188 Mo. 387 | Mo. | 1905
On the 16th of October, 1903, the prosecuting attorney of Ray county, Missouri, filed an information against John Stebbins and William Evans, in words and figures as follows, omitting caption: “George W. Crowley, prosecuting attorney within and for Ray county, Missouri, informs the court that John Stebbins and William Evans on the 15th day of October, 1903, at Ray county, Missouri, in and upon William M. Hill, unlawfully and feloniously did make an assault and $4.90 lawful money of the United States of America of the value of $4.90, of the money and personal property of the said Wm. M. Hill, unlawfully and feloniously did rob, steal, take and carry away; against the peace and dignity of the State. ’ ’ The information was duly verified as the law directs.
The defendants were arrested on the same day and duly arraigned and entered a plea of guilty, which was subsequently withdrawn, and a plea of not guilty entered.
The evidence tends to show that William Hill, at the time mentioned in the information, was a resident of Caldwell county, and came to Eichmond, Missouri, on the 15th of October, 1903, reaching there about five o’clock in the afternoon. The evidence tends to show that he had ten dollars when he left home that day, out of which he paid his railroad fare from Cowgill to Lawson, fifty-five cents, and from Lawson to Eichmond, sixty cents, and that he bought his dinner at Lawson. Somewhere about'six o’clock that evening he went to a saloon known as the ‘ ‘ Twin Hells, ’ ’ and while there he met the defendant Stebbins, who after taking a drink at Hill’s expense, suggested that Hill treat one Evans, a friend of Stebbins, which Hill declined to do. After visiting several saloons, at each of which Evans would generally turn up, Hill and the defendant Stebbins visited a house known as “Pearl’s.” Here again Evans appeared, and after staying there for something like an hour and drinking more beer, about two bottles, Hill and the defendant Stebbins started back to town. Hill testified that after they had proceeded a short distance Stebbins made a demand upon him for two dollars, which Hill declined to give him. Evans appeared on the scene about this time and upon Hill refusing to pay Stebbins, “the lie” was passed between them and a fight ensued. Hill testified that he was struck in the face and his eye blackened and he was knocked down, and that Stebbins or Evans, he did not know which, took his pocket book out of his left pants pocket and about five dollars. The marshal and night watchman testified that they saw Stebbins, Hill and Evans together on the street that night and that they were all drinking. Further evidence shows that they had sev
Charles M. Bull testified he was deputy constable and deputy sheriff at the time, and assisted in the ar.rest of Evans and the defendant Stebbins. They made the arrest about one o’clock in the night. Hill identified Evans and Stebbins as the parties who robbed him. He testified that he found the pocket book which Hill
The bartender at Hammer’s saloon testified that the defendant and Evans came into the saloon that night about 11 o ’clock and went into the wine room and ordered some beer for which Stebbins paid; they drank a glass apiece. That they left the saloon by the back door. Bull testified further that the defendant said the purse had been cut in two; that he and Evans went into the wine room of Hammer’s saloon and divided the money they had taken from Hill. He testified that at the time defendant made the statement in the prosecuting attorney’s office, he had been drinking and was pretty drutik, both he and Evans, but that the defendant did not seem to be too drunk to know what he was talking about. Evans staggered some, defendant did not; that no promises were held out to Stebbins to get him to' make the statement and no threats were made and he was told that what he might say would be used against him. The statement was made out in the presence of this witness and signed by the defendant, and it was read over to him, and that he said that it was true.
Evans did not make a statement.
On the part of the defendant, he testified in his own behalf that he had lived in Richmond since he was a child three years old, that his business was mining coal; he lived with his mother and father; that he was a single man, but had been married once. Stated that he met Hill, the prosecutor, on the night of the 15th of October in the saloon; that Hill invited him to take a drink; they went out and went into Bohannon’s saloon and Hill called for two beers; that Evans came in while they were drinking, and he told Hill that Evans was a friend of his, and asked him to invite Evans to take
Evans testified in behalf of the defendant and corroborated his story as to the fight about the dollar which defendant claimed Hill promised to give him.
Various witnesses testified that defendant’s gen
Various errors are assigned for the reversal of this judgment and they will be noted in the order of their assignment.
I. It is insisted that the first instruction given on behalf of the State is erroneous and does not declare the law relating to robbery in the first degree.
The contention of the learned counsel for the defendant is that the words ‘ ‘ and find that the same was taken” should have followed the words “value whatever.” This objection to the instruction ignores the fact that the jury was expressly required to find that the defendant “took” money from the person of Wm. M. Hill, the prosecutor, and that the same was the money and personal property of said Hill; that the defendant took the same by force and violence to the person of said Hill with the unlawful and fraudulent intention of depriving said Hill of the ownership thereof, and by converting the same to defendant’s use. The instruction required the jury to find all the elements of robbery in the first degree, and is not fairly open to the criticism made upon it.
