State v. Hopkirk , 84 Mo. 278 ( 1884 )

Sherwood, J.

The defendant,- together with one Thomas Brownfield, was indicted for the murder of one John E. -Wells, in Henry county, on Friday, the 29th day of February, 1884. The murder was committed at night, its motive being robbery. A severance was had and each of the indicted parties was accorded a separate-trial, resulting in the conviction and sentence of each. Many points common to both cases were passed upon in Brownfield’s case, already decided, and consequently will not be further noticed.

I. In relation to admitting certain persons to form the panel of forty, from which the petit jury was chosen, it is enough to say that of that number those who were objected to at the time the panel was being formed and exceptions as to their being accepted saved, none of them had formed them opinions except from minor talk in the neighborhood and newspaper reports ; they, there ■ fore, do not .come within the rule laid down in Cictter’s case, 82 Mo. 623, and were competent to form the panel from which the jury was afterwards chosen. As to Hemphill, it is claimed he was a witness in Brownfield’s .case, and section 1896 of the statutes, is invoked, which provides that no witness in any criminal case shall be sworn as a juror therein, if challenged, etc. This section has no application to Hemphill. He was not a witness in the cause, knew nothing about it, and had only been summoned as a witness on Brownfield’s application for a change of venue, but never sworn. As to Ogg, White, Nash, and Rice, no exceptions were saved as to their being placed on the panel. On this point, therefore, the ruling must be against the defendant.

II. The admissibility of the confessions will now be considered. In endeavoring to arrive at a correct conclusion on this point, considerable embarrassment has .been experienced in reading the evidence, in consequence pf the very poor fashion in which this transcript has been made out; capitals and punctuation are for the most •part ignored, and sentences are telescoped into other sentences in utter disregard of all ordinary rules. The prelirainary question of ’ the admissibility of confessions, is one which belongs alone to the trial courts, and unless it be made plain that error manifest has been committed in this regard, in deciding the question of fact as to whether those confessions were made in circumstances which forbid their being received in evidence and going to the jury, the admission of such confessions cannot be held reversible error by this court. State v. Patterson, 73 Mo. 695. And the reason is obvious. It is just like the determination of any other preliminary question of fact by the court, as for instance, an application for a change of venue, where the testimony as to prejudice of the people is conflicting. In all such cases the court seeing and'hearing the witnesses obviously has better means of judging on a question of fact than an appellate tribunal, where the witnesses are neither seen nor heard, and where their testimony is often bunglingly and imperfectly reported. Fife v. Com., 29 Pa. St. 429. In passing upon the action of the trial court and in reversing its rulings in this particular, it must plainly be made to appear that the confession was induced by the flattery of hope or the torture of fear, that the inducement to the confession stood toward the confessor in the relation of cause to effect, that some promise or threat was made which eventuated in the confession, and prevented that confession from being what the authorities term “ voluntary. ”

It is by no means necessary that the confession be spontaneous, otherwise no confession ever made would be receivable. It is only where the confession may be said "to be extorted, dragged reluctantly from the breast of the prisoner, through exciting his hopes or practicing on his fears, by some promise or some threat, that the confession subsequently made is inadmissible, and a mere •adjuration to speak the truth, no threats or promises being employed, or if it be apparent that there was no connection between the promise or threat and the confession, or that trick or artifice or intoxicating liquors were used to induce a confession, the confession will not be rejected. State v. Patterson, supra; State v. Phelps, 74 Mo. 128; Levison v. State, 54 Ala. 520. In cases like the one at bar, the real question, as stated by Keating, J., is whether there has been any threat or promise of such a nature that the prisoner would be likely to tell an untruth from fear of the threat or hope of profit from the promise. R. v. Reason, 12 Cox. C. C. 228; R. v. Jones, Ib. 241; 1 Wharton’s Cr. Law, sec. 687.

After reading with attentive consideration the testimony in this cause the conclusion reached by the trial court as to the admissibility of the confession in the jail at Clinton, appears to be fully warranted. Among the reasons which may be presented favoring this conclusion are these: Nothing that occurred in the hotel in Windsor, in the nature of an admission or quasi-confession by the defendant, was allowed by the court to go to the jury, and even if it had been so allowed, there is such conflict in the testimony as to what actually occurred at that place as to leave it in doubt whether the admission of that quasi-confession of the defendant in evidence would have been reversible error. Besides all that, the testimony of two witnesses, the prosecuting attorney, Lewis, and John Barnett, establishes that defendant said, while in jail at Clinton, when speaking of the night at Windsor, that “he was not afraid of being mobbed, as he had been raised in that neighborhood and knew all the men. ” So that if it be conceded that undue influence was attempted to be exerted on defendant at Windsor, the testimony referred to shows that it failed to accomplish its purpose by exciting his fears. The only remaining question, then, is whether the occurrences on the carriage ride from the jail at Clinton, Monday afternoon, rendered the confession made that night inadmissible. It is true that trick and artifice were used and that liquor was used to the extent of making defendant drunk, and that questions were asked him with the hope of inducing a confession from him, but this was fruitless. No threat or promise was made. It is true, also, that Cason, in response to a question by defendant of what good it would do him to tell, said: c£ The state might be easier on him. ” But this was no promise. It was at most but the expression of an opinion in response to defendant’s question.

