Opinion
March 14, 1949.
1. Criminal procedure — corpus delicti — when sufficiently proved aliunde the confession.
In order for the corpus delicti to be established by evidence aliunde the confession, so as to make the confession admissible, it is not necessary that the proof aliunde should show the crime or corpus delicti beyond a reasonable doubt, but it is sufficient that it is shown by a preponderance of the evidence or by evidence amounting to a probability, and then the confession will be received, and if the confession coupled with the proof of the corpus delicti aliunde shows the corpus delicti beyond a reasonable doubt, it is sufficient.
2. Criminal procedure — corpus delicti — facts which when proved are sufficient on the issue of the corpus delicti to justify admission of confession.
When in a prosecution for arson of a dwelling house it is shown by evidence aliunde the confession that there were two fires in the residence going at the same time; that a can and two jugs of kerosene were so placed as to aid a successful fire; that the personal and household effects had been removed and were found where the accused, in his confession, said he had placed them, and that the insurance had been increased shortly before the fire, the proof was sufficient on the issue of the corpus delicti to justify the admission of the confession.
3. Criminal procedure — confession — admissibility to be determined by trial judge.
The question whether a confession was free and voluntary is for the determination of the trial judge, under all the pertinent facts and circumstances shown by the evidence, and his decision to admit the confession when amply supported by the evidence will not be reversed.
Headnotes as approved by Roberds, J.
APPEAL from the circuit court of Lauderdale County; JESSE H. GRAHAM, J.
E.T. Strange and Edwin A. Dunn, for appellant.
The corpus delicti can not be proven alone by the confession of the accused. Garner v. State, 96 So. 743; Jenkins v. State, 54 So. 158; Bolden v. State, 54 So. 241.
The defendant is a young negro man; he was arrested and taken from his place of work at a lumber company; said arrest taking place on a Wednesday, at which time he was carried to the City Police Department and held without the privilege of communication with any one except the police officers, until the following Saturday; same being a period of approximately fifty-six hours without being formally charged.
That during that period of time he was questioned in a closed room in the presence of three police officers and the state deputy fire marshal, some of whom wore pistols; the defendant being questioned for a period of better than three hours.
After being turned over to the county authorities, a typewritten statement of questions and answers was produced by the city officers with the defendant's signature at the bottom thereof, claimed by said officers to be a free and voluntary confession by the defendant.
Under the foregoing circumstances we contend that every constitutional right of the defendant was infringed upon and taken away from him, as accorded him under Section 26 of the Constitution of the State of Mississippi.
The unreasonableness of the length of time of detention without communication privileges, advice or counsel and without being formally charged, taking under consideration an important factor that defendant is a negro and is subject to greater fears than that of a white man and for a period of approximately fifty-six hours, being surrounded by no one but police officers, some of whom wore pistols, and there being evidence of threats, we contend under such circumstances could induce nothing but fear of grave bodily harm and a complete destruction of his freedom of thought.
As stated by this court "Confessions induced by fear though not aroused by spoken threats, are nevertheless involuntary, because the fear which takes away the freedom may arise solely from the conditions and circumstances surrounding the confessor." White v. State, 91 So. 903; 24 A.L.R. 699; Fisher v. State, 110 So. 361.
Other than this alleged free and voluntary confession, the State's evidence, in fact the State's case, is predicated wholly upon circumstantial evidence, the majority of which was legally incompetent and which was objected to by appellant. This court has said "In the application of circumstantial evidence to sustain conviction, the utmost caution and vigilence must be used." Johnson v. State, 198 So. 554.
No where in the alleged confession does it state any admission that the defendant set fire to or burned the house or that any such admissions were ever made by this defendant in the presence of any of the investigators.
In conclusion we adopt and cite the opinion of this court in the case of Bolder v. State, 54 So. 241, to-wit: "The burning of the house was abundantly proven. The only evidence introduced, other than the alleged confession of appellant, which tended to show that the burning was caused by a criminal agency, was that the fire occurred at night, that the fire originated on the outside of the house, and that shortly after the house had burned, tracks which resembled those of the appellant who lived several miles from the scene discovered about seventy-five yards from the place where the building had stood. A criminal agency may be established by circumstances, but this evidence is wholly insufficient to do so.