II. The court did not err in instructing the jury that drunkenness could not justify, excuse or mitigate the offense of the defendant.
In introducing evidence as to the intoxication of
III. Error is predicated on the seventh instruction given for the State. That instruction was in the following words:
“With, reference to the paper offered in evidence purporting to be a confession of the defendant of the commission of the crime charged against him in the information, the court instructs the jury that it is a rule of law founded in reason that a confession of a defendant, when voluntarily made, is evidence against him, because common experience proves that a man will not, without motive for so doing, confess facts to his disadvantage unless they are true. Such confessions, however, should be strengthened and supported by facts and circumstances corroborative of their truth; and in this case if the jury believes from the evidence that the defendant made such alleged confession to the prosecuting attorney and other officers having him in custody and that the same was freely and voluntarily made, then you should take such confession into consideration in making up your verdict. On the other hand, if you believe that at the time said alleged confession was made the defendant did not have sufficient mind or memory to comprehend what he was saying or doing, whether such confession was the result of intoxication or weakness of mind or both, or that the same was made by inducements held out to him, or promises which operated upon the mind of the defendant in the hope of escaping punishment, or any other inducement amounting to threats, fears, or promises, and that from such inducements the de
In connection with this objection to this instruction counsel earnestly insists that the alleged confession in writing was erroneously admitted in evidence. Indeed, the admissibility of this confession is the most important question in the case.
Whatever may be the rule in other jurisdictions, it is now the settled law of this State that it is the duty .of the court to determine as a preliminary question whether the confession was voluntary before permitting it to go the jury. [State v. Patterson, 73 Mo. 695; State v. Hopkirk, 84 Mo. 278.]
Prima facie the confession was admissible, and unless it was shown to have been obtained by promises of clemency should have been received in evidence; but it is urged that the defendant testified that he was induced to make such statement or confession on account of statements of the prosecuting' attorney that he would only be prosecuted for drunkenness and fighting, and that if he would tell the truth about it he would get off for a fine of $7.50. The trial court pursued the approved course in making the preliminary investiga-' tion of the circumstances in which the confession was made before permitting it to go the jury. It was ruled in State v. Jones, 171 Mo. l. c. 406, that the fact that the defendant testified that he made the confession under a promise of discharge, or through fear of a mob,' did not overcome the prima facie case, and the testimony of the officers. We are satisfied that ruling was correct. Otherwise, it matters not how clear it might appear to the trial court that no improper inducements were held out to obtain the confession, all that would be necessary to exclude it would be for the defendant to take the stand and testify that he was induced to make it through fear or hope of clemency held out to him. We think the rule announced in State v. Brennan, 164 Mo. 510, to the effect that it is the province of the
In State v. Hopkirk, 84 Mo. 284, this court, through Sherwood, J., said: “The preliminary question of the admissibility of confessions, is one which belongs alone to the trial courts, and unless it he made plain that manifest error has been committed in this regard, the admission of such confessions cannot be held reversible error by this court.” Now, in this case while it is true the defendant testified to facts and circumstances from which it might he inferred that he did not understand the consequence of signing the paper which was introduced in evidence against him, yet the State’s witnesses testified that he talked intelligently and did know what he was saying and doing at the time, and that he himself dictated the statement in their presence and that the same was written down by the prosecuting attorney also in their presence, and was read over to him and he signed it and he said it was all right.
Under these circumstances we think the confession was properly admitted in evidence, and it was for the jury to say whether the testimony of the State’s witnesses was true on the subject of obtaining the confession or whether the testimony of the defendant was correct. [State v. Moore, 160 Mo. l. c. 460.]
Having admitted the confession, instruction numbered seven was all that could be desired by the defendant. By it, the jury were left free to find .whether' this confession was freely and voluntarily made, or whether the defendant had sufficient mind and memory to comprehend what he was saying and doing at the time, or whether it was obtained by inducements held out to him of escaping punishment. While the confession was not rendered inadmissible by the fact that the prosecuting attorney overstepped the hounds of
IV. It was in the discretion of the court to require the jury to be withdrawn during the preliminary hearing of the evidence as to the admissibility of the confession, and it is clear that no reversible error was committed in not having sent the jury out while this evidence was being heard. No request of that kind was made by the defendant and no objection to the jury remaining in the court room was made. The point is not before the court for review.
V. As to the other instructions, they fully cover all the law of the case and were especially liberal to the defendant.
We have carefully noted all the assignments of error and we find no ground for reversing the judgment, and it is accordingly affirmed.