171 S.W.2d 718 | Mo. | 1943
Lead Opinion
The jury found and the evidence shows that in the early morning of October 3, [719] 1941, Robert Lee Robertson, armed with a shotgun, and his accomplice, Kendall Morris, armed with a pistol held up the mistress and inmates of a house of prostitution *160 in St. Louis and took $35.00 from Dorothy Burke, the mistress. For his participation in the "holdup" Robertson was found guilty of robbery in the first degree and sentenced to fifteen years' imprisonment.
Dorothy Burke did not report the robbery to the police but on November 21 when Robertson was arrested he admitted that he had held up some people at 3930a Olive Street but did not know their names. On November 23rd the police brought Dorothy Burke to the police station and she identified Robertson as one of the robbers and a photograph of Morris as the other one. The police officers did not take a written statement or confession from Robertson but instead had Dorothy relate, in his presence, how the robbery was committed. As she related the events of the robbery the police would ask him whether what she said was true and he would answer that it was. Or, as she told some fact of the occurrence the police would then have him relate the same facts. When Dorothy and the officers testified, especially the officers, they related Robertson's oral statements or admissions.
The defendant did not testify but his wife and his mother did. In so doing they gave evidence of an alibi.
The court instructed the jury, in the usual manner, on robbery and also gave the customary cautionary instructions. In addition the court gave a separate instruction on alibi and one covering the problem of whether the oral statements as testified to by the police were voluntary. The court also gave instruction No. 6 which is as follows:
"If you believe and find from the evidence that the defendant made any voluntary statement or statements in relation to the offense charged in the information after such offense is alleged to have been committed, you must consider such statements alltogether, and in the light of the circumstances under which youmay believe they were made and determine whether such statement or statements were voluntary or involuntary. The defendant isentitled to what he said for himself, if true, and the State is entitled to the benefit of anything he may have said against himself in any statement or statements proved by the State. What the defendant said against himself, if anything, the law presumes to be true, unless negatived by some other evidence in the cause, because said against himself. What the defendant said for himself, the jury are not bound to believe, because it was said in a statement or statements proved by the State, but the jury may believe or disbelieve it as it is shown to be true or false by the evidence in this cause; it is for the jury to consider, under all the facts and circumstances in evidence, how much of the whole statement or statements of the defendant proved by the State, the jury, from the evidence in this case, deem worthy of belief." *161
In his motion for a new trial the defendant makes but two assignments of error. In one of these he vigorously and in detail assails the giving of this instruction as a comment on the evidence. He quotes from the instruction and says its practical effect is to force a defendant to testify whether he wants to or not. He says an oral confession is coerced, testified to and admitted in evidence and that no more importance should be attached to it than any other evidence and "yet the instruction . . . singles out `what he has said against himself' . . . or if he does not (testify and deny it) the jury is informed in effect that they must believe `what he says against himself as true.'"
Even though the propriety of giving such an instruction at all has often been questioned (because, regardless of whether the statements or admissions testified to are both favorable and unfavorable to the defendant, such an instruction is a comment on the evidence by the court, State v. Thomas,
In State v. Johnson,
State v. Duncan,
The Duncan case fits the instant case exactly. When the police testified to the oral statements or admissions made by Robertson they did not relate one single fact or statement favorable to him or in his interest. The statements they testified to were all very much against him and if he ever made any statements from which a favorable inference could be drawn in his behalf it was not developed. In such *163
a situation there can be no question but that the instruction is a comment on the evidence by the court because it directs the jury's particular attention to certain parts of the state's evidence and states the presumption of law or the inference of fact to which that evidence gives rise and at the same time calls upon the jury to weigh the defendant's evidence on the same subject when there is none. 3 Wharton, Criminal Procedure, Secs. 1646, 1736; [721] State v. Stewart,
Because of the error noted the defendant is entitled to a new trial and the judgment is accordingly reversed and remanded.Westhues and Bohling, CC., concur.
Addendum
The foregoing opinion by BARRETT, C., is adopted as the opinion of the court. All the judges concur.