Defendant was charged jointly with John Burns, alias Podgy Burns, and James Kennedy
Milasch Vlado and Nicholas Vlado, father and son, gypsies, lived on O ’Fallon street in St. Louis, the former at No. 1525 and the latter at No. 1523. They were both married and there was another married son of the father who lived with him. Milasch and his son Nicholas each had about $4000. About six thousand dollars of it was in American gold coin, and the remainder was in foreign coin of various countries. It was kept partly in an old piece of hose over three feet long, and partly in some bags, all wrapped in canvas and kept on the bed in the house of the elder Vlado. The.wife of Nicholas Vlado had a nephew, George Nicholas, about seventeen years of age, who came from Chicago to St. Louis in March, 1912. When George Nicholas arrived in St. Louis, his uncle Nicholas Vlado was on a trip to Chicago. While in Chicago Nicholas Vlado learned that George Nicholas had stolen some money from a gypsy in Chicago and had gone to St. Louis. On arriving home
Will Powers kept a saloon at Fifteenth and Biddle, close to the home of the Vlados.
On the night of March 19, Milasch Vlado and his son Nicholas were intiated into the lodge of the Knights of Pythias and did not return until some time after midnight. The wife of Milasch Vlado and her little granddaughter slept that night in the bed with their heads on the canvas in which the' money was kept. About half past eleven o’clock that night George Nicholas, James Kennedy, Podgy Burns, Ben Shaw and Will Powers were all at the saloon of Powers. The question in issue in the trial was whether the defendant was in company of those who went to Vlado’s house and got the money. George Nicholas-testified that he informed Raftery, Shaw, Burns and Kennedy that the Vlados had money and that they all went to Vlado’s house, found the doors open, went in, and went to. the bed where Vlado’s wife was sleeping and got the money. They carried it to Powers’ saloon and scattered it on the floor, Powers being present; and that they all “grabbed” for the money, and thus the division of the booty was made. George Nicholas and the defendant went into hiding. George Nicholas was brought back from Cincinnati by the officers of the law. The defendant, knowing that the police were after him, surrendered to the sheriff and gave bond for his appearance and was released. The police promptly rearrested him.
The gypsy boy, Burns, Kennedy and the defendant were all brought together by the police who were in charge of them, and Sergeant Campbell testified as follows as to what then occurred:
“Mr. Shaner: I will ask you what you asked Kennedy in reference to this stealing, and what Ken-*77 nedv said? A. Kennedy said that they had went to this place-
“Q. That who went? A. That he, Burns, Raft-ery and the gypsy hoy, and that Raftery, and I dis-remember who else, went up in the house — Burns, I think it was — and this fellow had a knife, Raftery, and then, they returned and had the gypsy boy, cursing him, says, ‘God damn you, that money isn’t there.’ They took the gypsy boy up then and he located the money for them. Kennedy said they brought the money from there over to the saloon, Raftery helping carry the money, helped to carry it down the steps, and that Raftery and Burns took the hose and dumped it out on the floor and the proceeds was divided there, and that Raftery had taken one of the sacks and went out of the side door of the saloon; then they had left. And Burns quoted it pretty near word for word the same way.
“Mr. Shaner: What did Raftery say in answer to that, or what did you ask him? A. I asked Raf-tery if that was true, what Kennedy and Burns had just told, and he said they were ‘God damn rabbiting sons of bitches’ and that there was no ‘rabbit’ in him. He says, ‘ Go on with their rabbiting; let them rabbit. ’ I asked him what he meant by ‘rabbiting;’ he said he was doing no snitching.
“Q. What did he say further in reference, to what he got, if anything?
“Mr. Gernez: I object to that as leading.
“The Court: What, if anything, did he say about this money? A. I asked him how much of the proceeds he got; he said he got $150 for his share and he knew where the rest of the money was. I think, as near as I can remember, that is the words he used; and there was no rabbit in him, go on and give him the third degree. He turned his head to one side and says, ‘Give me the third degree, you sons of bitches. I know where it is at, and I’ll tell you nothing.’ I then*78 touched him on the shoulder and'told him to set np straight, that nobody was going to abuse him, or give him the third degree, to set up straight - in the chair and answer what questions were asked him.
“Mr. Shaner: Is that all that took place, or do you remember anything else? A. That is about as much as I remember.”
The foregoing testimony as to admissions made by defendant was objected to on the ground that the defendant was under illegal arrest when the statements were made and that such statements were made under duress: The objection was overruled.
