페이지 이미지
PDF
ePub

court, except such as shall have been expressly decided by such court."

This is a part of the general law applicable to all appeals; but it would not be seriously contended that said last-quoted section would prevent a defendant from objecting for the first time in th court to an indictment which does not charge the defendant with any crime, even though the trial court had made no ruling on the sufficiency of such indictment. State v. Levy, 119 Mo. 434, loc. cit. 437, 24 S. W. 1026; and State v. Meysenburg, 171 Mo. loc. cit. 27, 51, 71 S. W. 229. Section 5231, supra, having made it the duty of the trial court to give to the jury all necessary instructions, without suggestion or request from defendant, and having further cast upon said court in felony cases the duty to grant a new trial when such necessary instructions are omitted, said section completely supersedes the general law prescribing how errors of that kind shall be preserved and considered.

Our General Assembly may throw around the life and liberty of the citizen whatever safeguards it deems proper, even though such safeguards are inconvenient and render it more difficult for the state to enforce the criminal laws. By enacting section 5231, R. S. 1909, the Legislature has made it necessary, before the life or liberty of a citizen is taken away by judicial process, that the jury to which the case is submitted shall be correctly instructed on all essential "questions of law arising in the case." Therefore it is just as necessary to so charge the jury as it is to present a valid indictment or information against the defendant. The only difference, so far as the defendant is concerned, is that, when the indictment or information is fatally defective, he can secure a reversal of the judgment, without calling attention to the insufficiency of such indictment or information in his motion for new trial, while, if there be a failure to instruct on some essential question of law arising in the case, he must give the court an opportunity to correct such error by a motion for new trial, in which such error is specifically pointed out.

It was well understood when the opinion in the Conway Case was written that it conflicted with the views expressed in many other prior decisions of this court, particularly the cases of State v. McCarver, 194 Mo. 717, 92 S. W. 684; State v. Espenschied, 212 Mo. 215, loc. cit. 223, 110 S. W. 1072; State v. Goldby, 215 Mo. 48, loc. cit. 57, 114 S. W. 500; State v. Wilson, 225 Mo. 503, loc. cit. 518, 519, 125 S. W. 479; and State v. Tucker, 232 Mo. 1, loc. cit. 15, 133 S. W. 27. In so far as the opinion in the case at bar conflicts with the conclusions reached in the cases last cited, they are expressly overruled. For the failure of the trial court to properly instruct the jury on the question of reasonable doubt, its judgment is reversed, and

WALKER, P. J., concurs. FARIS, J., concurs in opinion filed.

FARIS, J. I fully concur in the result reached in the opinion of my learned Brother BROWN in this case; but I cannot agree with the views expressed in paragraph 3 of his opinion so far as said paragraph and the inference contained in paragraph 2 of said opinion hold that either the amendment of 1889 or that of 1901 to section 5231, R. S. 1909, has relieved the defendant from the necessity of interposing any exceptions to instructions given by the court, or to the failure of the court to instruct upon all questions of law arising in the case, or upon any one of such questions.

Prior to 1901 the clause of said section 5231 pertinent to this discussion read thus: "Fourth: The court must instruct the jury the case which are necessary for their inforin writing upon all questions of law arising in mation in giving their verdict; which instructions shall include, whenever necessary, the subjects of good character and reasonable doubt; and a failure to so instruct in cases of felony shall be good cause, when the defendant is found guilty, for setting aside the ver dict of the jury and granting a new trial."

In 1901 the Legislature prefixed to this clause the words "whether requested or not," so that in my view the necessity, as a condition precedent to review, no longer existed, requiring defendant to either prepare and offer an instruction, or to specifically request the court to instruct, upon such issues in the case as were bottomed upon questions of law arising in the case which are necessary for the information of the jury in giving their verdict, or upon the questions of reasonable doubt and good character, whenever necessary.

