State v. Ellis

193 S.W.2d 37, 193 S.W.2d 31, 354 Mo. 998, 1946 Mo. LEXIS 387

• Court: Supreme Court of Missouri
• Decided: February 11, 1946
• Docket: No. 39330.
• Status: Published

Opinions

DOUGLAS, J.

Fred Ellis, appellant, was found to be one of the murderers of Mary Santo and was sentenced to death.

Mary Santo, fifty-six years old, lived in a lonely section in hilly and wooded country two miles northwest of Pacific in Franklin County. Her closest neighbor was about a quarter of a mile away, the house almost obscured from view by the hills. About 9:30 .on Sunday morning, December 12, 1943 a caller at Mrs. Santo’s home noticed the kitchen door open and smoke coming out. Upon entering he noticed the stove was overturned, the room in confusion and blood on the .floor. He heard a groan, went farther and saw a body on the floor in the adjoining room. Without investigating further, he quickly went to Pacific for help. He returned with two companions who dragged the body out onto the porch and recognized it as Mary Santo. There she died. Pier head and face had been crushed and mangled, one eyeball was gone, the other dangling, her nose knocked to one-side and the bones of her face broken and forced through her skull. Her clothes were burned from her body. A pair of knucks was on the kitchen floor. Empty bottles, some of which had been broken, were on the floor by the body. Later when examined blood and hair were found on some of the bottles. There was blood on the floor and spattered on the walls of the kitchen and on the dining, room floor. Dresser drawers were open and the contents blood stained. The coroner and the sheriff of Franklin County and the State Highway Patrol were notified. Members of the patrol were the first officers to respond.

About noon on Tuesday, December 14, Ellis was arrested in Pacific by the City Marshal who turned him over to the Highway Patrol. He was taken by the patrolmen to the headquarters of Troop C of the patrol in Kirkwood, St. Louis County, where he arrived between 1 'and 2 o’clock in the afternoon. No warrant had then been issued for his arrest nor does it appear that he was then formally arrested. The time when a warrant was subsequently issued is not shown. The evidence does not disclose all of Ellis’ movements precisely and in detail between the time he was brought to headquarters and Friday evening when his confession was obtained there. He was questioned when he was first brought in. Then members of his family, who were also brought to headquarters, were questioned for the purpose of checking his alibi. He spent that (Tuesday) night in the Kirkwood jail where he was taken about 9 p. m. The next day, according to Ellis’ testimony, he was taken to the City of St. Louis and tested with a lie detector at the St. Louis metropolitan police headquarters. That night he was lodged in jail at St. Charles, county seat of St. Charles County. He remained there until the evening of Friday, December 17, when he was brought back to headquarters where he was questioned and made his first confession. This consumed all told about two hours. He-dictated the confession to a lieutenant of the patrol then read and signed it. He told that he and Jesse Sanford, also found guilty in a separate trial after severance, went to Mary Santo’s house early Sunday morning; got into the house by asking for a drink of water'; beat her with knucks and bottles; turned over the stove; wrapped Mrs. Santo’s body in a carpet and set fire to it. Then he went through some of the dresser drawers; fled in fright; threw away his coat in the woods; met Jesse the next day .and received two dollars from him as half of the money obtained by Jesse who had fled with Mrs. Santo’s purse.

The chief deputy sheriff of St. Charles County testified Ellis, on the evening of Sunday, December 19, voluntarily dictated a confession to him which he wrote down in long hand and Ellis signed. In that statement Ellis repeated the facts of his earlier confession. He added that he met Jesse Sanford Saturday night, December 11 and asked Jesse to help him pull a job. He obtained the knucks from Jesse, met him the next morning and set out to do the job planned at the home ofisome colored people. On their way they passed Mrs. Santo’s house and decided to go there. He again told how they beat Mrs. Santo with the knucks and bottles, wrapped her body in a carpet and set fire to it, ransacked the dresser drawers, became frightened at her groaning and fled.

On the morning of December 20 Ellis and some patrolmen went to the vicinity of Mrs. Santo’s house to look for Ellis’ .coat which he had thrown away because it was blood stained. They also Went to Ellis’ home where he and his mother had a conversation related in the testimony of the city marshal as follows: “And at the time the mother says, ‘Did you do this, Freddie? Are you guilty of this, Freddie?’ He says, ‘I ani.’ She says, ‘I thought I raised you different to that. What happened to you?’ ‘Well,’ he says, ‘Well, it looks like the devil just got hold of me, and I was led into it. ’ ” Several patrolmen testified about the conversation to the same general effect.

