FARIS, P. J.
Defendant, convicted in the criminal court of Jackson County of murder in the first degree, and sentenced to imprisonment in the penitentiary for life, after the usual motions, appeals.
This is the second appeal in this case. [State v. Powell, 258 Mo. 239.] The facts of the homicide out of which this case arises have already been before us three times. [State v. Bonner, 259 Mo. 342; State v. Brown, 247 Mo. 715 ; State v. Powell, supra.] The facts proven upon the trial below from which the instant appeal is taken, differ in no material respect from those shown by the record in the other appeal herein, formerly considered by us. The evidence tended to prove that defendant, with one Arthur Brown and George Bonner, whose respective connection with this homicide is to be found detailed ip State v. Brown, supra, and State v. Bonner, supra, together with defendant’s two brothers, Halsey Powell and Cottrell Powell, in attempting to rob the freight office of the Missouri Pacific Railroad at Kansas City on December 1, 1911, shot and killed Albert Underwood, a cashier in said office. But as all the attending facts and circumstances are fully set forth in the two [105]*105cases last cited, and as the alleged confession of the defendant,, as well as the facts and circumstances under which it was made and upon which his former appeal and the instant one both turn, are to be found set forth in State v. Powell, supra, we need not cumber the books with these facts again. So we content ourselves with referring the curious reader to the three cases above cited for such facts as we may not set out in detail in our discussion of the case.
OPINION.
confession. When this case was here before it was reversed and remanded for a new trial on account of two things, which we then ruled constituted reversierror. the refusal to admit testimony offered by defendant in contradiction of the alleged confession, showing the whereabouts of Halsey Powell at the instant of the homicide, and (b) the action of the court in admitting the paper signed by defendant, purporting to be his confession. No other points were discussed, except such as were ancillary to the above two. Our ruling upon the last point, touching the admissibility of the defendant’s confession, was thus summed up:
“It is not necessary to discuss the matter at greater length. We are convinced that the written confession was not voluntarily made, and should, therefore, have been excluded by the court. [State v. Thomas, 250 Mo. 189, l. c. 211, and authorities there cited.] ’ ’ — State v. Powell, 258 Mo. l. c. 251.
Notwithstanding this holding the case is back here with the- single point mooted that the learned court nisi erred in the instant case in admitting the identical confession which we had already ruled was inadmissible.
We are entirely satisfied with the correctness of our ruling upon this point when the case was here [106]*106before. It comes to us now absent no vices that it contained then. The testimony going to show its voluntariness vel non (herein as formerly still strenuously ássailed) is substantially the same that it was before, except that the witness Boultt (and possibly the' witness Phillips, though as to the latter the record is not clear), now relates an antecedent oral confession which it seems was not mentioned by them in their former testimony. (We may be in error as to this fact; we gather it from the four corners of the record only and have not compared the evidence of these two witnesses with their former testimony on this matter on the other trial.) But, even should we be in error as to this, it can not change the law of the case. For when, upon a full investigation of the question-upon the former appeal we squarely ruled thaf the confession of defendant to Capt. Stone and the police officers was obtained in a manner which as a matter of law rendered it not voluntary and therefore inadmissible, this ruling became the law of the case upon another trial and likewise upon a second appeal, unless upon a second trial nisi a different state of facts was shown. [May v. Crawford, 150 Mo. 504; Bealey v. Smith, 158 Mo. l. c. 521; Fuchs v. St. Louis, 167. Mo. l. c. 652; Steinhauser v. Spraul, 114- Mo. 551.]
To ascertain whether such difference existed as would serve to change our ruling we do not need to compare this record with the former one, as we would if necessary be permitted to do. For a casual reading of the present record discloses that the identical vices for which we before held the alleged confession to be inadmissible because not voluntary, inure in the one before us. Indeed, it is fairly patent that-if legal defects, arising from matters 'of affirmative proof, existed before in laying the foundation of voluntariness in order to render the confession admissible in -the former trial, these defects could not be sworn away upon this trial, absent perjury. Nor in our view have [107]*107they been so sworn away. Error before arose -from the substantial fact that nine officers, for the most part police, collectively, or individually, or in pairs or trios, “sweated” defendant continuously from two o’clock in the afternoon till one o’clock next morning, at which time, after the police captain Stone and others of the nine apparently- in Stone’s presence, had told defendant it would “be best for him to tell the truth,” he made and signed the alleged confession in evidence. Upon this record, as upon the former, we do not credit the statements of the defendant that he was beaten and maltreated; for on this point he is overwhelmed and utterly discredited by countervailing testimony. But here upon the instant record the other identical infirmities of foundation appear affirmatively from the testimony of witnesses for the State.