Prior to 1901, when the amendment above mentioned was made, it was the law in this state, and in every other state where the common law prevailed, that exceptions to instructions had to be taken at the time the court gave them, or neglected or refused to give them, as the case might be, in order to preserve for review objections thereto in criminal cases, just as in civil cases. State v. De Mosse, 98 Mo. 344, 11 S. W. 731; State v. Foster, 115 Mo. 451, 22 S. W. 468. I shall not burden these views with long citations of authorities; but the cases upholding the above statement as to the absolute necessity of preserving by exceptions taken an objection to instructions refused or given, or neglected to be given, as a condition precedent to review, will be found collated in 12 Cyc. 666 and 667, and 12 Cyc. 815 and 820. Unless the addition of the four words above quoted has served to change the rule, this is still the law. In what wise is it possible for so slight a change of verbiage to have so farreaching an effect?

To go back just a little ways and pick up the thread of the argument, it may be said to be so well settled in our practice as to be fundamental that matters of exception can only

alive for appellate review by a motion for a and cases cited, supra; State v. Gordon, 196 new trial. State v. Libby, 203 Mo. 596, 102 Mo. 185, 95 S. W. 420. Likewise we held, S. W. 641. Likewise it is well settled that erroneously, I think, that no valid objection instructions given or refused, or the failure to the failure of the court to instruct "upon or neglect to give proper instructions in a all of the law in the case" would avail, uncriminal case, are pure matters of exception, less defendant specifically embraced in his oband can be preserved for review only by ex-jection and exception the precise point in ceptions, and by incorporating them into a which the instructions given by the court bill of exceptions. State v. De Mosse, 98 Mo. were lacking. State v. Barnett, 203 Mo. 658, loc. cit. 344, 11 S. W. 731; State v. Marshall, 102 S. W. 506; State v. Weatherman, 202 Mo. 36 Mo. 400; State v. Ray, 53 Mo. 345; State 6, 100 S. W. 482. v. Pints, 64 Mo. 317; State v. Williams, 77 It will be noted, therefore, upon an exMo. 310; State v. McDonald, 85 Mo. 543; amination of the cases that, when the amendState v. West, 157 Mo. 309, 57 S. W. 1071; ment of 1901 was made, this court was uniState v. Huff, 161 Mo. 459, 61 S. W. 900, 1104. formly requiring timely exceptions touching No one will contend that what we call for instructions as a condition precedent to reconvenience the "record proper" embraces in- view. It cannot, I think, be successfully constructions given in a case, either criminal or tended that the Legislature, merely by the civil. It seems to me that it is utterly impos- addition of the words "whether requested or sible to take the view that instructions pre- not," either specifically or impliedly abrogatserve themselves in the record, without ex-ed the necessity for such exceptions. The ceptions made and saved thereto, unless we Legislature had an opportunity of so saying say that in a criminal case instructions are a in express words when they amended this part of the record proper. It is fundamental statute in 1901. Since they failed to say it and manifest that they are not. Without a either expressly or by far-fetched implicaproper bill of exceptions, kept alive by a tion, we ought not to say it for them. A caresufficient motion for a new trial, neither this ful reading of the clause under discussion court nor any other appellate court, where will show that while the failure to instruct the common law prevails, would ever for a upon all questions of law arising in the case moment consider error arising upon an in- and necessary for the information of the struction, unless a plain statute so command- jury, and upon the subjects of good character ed. This court, long prior to the amendment and reasonable doubt, whenever necessary, of 1901 and the addition of the provision that is a good cause for setting aside the verdict a request for instructions on the matters | of the jury and for granting a new trial, it is therein specified should no longer be neces- not said in that clause that it is good cause sary, had held that exceptions to instructions or any cause for our reversing the case and must be preserved in order to make objec- | remanding it. This view is suggested in the tions touching them reviewable upon appeal, learned opinion herein by Judge BROWN. as an absolute condition precedent, without This court, in such a case as this, is but a which no review here could be obtained. court of errors, and, as Judge BROWN well This court, from 1901 until the case of State says, we have neither the power of setting v. Conway, 241 Mo. 271, 145 S. W. 441, had aside verdicts nor of granting new trials. uniformly so held. It had also held likewise We can only order the trial court to do these from the very beginning up to the date of the things. This view still leaves us in a case amendment of 1901. No well-founded doubt like this a court of errors, and we have formuthrough all the years, until the Conway Case lated by our decisions, or the Legislature has was decided, ever troubled this court upon formulated for us in statutes enacted by it, this question, and we uniformly refused to certain rules by which the errors urged before take heed of objections in any wise affecting us are preserved for our review. I cannot instructions when such objections were urged read in the clause of section 5231 under dishere, unless they were preserved in a bill of cussion any intent whatever on the part of exceptions, with specific objections and ex- the Legislature to change in any wise any ceptions urged thereto, which bill of excep- of these general rules by which objections to tions and specific objections and exceptions instructions are preserved for review. The to the instructions themselves were kept alive amendment of 1901 merely changed the law by a sufficient and timely motion for a new so as to render unnecessary any request for trial. State v. Grimes, 101 Mo. 188, 13 S. W. an instruction upon any and "all questions of 956; State v. Patrick, 107 Mo. 147, 17 S. W. law arising in the case, which are neces666; State v. Inks, 135 Mo. 678, 37 S. W. 942; sary for their [the jury's] information in givState v. Nelson, .225 Mo. 551, 125 S. W. 505; ing their verdict," including reasonable doubt State v. Kretschmar, 232 Mo. 29, 133 S. W. and, when necessary, good character. As to 16; State v. Tucker, 232 Mo. 1, 133 S. W. 27; these matters, the trial court had put upon State v. Urspruch, 191 Mo. 43, 90 S. W. 451; him the duty of instructing sua sponte corState v. Sykes, 154 S. W. 1134; State v. Fin- rectly upon the law. If he failed to do so, ley, 193 Mo. 202, 91 S. W, 942; State v. Har- or if he erred in so doing, it was his duty to ris, 199 Mo. 716, 98 S. W. 457; State v. Jones, set aside the verdict and grant defendant a 191 Mo. 653, 90 S. W. 465; State v. Morgan, new trial. If he failed to so instruct, and