In Fife v. Com., supra, the jailer in a conversation with a prisoner respecting herself and other prisoners, had said to her “that if the commonwealth would use any of them as a witness, I suppose it would prefer you to either of. the others, ” and she after that made a confession. It was held that there was nothing in this expression of the jailer which amounted to a promise, or which should cause the confession to be rejected. The case at bar differs in no essential particular from the one just cited on the point now under discussion. Nor can it be said that Cason’s statement to defendant, if he could get out on bond he could drive a bus for him, be held to invalidate the confession subsequently made, for the law is that where a confession is made under the influence of some collateral benefit or boon, no hope or fear being held out in respect to the particular criminal charge, that then such confession, though made under the influence of such collateral inducement, is receivable. 1 Wharton Crim. Law, sec. 687. And the court restricted the state from offering in evidence only such portion of the confession of the defendant as was corroborated by other evidence in the case, and also called the attention of the jury to the point by an appropriate instruction. And there was abundant corroborative testimony in support of the confession — testimony perhaps sufficient in and of itself to warrant a conviction. If the first confession made in the jail to Bartlett and Cason was properly received, as being made without the influence of promise or threat, then the subsequent confession was properly received also. And as to the confession made to Oechsli, although he could not detail the minor matters, yet he did remember the- important points, and this was sufficient. To require in all cases of a confession that it should be rejected, if the witness thereto could not remember all that was said, however unimportant, would be, in many, if not in most, instances to exclude the confession altogether. Kelsoe v. State, 47 Ala. 573.

III. As to the instructions, they covered the law of the case and left nothing to be desired. So that any instructions refused on behalf of the defendant, were properly refused, no matter how well drawn they were. And there was no error in refusing to give the third instruction asked by defendant. It declared, in substance, that in order to sustain the charge made in the indictment, that a wilful, deliberate, and premeditated killing, with malice aforethought, must be proved, and that it was not sufficient to prove that the killing of Wells was done in the perpetration of a robbery. Our statutes provide that a killing in such circumstances should be murder in the first degree, as much so as when committed by means of poison or lying in wait. Section 1232. The phrase, “every murder, ” with which the section begins, is only used as a means of classification of the crime of murder; i. e.y the section makes no homicide murder that was not murder at common law; and the next suc-ceeding section fully supports this view by declaring that “all other kinds of murder at common law, not herein, etc., shall be deemed murder in the second degree. ” To say that a man may kill another in the attempt to rob him, is not murder in the first degree, is to fly into the face of the plainest statutory provisions.

The rule at common law was just as section 1232 substantially lays it down, “that a homicide committed in the perpetration of a felony was murder, and this, whether there was any precedent intention of doing the homicidal act or not. ” 1 Hale’s P. C., top p. 465; 1 East’s P. C. 255; 1 Hawkins’ P. C., chap. 29, sec. 11, p. 112; 4 Black. Com. (Cooley) 200. So the statute has been interpreted by this court. State v. Jennings, 18 Mo. 435; State v. Nueslein, 25 Mo.. 111; State v. Green, 66 Mo. 631; State v. Swain, 68 Mo. 605. And so the law has been declared in California, npon a statute substantially identical with onr own. People v. Vasquez, 49 Cal. 560. So, too, in Delaware. State v. Boice, 1 Hours. Crim. Cas. 355; State v. Jones, Ib. 21. This subject has-been exhaustively discussed by Norton, Judge, in the Shook case, 68 Mo. 552. A different view from that here expressed was held in State v. Earnest, 70 Mo. 520; and in State v. Hopper, 71 Mo. 425 ; but this was always done by a divided court. I think these cases should no longer be followed.

IY. There was no error in permitting Mrs. B. H. Wells to answer that she judged that the tall man, who-came on the night of the murder, was the defendant. She formed this opinion from his voice and his motion. She had been acquainted with him from his earliest childhood. Transgressors of the law have frequently been recognized by their voice and size. Wills on Cir. Evid. 113; King v. Brook, 31 St. Tr. 1137; Whar. Crim. Evid., sec. 803; Com. v. Scott, 123 Mass. 234; Brown v. Com., 76 Pa. St. 319. Opinion or belief on questions of identity of persons or of things, when such opinion or belief rests npon facts within the witness’ own knowledge, is competent evidence, although the witness will not swear positively to identity of the person or thing. State v. Babb, 76 Mo. 501. These remarks will also apply to the silver watch of W ells, taken at the time of the robbery. Mrs. J. E. Wells’ statement that “it looked like her husband’s watch, ” was competent to go to the jury.

Y: The remarks”of the special counsel for the state were not objectionable. The defendant had claimed-' when arrested that if taken to Windsor he could telegraph to Burdin, Kas., and prove that he was at a dance in that vicinity on the night of February 28, but when brought to Windsor he made no effort nor expressed a desire to have a telegram sent. This circumstance, damaging as it was to the defendant, was a fit subject for comment by the state, and for inference by the jury. State v. Emory, 79 Mo. 461.

Finding no error in the record the judgment should be affirmed and the law take its course.

Norton and Black, JJ., concur; Ray, J., in the result.