On the trial the defendant testified that he took no part in the robbery, and that he did not get any of the money. He admitted in his testimony that he was present when the money was- scattered on the floor of the saloon. With reference to.what occurred in the division of the money, he testified as follows:
“Q. When they came in what did they do? A. They first set the money down on the table and that woke me up; I was in a half doze, my head down on the- table, and Shaw says this is too bright a place for to split this money up here; so he walked behind the counter and the rest of them followed him.
“Q. What happened then? A. And I walked over myself. I walked over to him and Shaw says, ‘Why, you’re not in on this, Baf. Tou are not in on this money at all.’
“Q-. What did he do when he said that? A. He jumped right back and pulled out a nickel plated forty-four Colt’s and stuck it to my stomach and says, ‘Ton back out of here.’
“Q. What did you do? A. I hesitated a minute, and he says, ‘If you don’t go I’ll make it good.’ That is the words he said.
“Q. Had you been -with those people or- any of them up to this gypsy house? A. No, sir, I had not.
*79 “Q. Or taken any part in taking that money? A. No. sir.”
There was evidence on the part of defendant tending to prove that he did not go with the others to the honse of Ylado.
The instruction given fully covered the law in the case, and no criticism is made of them. The defendant requested the court to give the following instruction which was refused:
“The court instructs the jury that the mere fact that defendant may .have received a portion of the property alleged to have been stolen does not warrant the jury in finding the defendant guilty.”
In the course of his argument to the jury counsel for the State called attention to the fact that the persons indicted with defendant did not testify for him, when the following occurred:
“Mr. Gernez: I except to the remarks of the circuit attorney, and now ask that the court declare a mistrial.
“The Court: The court will not declare a mistrial, but the court will instruct the jury to disregard the reference of the circuit attorney to the other witnesses who are jointly charged with the defendant.” ■Counsel for the State then proceeded with his argument as follows:
“What is there to base a reasonable doubt on? It is true the defendant denies that he went over there -and took part in this larceny, but he does not deny the proposition that he did get $150, and that he had some more of it hid out.
“Mr. Gernez: I object to those remarks of the circuit attorney.
“The Court: Mr. Shaner, the defendant was not required to testify with reference to any portion of this case and you will not comment on any portion of the case that he did not testify about. I will ask the jury to disregard • that statement.
*80 “Mr. Shaner: Gentlemen, I do not desire to comment on the case further. I will leave the case with you. ”
I. The court did not err in refusing defendant’s requested instruction on the subject of receiving stol-
The rule in regard to instructing on a lower degree of the crime charged does not apply here. The situation here is the same as if the defendant had selected any other fact in the case and had told the jury that such fact, of itself, would not justify a conviction. Such procedure is condemned by this court in State v. Williams, 136 Mo. 293; State v. Cantlin, 118 Mo. 1. c. 111, and State v. Mitchell, 229 Mo. 1. c. 697.
II. There was no fact tending to show that the admissions made by defendant were not made volun-
“And according to the weight of authority, a confession, if otherwise admissible, cannot be rejected for the reason that the officer to whom it was made held the prisoner in custody upon an invalid process, or without any process or legal right.” [6 Am. & Eng. Ency. Law (2 Ed.), 539.]
The mere fact that two officers who had arrested a boy thirteen or fourteen years old, without a warrant, upon suspicion of having committed a crime, af
“It appeared that in point of fact no inducements were held out by the officer, nor threats made to the prisoner; but the conversation was free and voluntary upon the part of the prisoner. Indeed, the contrary is not pretended in argument; but it is claimed that, as the prisoner was not taken before a magistrate within twenty-four hours after his arrest by the officer,, the custody in which he was.at the time of the conversation referred to was an illegal custody, and that what was said, while in such custody is for that reason only inadmissible as evidence against him. We think, however, that this position finds no countenance either in principle or authority. ’ ’ [People v. Devine, 46 Cal. 46.] In Balbo v. People, 80 N. Y. 484, the court said: ‘ ‘ The fact that the arrest was illegal had no relevancy, if the confession was voluntary. The people are not precluded from availing themselves of the voluntary confession because the officer or person to whom it was made was exercising an illegal restraint over the prisoner at the time.”
We have not been able to find a single case in which it has been held that the mere fact that the prisoner was held in illegal custody would invalidate an admission or confession made while in such custody, in the absence of other showing that the statement was involuntary. The statement of the police officer clearly shows that the defendant made the statements attributed to him without any fear of the police, and without any promise from them.
Moreover, this court has recently held in State v. Larkin, 250 Mo. 218, that counsel for the State has the
judgment is. affirmed.
The foregoing opinion of Roy, C., is adopted as the opinion of the court.