proper motion for a new trial. The defendant ought not to be permitted (and in my view the clause under discussion does not in its present form permit, nor has it ever expressly or impliedly permitted or invited the defendant) to lie in wait for the court. It might well be that instructions covering all the phases of the law involved, and upon good character and reasonable doubt, were actually prepared by the court, and yet not given for some physical reason, as for that they were lost or misplaced. An exception timely lodged would ordinarily remind the court to remedy the inadvertent default or neglect, or enable him to supply an instruc"The instructions given by the court seem tion prepared, but mayhap lost from the files, fairly to cover the issue joined between the and thus avert a mistrial. I agree with state and the defendants, and, if they did not, there is no statement in the motion that the what is said in State v. Weinberg, 245 Mo. court failed to give all proper and needful in- loc. cit. 575, 150 S. W. 1069, and quoted in structions. So that, if the court did fail to in- the opinion of Judge BROWN, defining what struct the jury upon all questions of law arising in the case which were necessary for the instructions are comprehended by the clause information of the jury in giving their verdict, under discussion, and as to such no request exception should have been saved at the time either in writing or orally is necessary to be such failure occurred, and the point should have been preserved in the motion for a new made, but when the court does not give such trial, and this for the reason that exceptions in instructions, or gives them erroneously, the criminal causes occupy the same footing as do defendant is not relieved from the necessity those in civil matters, and can only be preserved of lodging a general exception to the court's by the same methods of procedure. De Mosse, 98 Mo. loc. cit. 344 [11 S. W. 731]; error. As to instructions upon what have State v. Foster, 115 Mo. 448 [22 S. W. 468].' been called "collateral matters," that is,

v.

verdict of the jury and grant defendant a new trial, it then upon appeal becomes our duty (if, according to other rules centuries old, and not affected by the slight amendment by the words "whether requested or not," the matter was properly saved for our review) to order the court nisi to grant a new trial. At the time of the several amendments of the clause in question the rule as to the necessity, both for an exception taken at the time of giving the instructions, and for a motion for a new trial preserving and keep ing alive such exception, is well stated in the case of State v. Cantlin, 118 Mo. loc. cit. 111, 23 S. W. 1095, where it is said:

For these reasons, I cannot agree, either that a defendant in a criminal case is entitled to a review here of an instruction given or refused, or of the failure of the court to give an instruction, unless he lodged a timely exception with the trial court, and unless he preserved such exception in his motion for a new trial. I am not saying that he should request specific instructions upon such matters as are set out in section 5231, that is to say, as to any "questions of law arising in the case which are necessary for the information of the jury in giving their verdict," or as to the subjects of good character and reasonable doubt, when the latter issues are properly presented by the evidence. I also agree that the questions of reasonable doubt and presumption of innocence should always be given to the jury, but I am saying that the attention of the court at the time the instructions are given to the jury ought to be called to his alleged failure or neglect to instruct upon any of the above matters, not necessarily specifically, nor by preparing or presenting a written instruction, but by a general exception-for example, for that "the instructions as given by the court are not the law of the case," or that "the instructions given do not embrace all of the law of the case," or that "the court has not instructed upon all questions of law arising in the case, and which are necessary for the information of the jury in giving their verdict"—or in such other apposite way as to call the attention of the trial court to his failure to comply with the statutory mandate herein discussed; and

such matters as are not embraced in the definition above referred to, my views are that a specific request must be made; that the defendant should by his counsel either write them and offer them to the court with a request that they be given, or that he should specifically request the court to give the same and save a proper exception to the court's refusal, and keep his exception alive by a proper motion for a new trial, before reversible error can be bottomed upon the alleged error of the trial court. Neither in my opinion does it avail to go back to the amendment of 1889, where it was first provided that the failure of the court to instruct "upon all questions of law arising in the case" should in a felony case be good cause for setting aside a verdict of guilty. It may be conceded with all frankness that a de parture as between the rule in misdemeanors and felonies is logically inferable from the language of the amendment of 1889 and the

rule as to nondirection in misdemeanor trials which has since been uniformly followed. But, barring a legislative pronouncement to this effect (and there is none anywhere), does this obviate the rule requiring exceptions to be lodged in the trial court as a condition precedent to the review of any and all matters not of the record proper? State v. Stevens, 242 Mo. 439, 147 S. W. 97.

Strictly speaking, what place have instructions in a bill of exceptions, unless they get into the bill by virtue of the fact that exceptions are saved to them? How else do they legally and properly become parts of the bill of exceptions, unless they be excepted to?

and general-very general-exceptions were | bery during which decedent was killed, and that timely interposed by defendant to the in- the brother had at the time requested accused structions given by the trial court. These to come to a place and receive a part of the proceeds of the robbery, evidence that the objections and exceptions were kept alive in brother was not present and could not have the motion for a new trial, where it was spe- taken part in the crime was admissible to rebut the evidence of motive of accused. cifically urged that:

"The court erred in not instructing the jury as to the presumption of innocence of defendant and the law in relation thereto."

In my view the many safeguards provided by law and practice for a defendant's safety considered, the fact that in every felony trial, if defendant be too indigent to hire counsel, or too friendless to have counsel hired for him, it is the duty of the court to appoint counsel to represent him, and the fact that by divers provisions of our proIcedure he is allowed vast advantages over the state render any other view dangerous as calculated to provide holes for the escape of the guilty, rather than shields for the protection of the innocent. For this reason, I concur in reversing this case; but I do not agree in what is said in paragraph III thereof, and so much of it as would obviate the first degree, and appeals from a judgment necessity of saving exceptions to instruc-fixing his punishment at imprisonment for tions given or refused, or neglected to be life. given, as a condition precedent to review. In so far as the case of State v. Conway, 241 Mo. 271, 145 S. W. 441, is in conflict with the views expressed herein, upon the questions of the necessity of saving exceptions to instructions, and of preserving such exceptions in the motion for a new trial, that case should be followed no longer.

Defendant was convicted of murder in the

[blocks in formation]

2. CRIMINAL LAW (§ 531*)-CONFESSIONSEVIDENCE OF INVOLUNTARINESS.

Evidence held to show that a confession by accused, made while under arrest, was not voluntary and must be excluded.

