The defendant and James Ingram were charged by indictment with robbery in the first degree; that is, that on April 7, 1923, at the County of Jackson, they robbed one O.R. Noyes by taking $2.50 from his person. The alleged robbery occurred about midnight on Saturday, April 7th, and the defendant Myers was arrested on the following Monday. He was granted a severance. He was tried July 17th, the result being a disagreement by the jury. At the second trial, on September 28th, the jury found the defendant guilty as charged in the indictment, but failing to assess the punishment, the court fixed the punishment at a term of ten years' imprisonment in the penitentiary. From judgment and sentence the defendant appealed. It will not be necessary to detail all the evidence. The chief complaint made is that the court erred in admitting an alleged written confession by the defendant.
The defendant, who was then nineteen years old, was arrested at the office of his employers about four P.M., April 9th, by two policemen, and taken to the station where he was questioned by several detectives and policemen for six hours, when he signed the alleged confession of participation in the robbery on the previous Saturday night. These officers were armed with revolvers. We quote from the brief and argument of the learned Attorney-General:
"This case, as viewed by us, is subject to only one serious objection. The appellant, in his motion for a new trial, assigns as error the admission of the alleged confession of the defendant.
"As to the statement gotten from the defendant, Oliver R. Noyes, the prosecuting witness, testified as follows:
"He was at the police station at the time the defendant made his statement. Defendant was in a small room with three or four officers, and some other men. He was being questioned about the robbery of the witness. He started to tell these men that he was out with *Page 95 a young woman from about ten o'clock until one o'clock on the night of the alleged robbery. When he did so, Detective Doarn hit him. The defendant told Doarn, `If you won't beat me if you won't kill me, I will make a statement.'
"Detective Doarn, who was present at the time the defendant made his statement, testified that he struck the defendant. He said, however, that he only pushed him along the side of the head with his open hand.
"Harvey L. Newman, who was present at the time the statement was made, testified that no threats were made before the defendant confessed, nor at any other time. He said that the defendant made his statement willingly. He testified, further, that the defendant was in the police station about six hours before his statement was read and signed by him.
"The defendant testified that when he was questioned by Detective Doarn about the alleged robbery, he started to tell the officer that he was out with a young woman at the time of the alleged robbery, but before he could finish the officer knocked him over. He said that the officers would take him downstairs in the jail for a few minutes and then bring him back upstairs and question him about the robbery. The officers finally handed him a written statement and told him to sign it. He did not dictate anything in the statement. He signed the statement because he thought he would be killed if he did not.
"Other witnesses testified that the defendant's face was beaten and bruised at the time they visited him in the jail and after the alleged confession was made.
"This evidence summarized shows that both the officer in charge of defendant and the prosecuting witness admitted that the defendant was struck by the officer before he made his statement."
In State v. Wooley, 215 Mo. 682, 115 S.W. 417, Fox, J., speaking for the court, said: "This question is not a new one in this court. It has repeatedly been in judgment before us and has received at our hands very *Page 96 careful consideration. It is always an important question, for it must be conceded that statements made by a defendant, which are obtained by improper inducements, such as the flattery of hope, promise of immunity, or reward, or by the use of any violence or threats, should never be admitted in the trial of a criminal cause."
See, to the same effect, State v. Brooks, 220 Mo. 83, 119 S.W. 353; State v. Wilson, 223 Mo. 188, 122 S.W. 671, and State v. Ellis, 294 Mo. 282, 242 S.W. 955.
In State v. Hart, 237 S.W. 477, Judge WHITE, then Commissioner of this court, said: "A confession, in order to be admissible, must be entirely voluntary. The fact that the accused is under arrest at the time he makes the confession is not sufficient to exclude his statement as being other than entirely voluntary. In order to exclude the confession on the ground that it is not voluntary, it must affirmatively appear that some inducement to confess was held out to the accused by or in the presence of some one having authority. The confession is presumed to be voluntary until the contrary appears. [Citing cases.] And it does not matter that the confession was elicited through questions of the officer or person in authority, and that such questions assumed the guilt of the defendant. [Citing cases.] The test is whether the statement was entirely voluntary. [State v. Smith, 222 S.W. l.c. 458, and cases cited.] Where the confession is induced by some influence, like a hope of elemency, or a fear of punishment, or violence from the officers or a mob, it is inadmissible."
This question was considered at great length in State v. Thomas, 250 Mo. 212, 157 S.W. 330, where Judge BROWN quoted approvingly from Underhill on Criminal Evidence, Section 140, as follows:
"The practice of eliciting a confession by putting question after question to the accused is clearly not conducive to the procurement of truth, and the mode in which the confession was elicited may always be considered by the jury to determine whether they shall believe it. *Page 97
"This is well illustrated by the methods employed by police officers and others in practicing upon the accused after his arrest what is known in police circles as the `third degree.' This usually consists in subjecting the accused, after his arrest and while in custody, to a continuous and rigid examination accompanied with intimidation by threats and other means. The length of this process and the manner of its application depend largely upon the character of the official who administers it and upon that of the accused to whom it is administered.
"Where, on the one hand, the police official is sufficiently hardened and brutalized by his past experience and the accused is a determined and courageous person, it is likely to continue for some lengthy period without results, but where the accused is weak and nervous or feeble in mind or body, the carrying out of this method of modern torture will generally result in producing statements in answer to leading questions which can readily be twisted into a confession.
"The worthlessness as evidence of such statements needs but to be stated in order to be appreciated. Their probative force, or rather lack of force, is well recognized by all who have had any experience of human nature."
On page 211 the learned judge said: "However, officers in trying to secure confessions or admissions from a party suspected of crime should not forget that they have no legal right to compel a person under arrest to make any statement whatever — that no one can be compelled to furnish evidence against himself, and where the interrogatories are persisted in to an unreasonable extent, thereby producing mental anguish on the part of accused, the confession or admission thus obtained should be wholly rejected as involuntary, the same as if it had been obtained by the infliction of physical torture." [See also, 16 Corpus Juris, 717 and 720.]
The defendant's eyesight was defective. When arrested, the officers required him to leave his spectacles. *Page 98 He testified he could not read the statement and did not know its contents. He showed by his several employers, covering a period of five years previous to his arrest, that his general reputation for truth and veracity was good. This is not questioned by the State. He testified that the officers struck him several times. When Mrs. McBride, a welfare worker for the juvenile court, and her friend, Mrs. Welsh, both of unimpeachable character, called at the jail two or three days after the defendant's arrest, they found his eyes blackened and his face bruised and swollen. The defendant was in custody from the time of his arrest, and it was within the power of the State to explain or rebut the testimony of these women. This was not done. On the whole showing there can be no reasonable doubt the confession was extorted by the brutality of the officers. But the evidence for the State is that while the defendant, a youth of nineteen, was being questioned, Officer Doarn committed an unprovoked assault upon him, whereupon defendant said, "If you won't beat me — if you won't kill me, I will make a statement." This was a part of the res gestae. It illuminated the situation like a flashlight; it clearly shows that the statement was coerced and involuntary and should have been excluded. The case was fairly submitted to the jury on the instructions, but for the error mentioned the judgment is reversed and the cause remanded for new trial. Railey, C., concurs.