State v. Thomas.

determining whether it was obtained by such means the sex, age, disposition, education, and previous training of the prisoner, his mental qualities, his physical health, and his surroundings are elements to be considered."

See also Underhill on Criminal Evidence (2 Ed.), sec. 128.

The above rule announced by Cyc. and Underhill has been approved by this court in the case of State v. Fredericks, 85 Mo. 1. c. 149.

The fact that defendant in this case was a boy not over seventeen years of age, and was subjected to almost continuous interrogatories during twenty-four hours was almost sufficient to justify a court in rejecting the statement and admissions as involuntary. The obnoxious practice of extorting confessions from prisoners suspected of crime has become so common that some States have enacted statutes declaring such confessions inadmissible unless the defendant be first warned that they will be used to convict him of crime. [Parker v. The State, 46 Tex. Crim. 461, 1. c. 470.]

However, a reasonable presumption should be indulged that the trial court acted in good faith, and there being substantial evidence and circumstances on each side of the proposition in this case, the court did not err in permitting the signed confession of defendant to be read to the jury. However, under the facts disclosed by this record, the defendant was entitled to an instruction telling the jury that unless they found that the written confession and oral admissions tending to prove defendant's guilt were voluntarily made by him they should diregard such confessions and admissions. [State v. Stebbins, 188 Mo. 387, 1. c. 398; State v. Moore, 160 Mo. 443, 1. c. 460; State v. Brooks, 220 Mo. 74, 1. c. 84; Underhill on Criminal Evidence (2 Ed.), sec. 126.] The word voluntary is so simple and in such general use no difinition of its meaning is necessary, and an attempt to define that word in an in

State v. Thomas.

struction would necessarily amount to an unwarranted comment upon the evidence.

The court neglected to give such an instruction, but its error in failing to do so does not entitle defendant to a reversal of the judgment.

While it is the duty of trial courts to instruct the jury without request upon the issues of law which directly arise in criminal cases, there are certain collateral issues which sometimes arise, and upon which the court need not instruct unless the defendant prepares and requests such an instruction. When the defendant is entitled to an instruction limiting or modifying the effect of evidence which has gone to the jury this raises a collateral issue which the court may ignore, unless the defendant prepares and requests an instruction defining the effect or weight to be given to such evidence. See the case of State v. Starr, 244 Mo. 1. c. 176 to 183, where the authorities on this point are collated and exhaustively reviewed by FERRISS, J., who reached the conclusion that: "As to collateral questions, the parties must formulate and ask such instructions as they may be entitled to, and such instructions should embody the principle for which they contend. If improperly framed, the trial court should correctly reframe them, if the principle embodied is applicable to the facts." [p. 183.]

Defendant having failed to prepare and request any instruction informing the jury that they might disregard the written confession of defendant if they believed it was not voluntarily made, there would have been no error in this case of which he could complain if the court had ignored said confession in its instruction to the jury. However, on behalf of the State it gave instruction numbered 6, which reads as follows:

"If verbal or written statements of the defendant have been proven in this case, you may take them into consideration, with all the other facts and circumstances proven. What the proof may show you, if

State v. Thomas.

anything, that the defendant has said against himself, is presumed to be true, because against himself; but anything you may believe from the evidence, the defendant said in his own behalf, you are not obliged to believe, but you may treat the same as true or false, just as you believe it true or false, when considered with a view to all the other facts and circumstances in the case.'

This instruction placed the stamp of verity and truth upon the written confession which the court had admitted, and precluded the jury from considering the facts and circumstances under which it was obtained and whether or not it was wholly voluntary. This was error highly prejudicial to defendant. If the court deemed it proper to make any comment on the written confession at all, it should not have ignored the protracted "sweating" by which it was obtained, but, under the facts shown in this case, should have told the jury that in determining what credit, weight and value they would attach to the alleged confession offered in evidence they might take into consideration all of the conditions, facts and circumstances under which the same was obtained, and that if they believed it was made voluntarily they might consider anything which the defendant said therein against himself as true; but if, on the other hand, upon a consideration of all of the said facts, conditions and circumstances, they believed, that the alleged written confession was not voluntarily made, they should disregard it altogether. We are not here losing sight of the well-settled rule in this State, which we reiterate, that the competency. of a confession is primarily for the court, but that the weight and credibility to be given it in a case like this. is for the jury. [State v. Brennan, 164 Mo. 1. c. 510; State v. Stebbins, 188 Mo. 387.]

In the opinion of the writer there is grave doubt as to the propriety or necessity of trial courts giving

State v. Thomas.

any instruction attempting to define the weight to be given to oral admissions or confessions against interest. Such instructions violate the plain letter and spirit of section 5244, Revised Statutes 1909, prohibiting courts from commenting upon evidence. We doubt if any citizen of Missouri was ever selected for jury service who was so grossly ignorant as not to understand that a statement against interest coming voluntarily from the mouth or pen of a litigant should be treated as true. We are aware of the long-established custom in this State of giving instructions defining the weight to be given to oral admissions against the interest of the party making same, and we would hesitate to reverse a case solely for an error of that character, but we believe trial courts should construe only legal documents and leave juries untrammeled in weighing oral evidence.

IV. Defendant's resourceful counsel moved to quash the information, and also to arrest the judgment on account of an alleged error in the information wherein it is charged that

Information.

.

the several defendants assaulted, stabbed and killed the deceased with a knife "which they . in their hands held." It is contended that all six of the indictees could not have held one knife. We regard this assignment as frivolous. It is certainly not necessary to describe how a deadly weapon was held by parties using the same to commit a crime. That part of the information objected to may be treated as surplusage and still leave a valid charge. [See State v. Cummings, 248 Mo. 509, and authorities there cited.]

Numerous additional assignments of error are found in defendant's voluminous motion for new trial. We have examined said additional assignments but do not deem them of sufficient importance to receive attention in this opinion.

State v. Larkin and Harris.

For the error of the trial court in improperly commenting upon the written confession of defendant in its instruction, as hereinbefore quoted, the judgment will be reversed and the cause remanded for new trial. It is so ordered.

Walker, J., concurs; Faris, J., concurs in result.

THE STATE v. ROY LARKIN and IDA BELLE HARRIS, Appellants.

Division Two, May 20, 1913.

1. INSTRUCTION: Reasonable Doubt: Refusal of Defendant's. Where the court has already fully and correctly instructed on the subject of reasonable doubt and the presumption of innocence, it is not error to refuse an instruction on the point asked by defendant.

2. MURDER: Accessory: Sufficiency of Evidence.

The fact

that the defendant wife had sustained adulterous relations with her codefendant, that she had stated she wished she was free and that if her husband "was to get killed in the mine or hurt in any way" the codefendant would take care of her, and that she was present under the thorn tree with the codefendant when her husband came upon them and the shooting of pistols followed, in which her husband was killed, are not sufficient to authorize her conviction of murder.

3. REMARKS OF ATTORNEY: Attributing Statement to De. fendant Not Made. Where a witness testified that deceased's wife, prior to the shooting, had said that if her husband "was to get killed in the mine or hurt in any way" her paramour and codefendant "would take care of her," it was error for the prosecuting attorney to say to the jury that said codefendant "got on the stand and didn't say one word about" what deceased's wife "said that he said about taking care of her in case" her husband "was killed;" "he took the stand and testified in his own behalf after having heard that statement fall from the lips of this witness, and he absolutely failed to say that he didn't make that statement to" deceased's wife. The record nowhere shows that said defendant had ever said to deceased's wife that he would take care of her if her husband were dead, and the chief vice