So we do not need to pass upon the mooted and troublesome point whether in a criminal case a ruling by us upon an evidentiary matter, the admissibility of which depends on a foundation laid, could become “the law of the case” iipon subsequent trials and appeals, so far as to conclude appellate review here, regardless of whether or not a new and different state of facts was shown upon such subsequent trial. But that such a holding in the absence of an essential dil • ference in facts proven upon the two trials would become the law of the case on such last trial, we do not question or doubt. Since herein we find no such essential difference, we continue to rule as we ruled before.
For the error in admitting the alleged oral and' written confession made at Station Two in the presence of and to the nine officers,-this case must be reversed. What we say does not apply to the alleged prior confession made to special officer Boultt before defendant was “sweated.” Upon a trial anew, a' proper foundation being laid, we see no reason why [108]*108these alleged admissions of defendant will not be competent.
No unbiaséd reader of this record can fail to be impressed with some doubt as to the guilt of this young negro defendant. If his confession he stricken down there is left scarcely a shred of proof of his guilt. And at least one fact contained in his alleged confession, to-wit, that his brother Halsey was present at, and participating in the commission o'f this crime, is conclusively shown to be false, if a statement may be proven false by human evidence.
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FARIS, P. J.
Defendant, convicted in the criminal court of Jackson County of murder in the first degree, and sentenced to imprisonment in the penitentiary for life, after the usual motions, appeals.
This is the second appeal in this case. [State v. Powell, 258 Mo. 239.] The facts of the homicide out of which this case arises have already been before us three times. [State v. Bonner, 259 Mo. 342; State v. Brown, 247 Mo. 715 ; State v. Powell, supra.] The facts proven upon the trial below from which the instant appeal is taken, differ in no material respect from those shown by the record in the other appeal herein, formerly considered by us. The evidence tended to prove that defendant, with one Arthur Brown and George Bonner, whose respective connection with this homicide is to be found detailed ip State v. Brown, supra, and State v. Bonner, supra, together with defendant’s two brothers, Halsey Powell and Cottrell Powell, in attempting to rob the freight office of the Missouri Pacific Railroad at Kansas City on December 1, 1911, shot and killed Albert Underwood, a cashier in said office. But as all the attending facts and circumstances are fully set forth in the two [105]*105cases last cited, and as the alleged confession of the defendant,, as well as the facts and circumstances under which it was made and upon which his former appeal and the instant one both turn, are to be found set forth in State v. Powell, supra, we need not cumber the books with these facts again. So we content ourselves with referring the curious reader to the three cases above cited for such facts as we may not set out in detail in our discussion of the case.
OPINION.
confession. When this case was here before it was reversed and remanded for a new trial on account of two things, which we then ruled constituted reversierror. the refusal to admit testimony offered by defendant in contradiction of the alleged confession, showing the whereabouts of Halsey Powell at the instant of the homicide, and (b) the action of the court in admitting the paper signed by defendant, purporting to be his confession. No other points were discussed, except such as were ancillary to the above two. Our ruling upon the last point, touching the admissibility of the defendant’s confession, was thus summed up:
“It is not necessary to discuss the matter at greater length. We are convinced that the written confession was not voluntarily made, and should, therefore, have been excluded by the court. [State v. Thomas, 250 Mo. 189, l. c. 211, and authorities there cited.] ’ ’ — State v. Powell, 258 Mo. l. c. 251.
Notwithstanding this holding the case is back here with the- single point mooted that the learned court nisi erred in the instant case in admitting the identical confession which we had already ruled was inadmissible.