George H. Ethridge, Assistant Attorney General, for appellee.
It is contended by appellant that corpus deliciti was not established prior to receiving the confession in evidence. I submit that no one can read this record and accept the testimony of the witnesses for the state as to the conditions in the house when the firemen arrived there and extinguished the flames and as to the conditions which they found on investigation could doubt that the place was burned by criminal agency. As to the corpus delicti being established, our law is that the corpus delicti does not have to be established beyond a reasonable doubt before a confession is admissible. When it is proven by preponderance of evidence, then the confession may be admitted and if the confession plus the proof on corpus delicti together establish the crime beyond a reasonable doubt this is sufficient. In Sam v. State, 33 Miss. 347, it was held that the corpus deliciti in a case of arson is the burning of the house and if that fact be established by other evidence than confession of the accused, the confession is competent that the burning was felonious and that he was the criminal agent. In Stepney v. City of Columbia, 157 Miss. 193, 127 So. 687, it was held that a confession is not inadmissible merely because the corpus delicti was not fully proven independent of the confession. That confession is admissible and will sustain a conviction where there are other facts and circumstances in evidence sufficient to disclose confession was of a real crime. In Pope v. State, 158 Miss. 794, 131 So. 264, it was held that if proof aliunde plus confession establishes the crime beyond a reasonable doubt the confession is admissible.
Appellant and Areather Cotton were jointly indicted for arson in the burning of a dwelling house, the property of Cotton. A severance was granted, appellant was convicted and sentenced to the state penitentiary for two years. On this appeal he urges, first, that the testimony is insufficient to establish the corpus delicti aliunde his alleged confession, and, second, that the confession was not admissible in evidence because it was not shown to have been made freely and voluntarily.
Whether the State established, aside from the confession, that the fire was of incendiary origin, depends upon the effect of the following combination of proved circumstances, measured by the legal rules in this State for testing the sufficiency, or insufficiency, of the evidence to show that fact.
The fire occurred about 1:40 o'clock on the morning of June 24, 1948. When the Fire Department arrived the house was locked; no one was in it. The firemen broke through a door and succeeded in extinguishing the fire before the house was completely destroyed. The house was burning in two different places. One was in a closet. The other was across a room from the closet and against the wall of that room. That fire had burned through the wall. Both fires were going at the same time with no apparent connection one with the other.
Upon the ceiling of this closet was a one-gallon jug and also a can, both containing kerosene. The ceiling was of such a height that this jug and can could have been placed thereon by one of ordinary height standing on the floor of the room. Another gallon jug, containing kerosene, was upon the ceiling of an adjoining room, as we understand the evidence. One of the jugs had exploded before the firemen reached the scene. The other exploded while the fire was being put out. Kerosene from one or both of these jugs ran down the walls. One fireman caught some of it in his hand and said he knew it was kerosene. This can and the broken parts of these jugs, both yet containing some kerosene, were introduced in evidence and passed to the jurors for examination.
Appellant, in his confession, admitted that a few days before the fire, at the request of Areather Cotton, he carried from her home to, and left at, a laundry and dry cleaning establishment certain of her personal wearing apparel and household articles. He also said that, at her request, he had taken from her residence to a workshop he operated at his home a radio and cedar chest to be by him repaired. After the fire, he had delivered the radio and chest to the new residence of Cotton. He carried the officers to the laundry and dry cleaning establishments. There they found deposited in the name of Areather Cotton the personal and household articles so left by appellant. They also found the radio and cedar chest at the new residence of Cotton.
The officers further testified that they found in the damaged residence practically no clothing or personal effects — at least, none of any appreciable value. That was also true as to such household articles as linens, bedcovers, etc. Household effects in the house when the fire occurred consisted almost exclusively of heavy furniture, such as beds, springs, etc. From this fact the State reasons that personal clothing and things of that nature had been removed purposely in preparation for the fire.
