The real question in this case is not whether the officers of the Missouri State [38] Highway Patrol complied with Sections 4346 and 8360, R.S. 1939, Mo. Stat. Ann. The sole question is whether or not the confessions of these defendants were voluntary in fact. *Page 1006
[4] It is my view that we should adhere to the standard of admissibility of confessions of whether or not the particular confession is voluntary in fact. That has always been the rule of this Court. [State v. Menz, 341 Mo. 74, 106 S.W.2d 440 and cases therein cited.] Likewise, as shown by these authorities, this is a jury question unless its involuntary character so conclusively appears that it must be held to be involuntary as a matter of law. McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608, 87 L. Ed. 819, establishes no rule of constitutional law which requires us to change this standard. In Ashcraft v. Tennessee, 322 U.S. 143, 64 S. Ct. 94, 88 L. Ed. 1192, the United States Supreme Court recognized the rule that the test is the voluntariness of the statement, by basing its decision (reversing the case because conviction was based on an inadmissible confession) upon its conclusion "that if Ashcraft made a confession it was not voluntary but compelled." In Lyons v. Oklahoma, 322 U.S. 596, 64 S. Ct. 1208, 88 L. Ed. 1481, a second statement (after an admittedly inadmissible involuntary statement) was held to be voluntary and therefore admissible. If the confession is voluntary in fact, and is true, the defendants' rights are not violated by putting it in evidence. Some one must determine these fact issues and our system is to leave them to the jury, when they must be decided on conflicting evidence.
[5] I do not see how there can be any question as to the voluntariness of Sanford's confession. He made it during the day he was arrested and well within the 20 hour period required by Section 4346, R.S. 1939, Mo. Stat. Ann. He had corroborated it by showing the officers where the victim's purse had been left. He further corroborated it by making the same statements to others who were not officers and had no authority over him. (See 22 C.J.S. 1439, sec. 819.) He did not testify at the trial. I do not think there is any substantial evidence to show that his confession was involuntary.
[6] In the Ellis case, the questioned confession was later corroborated by an acknowledgment of his guilt to his mother. The dissenting opinion herein relies strongly on State v. Owens,302 Mo. 348, 259 S.W. 100, which was an illegal search and seizure case. It seems to me that there is a vast difference between the use of evidence taken by an illegal search and seizure and the use of a voluntary confession made during illegal detention. Of course, evidence taken by illegal search and seizure is an involuntary disclosure thereof on the part of the person from whom it is taken. It should unquestionably be in the same class with an involuntary confession. But a voluntary confession although made during illegal detention is still a voluntary disclosure.
Moreover, the officers who held Ellis were not acting illegally in taking him into custody. They had the right to arrest him and were charged with the duty of investigating this crime. They should have taken him before a magistrate as the statute directs so that formal charges against him could have been made. However, he knew why *Page 1007 he was being held and so did members of his family who also knew where he was being held. Of course, failure to comply with Sections 4346 and 8360 could have a bearing on the voluntariness of a confession but (as the opinion of Douglas, J. points out) Ellis made no claim that it did in this case. He made a subsequent confession at another place, out of the presence of the Patrol Officers. The acts of which Ellis complained as affecting the voluntariness of his confession were submitted to the jury, but they did not believe that these acts were committed. [See State v. Hawkins (Mo. Sup.), 165 S.W.2d 644.] His testimony concerning them was not convincing. He identified none of the officers he knew with these acts, and could not say who did it. While there was sufficient evidence to have supported a jury verdict that his confession was involuntary, I do not think it was established as a matter of law.
I, therefore, concur in the opinions of DOUGLAS, J., in these cases. All concur except Tipton, J., dissenting.