State v. Schnurr , 285 Mo. 74 ( 1920 )

Under an indictment charging him with the crime of receiving stolen property, defendant was tried in the Circuit Court of St. Louis, found guilty and his punishment fixed at two years' imprisonment. Defendant duly perfected an appeal.

The learned Attorney-General has confessed error in the giving of Instruction No. 2, which undertook to define the word "knowing." Upon examining this instruction we find it to be identical with the one condemned in the recent case of State v. Ebbeller, 282 Mo. 57, 222 S.W. 396. For this reason the case must be reversed and remanded.

Appellant also complains of Instruction No. 4, which undertook to declare the law concerning the weight to be given extra-judicial statements of the defendant. The instruction fails to use the word voluntary. In other words, it allows the jury to presume as true any statement which they may find that the defendant may have made against himself without regard to whether the statement was voluntarily made or made under fear or duress. In the present case defendant claims that his alleged confession was made under duress, and there was some evidence tending to support this theory.

Where there is an issue of fact as to whether the confession was voluntarily made and the court undertakes to give an instruction on the subject it should cover the entire law on the subject and should not omit therefrom, as was done in the instant case, the question of whether or not the confession was voluntarily given. This we think the better rule and the one which has the better logic supporting it. [State v. Stebbins,188 Mo. 387, l.c. 398; State v. Thomas, 250 Mo. 189, l.c. 214 et seq.] This error can be corrected upon the retrial of the case.

The further contention of appellant that instruction four was erroneous because it was a comment on the evidence was ruled against appellant's contention in the recent case of State v. Wansong, 271 Mo. 50, l.c. 60. We see no reason for changing the ruling therein made.

Other errors raised by appellant are not such as will likely occur upon a retrial of the case and it becomes therefore unnecessary to discuss the same now.

For the reasons given above the judgment is reversed and the cause is remanded. All concur.