Opinion
No. 43700.
October 12, 1953.
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY.
Wilbur B. Ennis, Kansas City, for appellant.
John M. Dalton, Atty. Gen., Grover C. Huston, Asst. Atty. Gen., for respondent.
Appellant Cunningkin was convicted of murder in the first degree in the Jackson County Circuit Court on February 23, 1952. His punishment was fixed at life imprisonment in the State Penitentiary. An appeal was taken to this court.
Appellant says the trial court erred in giving an instruction concerning a statement or confession made by appellant after his arrest and while he was in custody of the police department of Kansas City, Missouri. A brief statement of the facts as disclosed by the evidence will be sufficient.
The State's evidence showed that on November 10, 1950, at about 10 o'clock in the morning, Cunningkin entered a liquor store at 1721 West 9th Street in Kansas City. James Balentine and two other men were leaning against a counter. Cunningkin walked toward a telephone booth and when opposite the three men, he turned, drew a gun from his pocket, and shot Balentine. Two bullets entered the chest and another the head of Balentine. He died within a few minutes. Two witnesses testified Balentine did not move until after he was shot when he fell to the floor. Cunningkin fled and was not apprehended until about August 3, 1951, when he was arrested in Texas. Cunningkin claimed that he shot Balentine to protect his own life. He testified that a few days prior to the shooting, Balentine and another man tried to rob him and to cut his throat; that he called for help and when some one opened a door of a house nearby, Balentine and his companion ran, calling out the threat that the next time they would kill him. Appellant further testified that on the morning of the shooting, he entered the liquor store not knowing "Big Jim", meaning Balentine, was in there. The occurrence in the store was described by appellant as follows:
"Q. Please tell the jury in your own words, Earl, what happened when you went in there. A. When I took a walk through the liquor store to make a telephone call, Big Jim and another fellow was standing up aside the counter when I walked up and when I walked in the door to make a telephone call, Big Jim reached for his pockets and I was already nervous, and I out with the gun with my left hand and started shooting because I thought it would have been my life or his."
It was shown, and the appellant admitted, that he purchased the gun that same morning about an hour before the shooting.
After Cunningkin was arrested in Texas, he was returned to Kansas City, Missouri, where, in the office of the Homicide Bureau in the presence of police officers and an assistant prosecutor, he made statements with reference to the shooting. These statements were made in answer to questions by the officers. Cunningkin told the officers about the attempted robbery and cutting by Balentine. His statements concerning the shooting were substantially the same as those in his evidence given at the trial, including his admission that he had purchased a gun on the morning of the shooting. The statement signed by the appellant also contains the following:
"`Question: Have you been informed of your constitutional rights — that you do not have to make a statement, and that under the law you are entitled to consult with friends and attorney?
"`Answer: Yes, sir.
"`Question: Are you willing to waive that right and make a statement with reference to the shooting of James Balentine which occurred November 10, 1950, at 9th and State Line, knowing it can be used against you in the event of a trial?
"`Answer: Yes, sir.
* * * * * *
"`Question: You signed a waiver of extradition to return to Kansas City for trial, is that right?
"`Answer: Yes, sir.
"`Question: How have you been treated by the police since you were arrested?
"`Answer: I have been treated fine — fine.
"`Question: That's by the police in Texas and in Kansas City both?
"`Answer: Yes, sir.'"
The State offered evidence to show that the statement was voluntarily made. No evidence was offered showing the contrary. The statement was admitted in evidence. The trial court gave the following instruction (No. 6) of which appellant complains:
"The Court instructs the jury that any statement or statements made by the defendant, even though it should contain matters that may tend to prove his guilt, is admissible in evidence against that defendant and is to be given such probative value as evidence as you believe it deserves, if you find it was voluntarily given.
"And in this regard, the Court instructs you that by the term `voluntarily' the Court means not secured by duress or by a promise of immunity to him by anyone competent to grant such immunity.
"However, the Court instructs you that to make a statement voluntary in nature, it is not necessary to show such confession or statement be spontaneous, that is made without either persuasion or questioning."
Appellant's first point is that the word "confession" was used "whereas no confession was before the Court or Jury." Whether appellant's statement signed by him may be termed a confession is a close question. A confession as ordinarily understood means an admission of guilt. 22 C.J. S., Criminal Law, § 816, p. 1420. However, admission of facts may constitute a confession. Statements made by an accused that he committed the acts without justification would amount to a confession. In this case, appellant's statement showed that he did the shooting; that he had had trouble with the deceased; that he purchased the gun used only an hour before the shooting; that he shot the deceased three times; that it was in a public place where others were present; and that he immediately fled. The facts as related by appellant seeking to justify the shooting, if true, do not amount to a justification as a matter of law. Under the admitted facts as related by appellant, a jury could well find that appellant was not justified in shooting Balentine. We hold that the instruction was not erroneous in using the words "it is not necessary to show such confession or statement be spontaneous" * * *.
Appellant next says the instruction should not have been given because appellant did not dispute the fact that the statements were voluntarily made and, therefore, the instruction amounted to a comment on the evidence. An argument could be made that the statement was not entirely voluntary. Appellant could not read and we learn from the evidence that he was a poor, hard working Negro. The statements were made while appellant was in custody. No one was present representing his interest. Thus, surrounded by officers, he made the statements in answer to questions asked by an assistant prosecutor. State v. Menz, 341 Mo. 74, 106 S.W.2d 440, loc. cit. 450 (15); State v. White, 316 Mo. 576, 292 S. V. 411, loc. cit. 412(4). In such circumstances, courts are justified in giving cautionary instructions. In fact, most often the defendants insist that such an instruction be given. State v. Bobbst, 269 Mo. 214, 190 S.W. 257, loc. cit. 261(10). Appellant cites the case of State v. Ball, Mo. Sup., 262 S.W. 1043, loc. cit. 1046(5-7) (8). In that case the court reviewed a number of cases and indicated that if statements of the accused used by the State were obtained while the accused was under arrest, an instruction on the question of whether the statements were voluntarily made would be justified. We must rule that the trial court did not err in giving instruction No. 6, supra.
Appellant says in his brief that the court erred in refusing to give an instruction requested by him with reference to the conduct and attitude of the deceased. Appellant failed to preserve this point in the motion for new trial and, therefore, the point is not before us for review.
We have examined the record proper and find no fatal defect therein.
The judgment is affirmed.
BOHLING and BARRETT, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court.
All concur.