Opinion
November 5, 1931.
1. INSUFFICIENT EVIDENCE: Extra-Judicial Confession. Testimony of the State's witnesses that defendant confessed to them that he had transported hooch, unsupported by any extraneous facts or circumstances tending to show that the crime was committed, will not sustain a conviction.
2. ____: ____: Corpus Delicti. Proof of a confession of a crime, not made in open court, in the absence of any proof of the corpus delicti, will not sustain a conviction.
Appeal from St. Clair Circuit Court. — Hon. W.L.P. Burney, Judge.
REVERSED AND REMANDED.
Dewey P. Thatch for appellant.
The court erred in overruling the defendant's demurrer offered at the close of all the evidence in the case and in refusing to instruct the jury to return a verdict of not guilty on the first count of the information, as requested by the defendant. (1) The so-called confession did not contain a sufficiently detailed description of the alleged offense to support the charges alleged in the information, even had there been ample independent proof of the corpus delicti. There was no showing that the alleged liquor, if any, was not carried upon the person of the defendant or upon the person of some other occupant of the automobile, if there was in fact an automobile. Such proof must exist before a conviction will be upheld. State v. Eklof, 11 S.W.2d 1034; State v. Willoby, 34 S.W.2d 7; State v. Peters, 6 S.W.2d 779. There was no liquor introduced in evidence, and no person testified to seeing any liquor being transported by this defendant or by any other person. The sheriff testified that the defendant in his confession said that "Bill Martin drove the car." No conspiracy was shown to exist between Martin and the defendant, nor was it shown that such driving, if any, was done by Martin under the instructions or control of the defendant. (2) Not one word of testimony was offered, independent of the alleged confession, which has any tendency whatever to establish the corpus delicti. An extra-judicial confession, standing alone and without independent proof sufficient to establish the corpus delicti, is not sufficient evidence upon which to base a conviction. State v. Capotelli, 316 Mo. 256, 292 S.W. 43; State v. Young, 237 Mo. 171; State v. Willoby, supra; State v. Scott, 39 Mo. 424.
Stratton Shartel, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondent.
The record discloses that the appellant was convicted solely upon the confession of the defendant, not made in open court, nor on an examination before a committing court, but to an individual, uncorroborated by circumstances, and without proof aliunde that a crime had been committed. After a careful examination of the authorities as to whether an extra-judicial confession, uncorroborated by any other proof of the corpus delicti, is of itself sufficient upon which to find a conviction, we have reached the conclusion that it is not. State v. Bowman, 294 Mo. 258; State v. Mullinix, 301 Mo. 391 et seq.; State v. Bennett, 6 S.W.2d 882; State v. Trosper, 293 S.W. 486.
By an information filed in the Circuit Court of St. Clair County, the defendant (a Negro) was charged, in the first count, with the unlawful transportation of "hooch, moonshine, corn whiskey," and, in the second count, with the unlawful sale of "hooch, moonshine, corn whiskey." At the close of all of the evidence the State dismissed as to the second count. The jury found the defendant guilty as charged in the first count, but failed to assess his punishment. The trial court assessed his punishment at imprisonment in the penitentiary for two years and sentenced him accordingly, and the defendant, in due course, appealed.
The State's case rests entirely on the testimony of the sheriff and prosecuting attorney concerning an extra-judicial confession made by the defendant. According to the testimony of the sheriff, in the early part of April, 1931, he met the defendant "on the track" in the town of Osceola, in St. Clair County, and searched him, and found "a quantity of bottles in his possession." The bottles were "practically empty — they had some liquor." Four or five days later the defendant was "apprehended on another charge," not on "the charge of transportation." At that time, while the defendant was under arrest and in his custody, he took the defendant to the office of the prosecuting attorney, where the defendant was questioned by the prosecuting attorney in his presence. In answer to the prosecuting attorney's questions, the defendant said "he and another colored man, Bill Martin, had gone to John Allen's, about six or seven miles south of Roscoe, in St. Clair County, sometime in March, and got a gallon of corn whiskey in a glass jug, and it was hauled in his car, and Bill Martin did the driving." The sheriff further testified that the defendant was not a resident of St. Clair County, but had been visiting with relatives in Osceola and vicinity "since the first of the year." And he further testified that all he knew about this case was what the defendant had told the prosecuting attorney in his presence. According to the testimony of the prosecuting attorney, when the defendant was arrested and brought to his office by the sheriff, he suggested to the defendant that he was entitled to counsel or to talk to a friend before he made any statement. He then asked the defendant where he lived and what he was doing in Osceola, and the defendant answered his questions. He then told the defendant that he (the defendant) was charged with "the possession of liquor," and the defendant, voluntarily and without being coerced in any way, said: "I went over to John Allen's and I got a gallon of hooch whiskey, and I hauled it back to the spring (on the prosecuting attorney's farm), and brought it on to Osceola, and hauled it in my car." On cross-examination, the prosecuting attorney said the defendant "made the statement that he went over to John Allen's, and they got a gallon of corn whiskey or hooch, and hauled it and put it into the spring at my place, and then came to Osceola with it."
The defendant testified: He lived in Wichita, Kansas, where he owned and operated a garage and a paint shop. His wife worked "for people" in Wichita, with whom she traveled between Wichita and Hutchinson, Kansas. Before their marriage, his wife lived in Osceola. He and their two children had been visiting with relatives in Osceola and vicinity since January 2, 1931. He brought his children to Osceola in an automobile which belonged to "an old lady," a relative of his, in Wichita. He had never possessed, nor transported, nor sold, nor had any dealings in, intoxicating liquor since he came to Osceola. He drove out to John Allen's home, with Bill Martin and Bill Starkey, on one occasion. Martin and Starkey were Negroes who worked on the prosecuting attorney's farm. When he was arrested, the sheriff took him to the prosecuting attorney's office, and the prosecuting attorney questioned him. The prosecuting attorney accused him of buying a gallon of whiskey from John Allen, and he told the prosecuting attorney he did not buy any whiskey from John Allen, and, if there was any whiskey bought from John Allen, he did not see it, nor have anything to do with it. On cross-examination, he said he drove out to John Allen's home because Bill Martin wanted to see John Allen. He was there twenty or thirty minutes, but did not get out of the automobile.
Ervin Graves, testifying on behalf of the defendant, said: He was pastor of the "colored" Methodist church in Osceola. The defendant married his step-daughter, and the defendant and his two children were visiting with "the folks." The defendant's conduct was "very good," and he never heard of the defendant "being accused of any activity in connection with intoxicating liquor until this case came up."
It is apparent at once that the defendant's challenge of the sufficiency of the evidence must be sustained, and the Attorney-General so concedes. As hereinabove shown, the testimony of the State's witnesses relates to an extra-judicial confession of the defendant, and is unsupported by any extraneous facts or circumstances tending to show that the crime charged was committed. Proof of a confession of a crime not made in open court, without independent proof of the corpus delicti, will not sustain a conviction. This is a well-established rule of criminal procedure. [State v. Young, 237 Mo. 170, 140 S.W. 873; State v. Mullinix, 301 Mo. 385, 257 S.W. 121; State v. Capotelli, 316 Mo. 256, 292 S.W. 42; State v. Bennett (Mo. Sup.), 6 S.W.2d 881.] The demurrer offered by the defendant at the close of all of the evidence should have been sustained.
No other questions are presented for our consideration on this appeal.
Because of the insufficiency of the evidence, the judgment is reversed and the cause remanded. All concur.