Cent. Dig. §§ 320-331; Dec. Dig. § 166.*]
[Ed. Note.-For other cases, see Homicide.

STATE v. POWELL. (No. 18055.) (Supreme Court of Missouri, Division No. 2. the commission of said crime. May 26, 1914.)

5. CRIMINAL LAW (§ 531*)-CONFESSIONS— INVOLUNTARY AND FALSE.

Where the state, relying on the confession of accused, showed that accused did not want to incriminate his brother, but did incriminate him, though he was not guilty, proof that the that the confession was not voluntary and was brother was not guilty was admissible to show false.

Accused may introduce evidence to impeach or discredit his confession, admitted in

4. HOMICIDE (§ 166*)-MOTIVE-EVIDENCEADMISSIBILITY.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1212-1217; Dec. Dig. §

531.*]

Appeal from Criminal Court, Jackson County; Ralph Latshaw, Judge.

Featherstone Powell was convicted of murder in the first degree, and he appeals. Reversed and remanded for new trial.

The evidence on the part of the state tends to prove a conspiracy between defendant and three or more other negroes to rob the Missouri Pacific freight office at Kansas City, Mo., on December 1, 1911. In robbing that office one Albert Underwood, a cashier therein, was murdered. The evidence further tends to prove that Underwood was killed by one Arthur Brown, and that, while defendant was not present, he was in or near the building where the tragedy occurred, and that he aided and abetted Arthur Brown in

The written confession of defendant introduced in evidence reads as follows:

"Statement taken in the office of Captain E. B. Stone, commanding. State of Missouri, [Ed. Note. For other cases, see Criminal County of Jackson-ss.: Featherstone Powell, Law, Cent. Dig. §§ 1212–1217; Dec. Dig. 8 of lawful age, being first duly sworn, upon his 531.*] oath deposeth and says: I am 24 years old. I 3. CRIMINAL LAW I live at was born in Jackson, Tennessee. (§ 538*)-CONFESSIONSRIGHT OF ACCUSED TO CONTRADICT OR IM- 726 New Jersey avenue, Kansas City, Kansas. I work at the Missouri Pacific Railway Company in their freight office, as janitor. Thursday, November 30th, as I was passing state line on my way home I met Arthur Brown and Duke at the state line. They want

PEACH.

evidence.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1227-1229; Dec. Dig. 8ed to know where I was going and I said I 538.*1 was on my way home. They wanted to know what chance to hold up cashier's department at Missouri Pacific freight house. I told them that they had better know what they were doing, cause it would make it hard on me, as I am janitor in the building and have been there for the last seven years. After this conversa

At the trial a signed confession of defendant Powell was admitted over his objections, to which ruling exceptions were duly saved. The admission of this alleged confession, and the refusal of the trial court to permit the defendant to impeach the same by proving that parts of it were untrue, constitute the alleged errors upon which the defendant re

lies for reversal.

Where the state relied on a confession by accused, which showed that accused's brother was present and actively participated in a rob

tion I went home. The next time I saw Arthur Brown and this man Duke was on Friday afternoon. They were up in the Missouri Pacific local office December 1st, about 5:40 p. m. I was standing in the front of the toilet room door when Arthur Brown came to me and said we are going to pull that job off now that we were talking about the other day. Arthur Brown and Duke had a revolver apiece. Shortly after, Halsey Powell, my brother, came back to the toilet room and when he got to us Arthur Brown and this man Duke says they were going to pull off that job to-night and Halsey said that if you go by Mother's to-night, I will give you some of the money. These three men went downstairs immediately after that. Before leaving me to go downstairs they told me to get down in front and as I knew the special agents of the Missouri Pacific I was to watch for them and if I saw any of them coming I was immediately to give the signal. then took a bucket and broom from the office and came downstairs and went out on the sidewalk at the southeast corner of the building. I taken up my position there to watch for Missouri Pacific special agents just outside of the front door of the office. My brother, Halsey Powell, and my brother, Cottrel Powell, were both standing at this door. Immediately inside of the office door were the following men known to me as Ossie Brown, Arthur Brown, and the man they called Duke. I was directly outside with the bucket and broom and when I saw everything was clear I told them all right, and then they entered the cashier's department and shortly afterwards I heard a pistol shot, and immediately after the shot was fired Ossie Brown and Halsey and Cottrel came running out of the front door and I went in the hall. I don't know how Arthur Brown or this man