Florence Connors, a stenographer employed' at patrol headquarters testified that on December 20 Ellis repeated his confession to her.

The next day, December 21, a date which seems to have been previously set, the patrol delivered Ellis to the sheriff of Franklin County at Union where he was taken before a justice of the peace. The justice read the warrant to Ellis and told him what he was charged with. The justice advised Ellis about his right to have counsel and to have a preliminary hearing. Appellant told the justice he did not want a preliminary hearing, he wanted only to tell the truth. The justice bound him' over for trial and committed him to jail at Union, Franklin County.

At the trial Ellis took the stand and testified to an alibi. He further testified the patrolmen struck him with their fists, with a rubber hose and with a leather belt. He was unable to identify anyone who had struck him because he said they stood behind him when beating him. He denied to the patrolmen he was guilty but they made him ‘ ‘ own up ” to the facts 'in his confession. Ellis said the deputy at St. Charles did not lay a hand on him, that he made a statement to the deputy there but the statement was not true. He denied ever talking to Miss Connors or even seeing her. As to the admission to his mother he said he merely meant that Sanford had gotten him in trouble with-the patrol.

The admissibility of the confessions was challenged at the opening of the trial by a motion to suppress and exclude such evidence and again at the time they were offered during the trial by objections to their introduction.

One of the instructions given for Ellis told the jury that if his confessions were involuntary because of flattery, hope, torture, fear or “as the result of long continued questioning by members of the Highway patrol” they should reject such confessions.

Other instructions offered on behalf of Ellis, but refused, would have withdrawn from the jury’s consideration any statements and confessions made by Ellis while in custody of the Highway patrol as the patrol had failed to take Ellis forthwith after apprehending him before the court or magistrate having jurisdiction of the crime.

Section 8360, R. S. 1939, Mo. R. S. A. of the State Highway Patrol Act provides: “Any person arrested by a member of the patrol shall forthwith be taken by such member before the court or magistrate having jurisdiction of the crime whereof such person so arrested is charged'there to be dealt with according to law.” Section 4346, a provision applicable generally to all peace officers prohibits holding any person longer than twenty hours without warrant or other process.

The principal question for decision is whether the detention of Ellis in violation of the statutes rendered his confessions involuntary as a matter of law and inadmissible as violative of his rights under the Fourteenth Amendment of the Constitution of the United States and under Article II, Section 30 of the.Constitution of Missouri, 1875.

Wigmore (3rd Ed., see. 823) announces the general rule that a confession is not excluded because of any illegality in the - method of obtaining it or in the speaker’s situation at the time of making it. See to the same effect 22 C. J. S., Criminal Law, see. 817, pp. 1432, 3.

This State followed that principle in State v. Raftery, 252 Mo. 72, 158 S. W. 585. In that case the defendant, knowing the police were after him as being suspected of burglary, surrendered to the sheriff and gáve bond for his appearance and was released. The police promptly re-arrested him, held him for an unstated period of time and subjected him to police interrogation. We said: “There was no fact tending to show that the admissions made by defendant were not made voluntarily. The fact that he was under an illegal- arrest does not render such admissions incompetent in the absence of a showing that they were.not voluntary . . . ‘And according to the weight of authority, a confession, if otherwise admissible, cannot be rejected for the reason that the officer to whom it was made held the prisoner in custody upon an invalid process, or without any process or legal right.’ ” And see State v. Hoskins, 327 Mo. 313, 36 S. W. (2d) 909; State v. Mitchell, 339 Mo. 228, 96 S. W. (2d) 341. Directly in point is State v. Menz, 341 Mo. 74, 106 S. W. (2d) 440 where we held that the failure to release a person held for questioning within twenty hours after his arrest under Section 4346, no charge having been filed, did not render any statement or confession made thereafter presumptively involuntary.

While we do not find many cases on this subject we do find the same principle has also been generally followed in other jurisdictions, in some cases with certain qualifications. See Balbo v. People, 80 N. Y. 484, 499; People v. Trybus, 219 N. Y. 18, 113 N. E. 538; People v. Alex, 265 N. Y. 192, 192 N. E. 289, 94 A. L. R. 1033; People v. Vinci, 295 Ill. 419, 129 N. E. 193; Cates v. State, 118 Tex. Crim. Rep. 35, 37 S. W. (2d) 1031; Annotation 94 A. L. R. 1036.

The ultimate question in these eases has been whether the confession was in fact voluntary despite the illegal detention. That officers had overstepped legal bounds was in no case condoned. It was stated in People v. Vinci, supra, that such practice deserves the severest censure and had been repeatedly condemned.