We are entirely satisfied with the correctness of our ruling upon this point when the case was here [106]*106before. It comes to us now absent no vices that it contained then. The testimony going to show its voluntariness vel non (herein as formerly still strenuously ássailed) is substantially the same that it was before, except that the witness Boultt (and possibly the' witness Phillips, though as to the latter the record is not clear), now relates an antecedent oral confession which it seems was not mentioned by them in their former testimony. (We may be in error as to this fact; we gather it from the four corners of the record only and have not compared the evidence of these two witnesses with their former testimony on this matter on the other trial.) But, even should we be in error as to this, it can not change the law of the case. For when, upon a full investigation of the question-upon the former appeal we squarely ruled thaf the confession of defendant to Capt. Stone and the police officers was obtained in a manner which as a matter of law rendered it not voluntary and therefore inadmissible, this ruling became the law of the case upon another trial and likewise upon a second appeal, unless upon a second trial nisi a different state of facts was shown. [May v. Crawford, 150 Mo. 504; Bealey v. Smith, 158 Mo. l. c. 521; Fuchs v. St. Louis, 167. Mo. l. c. 652; Steinhauser v. Spraul, 114- Mo. 551.]
To ascertain whether such difference existed as would serve to change our ruling we do not need to compare this record with the former one, as we would if necessary be permitted to do. For a casual reading of the present record discloses that the identical vices for which we before held the alleged confession to be inadmissible because not voluntary, inure in the one before us. Indeed, it is fairly patent that-if legal defects, arising from matters 'of affirmative proof, existed before in laying the foundation of voluntariness in order to render the confession admissible in -the former trial, these defects could not be sworn away upon this trial, absent perjury. Nor in our view have [107]*107they been so sworn away. Error before arose -from the substantial fact that nine officers, for the most part police, collectively, or individually, or in pairs or trios, “sweated” defendant continuously from two o’clock in the afternoon till one o’clock next morning, at which time, after the police captain Stone and others of the nine apparently- in Stone’s presence, had told defendant it would “be best for him to tell the truth,” he made and signed the alleged confession in evidence. Upon this record, as upon the former, we do not credit the statements of the defendant that he was beaten and maltreated; for on this point he is overwhelmed and utterly discredited by countervailing testimony. But here upon the instant record the other identical infirmities of foundation appear affirmatively from the testimony of witnesses for the State.
So we do not need to pass upon the mooted and troublesome point whether in a criminal case a ruling by us upon an evidentiary matter, the admissibility of which depends on a foundation laid, could become “the law of the case” iipon subsequent trials and appeals, so far as to conclude appellate review here, regardless of whether or not a new and different state of facts was shown upon such subsequent trial. But that such a holding in the absence of an essential dil • ference in facts proven upon the two trials would become the law of the case on such last trial, we do not question or doubt. Since herein we find no such essential difference, we continue to rule as we ruled before.
For the error in admitting the alleged oral and' written confession made at Station Two in the presence of and to the nine officers,-this case must be reversed. What we say does not apply to the alleged prior confession made to special officer Boultt before defendant was “sweated.” Upon a trial anew, a' proper foundation being laid, we see no reason why [108]*108these alleged admissions of defendant will not be competent.
No unbiaséd reader of this record can fail to be impressed with some doubt as to the guilt of this young negro defendant. If his confession he stricken down there is left scarcely a shred of proof of his guilt. And at least one fact contained in his alleged confession, to-wit, that his brother Halsey was present at, and participating in the commission o'f this crime, is conclusively shown to be false, if a statement may be proven false by human evidence. While confessedly it is a very human failing, superinduced doubtless by constant dealings with the hardened criminal classes, which induces police officers and detectives to-follow the popular attitude and presume the guilt of an accused person rather than his innocence, which latter presumption the law enjoins upon the courts; nevertheless this popular presumption of guilt and the court-ruled and legal presumption of innocence cause trouble and misunderstandings in the administration of justice when they clash. This case proves the rule. For while defendant may be guilty there is such grave doubt of it, and the fact of guilt rests upon so thin a point, as to give us pause in so ruling, out of hand. His confession absent, he is upon the other facts shown, as innocent as the unborn babe. Therefore considerations of justice demand that great caution should be used and great exactness required in so close a ease upon so grave a charge. A fortiori, since our rulings may be as well a bane to the innocent as they are the means of visiting justice upon the guilty. Abstractly, a wrong ruling as to a gnilty person does not harm society; and hut aids in doing justice upon him who deserves punishment; but such a ruling lives to be a precedent for the hurt and harm of the innocent, and so our duty is to write the law by which both the guilty and the innocent may be safely tried. [109]*109A rule of law fit only to try tlie guilty is no better tban lynch law.
It results that for the error noted this case must be reversed and remanded for a new trial. Let this be done.
All concur..