I

Duke left the office. I then went into the freight house and Albert Underwood was laying inside the freight house on the floor and some of the boys picked him up and lays him in the back room in the cashier's office on the table. Last night when the officers asked me if I knew who the parties were that pulled off that job I would not tell them. I did not want them to know that my brothers, Halsey or Cottrel or myself had anything to do with it. I make this statement of my own free will, without any threats or promises being made and knowing that it will be used against me, if I am prosecuted. "Featherstone Powell. "Witnesses: S. W. Zicka foose. Edward B. Stone. W. H. Boullt. Jas. J. Raftery. C. M. Phillips. J. D. Greenlee.

"I make this statement in the presence of Capt. E. B. Stone, Chief of Detectives S. W. Zicka foose, Detectives J. J. Raftery, J. D. Greenlee, W. H. Boullt, Special Agent Missouri Pacific, and C. M. Phillips, Special Officer Missouri Pacific. Featherstone Powell.

"Subscribed and sworn to before me, a notary public, within and for the above state and county this 4 day of December, 1911.

"Guy C. Cooley, Notary Public. [Seal.] "My commission expires 2/13/12. "Witnesses: S. W. Zicka foose. Edward B. Stone. W. H. Boullt. Jas. J. Raftery. C. M. Phillips. J. D. Greenlee."

The evidence of three witnesses who were in the freight office when the robbery and murder occurred tends to corroborate the defendant's written confession, except that defendant's confession recites that there were five men in the freight office participating in the robbery, while the witnesses for the state saw only three. No one saw defendant at the time of the robbery and murder. He testifies that he was on the second floor of the building at that time, while his confes

building. As the cause must be reversed because of the admission of improper evidence and the exclusion of proper evidence, a more detailed statement of the facts is unnecessary. Defendant is a colored man 24 years old, and for some years prior to the commission of the crime of which he was convicted was a janitor in the freight office in the Missouri Pacific Railway Company, located on the first floor of a building in Kansas City. Mo. He was arrested and locked up the day following the robbery, and on the second day was taken to the office of Edward B. Stone, captain of police, and questioned by Capt. Stone and eight other police officers and detectives regarding his knowledge of and complicity in the robbery and murder.

With one exception the witnesses agree that the interrogation of defendant began about 2 p. m. Sunday afternoon and continued until 11 p. m. that night with very slight intermissions.

Defendant was interrogated alternately by the nine officers and detectives, and at 11 p. m. consented to confess. His confession, written on a typewriter, was completed and signed between 12 and 1 a. m. that night. When offered in evidence, this confession was objected to on the ground that it was not voluntarily made, but was the result of intimidation; that it was ob tained by placing defendant in such a protracted mental strain as to overcome his will, and by promises made by Capt. Stone that it would help him to confess. Defendant, testifying in regard to the confession, states: That he was not only accused and questioned for a long time, but was struck on the head and kicked on his private parts by the of ficers before he consented to make a statement. That the officers told him it would be lighter on him if he confessed. He further testified that two confessions were written at the instance of the officers, and when he signed the first confession he wrote the words "not guilty" following his name; that officer Stone tore up that confession and threw it into a brass cuspidor, and then they obtained the final confession, which was introduced in evidence.

The testimony on the part of the officers who secured the confession is that the defendant was not subjected to any personal abuse or mistreatment. The salient parts of their evidence is as follows:

Special Agent Boullt testified that defendant was very nervous and excited and wanted to shield himself and his brothers; that it did not require all the time the officers were present to persuade him to make the confession; that they remained with him waiting for another party to be brought in who was accused of the same crime.

S. W. Zickafoose, chief of detectives, who was present and participated in securing the confession, stated: That defendant did not seem to be excited. That defendant was reluctant to make a statement because he

« 이전계속 »