However, there is nothing in this case to show that the detention of Ellis outside of his home county for a week before taking him to the proper authorities operated as a coercive influence in bringing about his confessions. He made no claim when he was on the stand that this fact caused him any fear or.in any other way induced him to confess unwillingly. Nor is there anything in the record or any claim on his part that his failure to consult with his friends or an attorney during this period induced him to confess against his will. If there had been any evidence that these circumstances forced his confessions against his will then the trial court, in admitting the confessions in evidence, would have instructed the jury to consider such circumstances if requested to do so. In determining whether a confession offered in evidence is voluntary the jury may properly take into consideration the circumstances under which it was made.

In this case, as we have pointed out above, the court gave the instruction requested by Ellis on the question of whether his confessions were involuntary because of torture, fear, promises or long continued questioning by the patrol. This instruction fairly presented the issue of whether or not the confessions were voluntary under the facts in evidence. Therefore, the constitutional requirements were satisfied. Lyons v. State of Oklahoma, 322 U. S. 596, 64 S. Ct. 1208, 88 L. Ed. 1481.

We do not find in this case the same circumstances in State v. Butts, 349 Mo. 213, 158 S. W. (2d) 790, 140 A. L. R. 1177 where we held a confession involuntary as a matter of law because it was induced by long continued questioning. We held there and repeat here with approval that mental punishment may be more cruel than physical punishment. A confession extorted by mental punishment is as incompetent as one by physical punishment. The United States Supreme Court, discussing the issue of the voluntary character of a confession, speaks of the “mental freedom” of the accused to confess or deny at the time he confesses. Ashcraft v. State of Tennessee, 322 U. S. 143, 64 S. Ct. 921, 88 L. Ed. 1192.

On the evidence in this case we hold the court did not err in refusing to give the instructions requested by Ellis withdrawing his confessions from consideration by the jury on the theory the delay in taking him before a magistrate made them involuntary as a matter of law.

In support of his position that his confessions are involuntary as a matter of law and therefore inadmissible, Ellis relies on the case of McNabb v. United States, 318 U. S. 332, 63 S. Ct. 608, 87 L. Ed. 819. In that case the defendants were not promptly brought before a United States Commissioner or Judge, but were detained by the officers and subjected to unremitting questioning for two days. Confessions were obtained. The United States Supreme Court held the confessions should have been excluded as a matter of law, not on constitutional grounds, but because the officers had violated the United States Statutes in failing promptly to take the defendants before a committing magistrate. The court announced the basis of its decision rested on its supervisory authority over the administration of criminal justice in the Federal Courts and its authority to formulate rules of evidence to be applied in Federal criminal prosecutions. It said: “ In holding that the petitioners’ admissions were improperly received in evidence against them, and that having been based on this evidence their convictions cannot stand, we confine ourselves to our limited function as the court of ultimate review of the standards formulated and applied by Federal courts in the trial of criminal cases.” Anderson v. United States, 318 U. S. 350, 63 S. Ct. 599, 87 L. Ed. 829 follows the McNabb decision. A later decision, United States v. Mitchell, 322 U. S. 65, 64 S. Ct. 896, 88 L. Ed. 1140 points out that the McNabb case was not there applicable because “there was no disclosure induced by illegal detention, no evidence was obtained in violation of any legal rights” and permitted the use of a confession given when first arrested although the defendant was not thereafter promptly taken before a committing magistrate. As those cases dealt with the admissibility of evidence in criminal trials in the Federal Courts the rule they announce is not binding here and is not apposite inasmuch as we have long followed a different rule. State v. Golden, 353 Mo. 585, 183 S. W. (2d) 109. And see Malinski v. People of New York, 324 U. S. 401, 65 S. Ct. 781, 89 L. Ed. 738.

Ellis filed a motion to quash the information because no preliminary examination was accorded him. From the evidence adduced on such motion it is clear that he waived such examination. The court properly overruled the motion. Section 3893, R. S. 1939, Mo. R. S. A. provides that a preliminary examination is not required where it is waived. See State v. McBride (Mo.), 12 S. W. (2d) 46; State v. Mason, 322 Mo. 194, 14 S. W. (2d) 611.

Ellis had a fair and impartial trial. On the record before us the judgment must be affirmed.

Judgment affirmed and sentence ordered executed.

Date of execution March 29, 1946.

Ellison, Gcmtt and Leedy, JJ., concur; Ciarle, C. J., concurs; Tipton, J., dissents in separate dissenting opinion; Hyde, J., concurs in separate concurring opinion in which all concur except Tipton, J., who dissents.