State v. Walker

DISSENTING OPINION.

Sherwood, J.

— I am called upon to say why I dissent from the conclusions reached in the foregoing opinion. These are my reasons:

*115I. The instruction asked by the state and given, as to the necessity of receiving with caution the verbal admissions of defendant, was proper enough as far as it went; but it only asserted the familiar principle with respect to all verbal admissions and the caution which should attend testimony touching their having been made. 1 Gfreenl. Ev., sec3. 45, 97, 200. The first instruction however asked by the defendant, and refused by the court, was much broader in its scope and was different in its meaning; it related to the admissions made by the defendant as to the corpus delicti and his connection therewith. These admissions, if made, were mere extra-judicial confessions and that such confessions are utterly insufficient to warrant a conviction has been repeatedly held by this court. ■ Upon this ground it was that the case of Robinson v. State, 12 Mo. 598, was reversed. Upon this sole ground it was that in State v. Scott, 39 Mo. 424, the judgment was reversed and upon this sole ground the judgment in the case of State v. German, 54 Mo. 526, was reversed. In State v. Patterson, 73 Mo. 695, this doctrine was distinctly recognized.

In Robinson v. State, supra, one of the grounds of reversal was the refusal of the court to instruct, as asked 'by the defendant, that an extra-judicial confession was insufficient to convict unless corroborated. And it was upon this sole ground that, though such an instruction was proper, yet because it was not asked, that the failure of the court to give it was sustained in State v. Brooks, 92 Mo. 542. There is therefore no foundation for the assertion made in the majority opinion that “the prior cases in this court do not assert that such an instruction should be given in such cases.” So that it will readily be seen that if Robinson's case still stands for law, and if Brooks' case still stands for law the foregoing opinion is not law, neither indeed can be. In Brooks' case, the judgment was affirmed because of the failure to ask *116the proper instruction on the point in question, but the propriety of the instruction was conceded. Here not only is the propriety of the instruction denied, but the judgment is affirmed notwithstanding the failure to give what is conceded in Brooks' case and in Robinson's case to be a correct instruction. Does the present case overrule these cases? If not, why not?

In the majority opinion it is gravely asserted: “ But where the corpus delicti is fully and completely. established by the evidence, outside of the confessions, it is not error to refuse to instruct that it devolves upon the state to show, by extraneous evidence that the alleged crime had been, committed by some one.” The condemnation of the doctrine thus declared has been sufficiently shown by the cases cited ; but let us look at it apart from precedent and the same result is inevitable. The argument is that if the evidence is amply sufficient the propriety of refusing instructions based thereon thereby becomes immaterial. With equal propriety an appellate court might gravely say that because the evidence respecting, a homicide is confessedly sufficient to show circumstances of deliberation, premeditation and malice aforethought, that, therefore, an instruction ■defining those terms was unnecessary. In short, this court places itself on record as, in effect, declaring that if the evidence on a disputed fact is full and complete, strong and convincing, this does away with any necessity for an instruction based upon such fact. Accustomed as are the members of the legal profession of this state to surprises from this court in its enunciation of new rules and principles of criminal law, they will doubtless be startled by this, its latest utterance.

The case of State v. Lamb, 28 Mo. 218 has been cited as upholding the view that the distinction to be taken between judicial and extra-judicial confessions was a mere abstraction because a case will rarely arise for its application. However, this may be, there have *117arisen in this court three cases already where the distinction was maintained by this court, and the judgment of the lower courts reversed because of their failure to maintain it. Lamb's case has been severely and justly criticised by the text writers as inconsistent with fundamental principles in that it does give recognition to the broad difference between the probative effect of the different kinds of confessions. But in that case, the remark made was made arguendo, and in one sense the difference between the two kinds of confessions was an abstraction; that is, so far as the sufficiency of the evidence to support a con vie tion was concerned as there was abundant evidence to make up for any probative deficiency in the extra-judicial confessions therein. And that case does not discuss the point as to the propriety of refusing an instruction relative to the force and effect to be given to such confessions, and if it did, and stated anything contrary of what has been already asserted, it would be met and refuted by Robinson's case and Brooks' case, supra.

II. Again, the point insisted upon by the defendant was not that confessions obtained by artifice, cunning, falsehood and deception on the part of those obtaining them, would render such confessions inadmissible, as is assumed in the majority opinion ; but the point was made, and distinctly made, that the position of the witness Joseph Newton, who testified to the alleged confession, was tantamount to that of an accomplice to this extent at least, that a cautionary instruction should have been given respecting the weight to be attached to his testimony. This position of the defendant is abundantly sustained by authority as I will now proceed to show: Commonwealth v. Downing, 4 Gray, 29 ; Anonymous, 17 Abb. Prac. (N. Y.) 48 ; Preuit v. People, 5 Neb. 377; Heldt v. State, 20 Neb. 492, reported in 9 Grim. Law Mag. 248; Wharton’s Grim. Ev., sec. 440.

In Commonwealth v. Downing, supra, the witness, King, purchased intoxicating liquor sold contrary to law *118for the express purpose' of convicting the seller, and while the court held that this did not make him an accomplice and thus render his testimony inadmissible, yet the court used this language: , “We think he (meaning the trial judge) might well have instructed the jury that such testimony was to be received with the greatest caution.”

In Anonymous, supra, where the witness was hired to watch and detect a wife suspected of adultery, it was held that this did not authorize the absolute rejection of such witness’ testimony, but the court declared that it ‘ ‘ ought to be received with great caution and scrupulously and minutely scrutinized.”

In Heldt v. State, supra, the court uses this pointed language: “A man who will deliberately ingratiate-himself into the confidence of another for the purpose oft betraying that confidence, and, while with words of friendship upon his lips, seeks by every means in his power to obtain an admission which can be tortured into a confession of guilt, which he may blazon to the world as a means to accomplish the downfall of one for whom he professed great friendship, cannot be possessed of a very high sense of honor or of moral obligation. Hence the law looks with suspicion on the testimony of such witnesses, and the jury should be specially instructed that, in weighing their testimony, greater care is to be exercised than in the case of witnesses wholly disinterested.”

Wharton, in his work on Criminal Evidence (9 Ed.) sec. 440, approves this doctrine.

III. Error was committed in permitting the prosecuting attorney in his opening argument, to comment upon the failure of the defendant to testify as to what his purposes were in going to the house of Edens. He had testified that he was there formo felonious purpose. It may be conceded that it was competent for the state to have interrogated him as to what his purposes were ; *119but it does not thence follow that the prosecuting attorney failing in bis duty properly to cross-examine the defendant, and thereby elicit the whole truth from him, could afterwards take advantage of his own wrong and impute to the defendant the fault of not answering fully when no opportunity was afforded him of doing so. Common fairness forbids resort to such a course. It must be obvious that if the statute is construed as in this instance, that the privilege which the statute is supposed to confer on a defendant to testify in his own behalf, will very frequently be converted into a trap for the unwary, and enable the prosecuting attorneyto forbear to cross-examine the defendant, and then, by some covert and damaging insinuation, to do more than he could do by the most skilful cross-examination.