It is further shown that Areather was carrying $1,000 fire insurance on the residence, payable to Bessie Williams, as mortgagee, to whom Areather owed that sum as the balance of the purchase price of the property. Shortly before the fire the insurance on the dwelling had been increased to $2,000, and the contents of the dwelling had been insured for $800.
All of this, it is urged by the State, shows, as a reasonable and logical conclusion, (1) that two fires, in different places, going at the same time, must have been intentionally started by some human agency, since it is unlikely they would have originated in this manner by accident; (2) that the can and jugs of kerosene were so placed as to aid and guarantee a successful fire; (3) that the finding after the fire of the personal and household effects at the places appellant said he put them strongly supports the theory of intentional burning; (4) that the fact that the insurance was increased shortly before the fire supplies the motive for purposely trying to destroy the property and collect the insurance money, and (5) that all of these circumstances together prove, with the certainty required in such cases, the fire was of incendiary origin, without the necessity of using the confession — at least without using any of it other than that supported by evidence of facts to which the confession lead. In Pope v. State, 158 Miss. 794, 131 So. 264, 265, this Court, in the following language, laid down the rule by which to test whether the corpus delicti had been shown before a confession is admissible. (Hn 1) "In order for the corpus delicti to be established by evidence aliunde the confessions, it is not necessary that the proof aliunde should show the crime or corpus delicti beyond a reasonable doubt, but it is sufficient to show it by a preponderance of the evidence or by evidence amounting to a probability, and then the confessions will be received, and, if the confessions coupled with the proof of the corpus delicti aliunde show the corpus delicti beyond a reasonable doubt, it is sufficient", citing a number of authorities. See also Sam v. State, 33 Miss. 347; Brown v. State, 85 Miss. 27, 37 So. 497; Stubbs v. State, 148 Miss. 764, 114 So. 827; Stepney v. City of Columbia, 157 Miss. 193, 127 So. 687; Gipson v. State, 162 Miss. 480, 139 So. 868; Garner v. State, 132 Miss. 815, 96 So. 743; Phillips v. State, 196 Miss. 194, 16 So.2d 630; Gross v. State, 191 Miss. 383, 2 So.2d 818.
(Hn 2) We are of the opinion the foregoing evidence met the test of the rule and that the corpus delicti was duly established.
As to whether the confession was free and voluntary, it is shown that appellant, after the officers had information connecting him with the crime, was "picked up" without a warrant and lodged in the city jail, where he was detained for a day or two until the state fire marshal could be present and question him. On the occasion of the alleged confession, there were present Harbour, Gunn and Stephens, members of the detective, or police, force of Meridian, and Ferguson, state fire marshal. Appellant said some of the policemen wore pistols exposed upon their persons. The officers said they were not certain as to that. They thought one policeman was wearing a pistol scabbard but none had a pistol. The confession was in the form of questions asked by Mr. Ferguson and answers given by appellant written out on a typewriter by a Mrs. Scarbrough as given, and signed by appellant after he had read them. The officers said appellant was not informed that he had a right to consult an attorney. Appellant did not make such a request. All of the officers testified that Ferguson told appellant that anything he said might be used against him; that there was no threat of violence or harm to appellant, and no inducement or hope of reward held out to him, to procure his answers. In other words, all four of the officers testified that the answers given by appellant were free and voluntary. Appellant said the fire marshal threatened to "stomp" him into the floor and directed him to answer, "Yes, sir" to all of the questions, and that he made the answers as a result of fear. However, the answers given by appellant do not show they were "Yes, sir" answers. For instance, he explained that Areather, a short time before the fire, had engaged him to do certain carpenter work and repairs on her residence. When asked how much he was to be paid therefor he replied, "labor and material together ran to $450.00". When asked if he knew the total fire insurance carried by Areather on that dwelling he replied, "I think she told me she already had $1,000 on the house, and Bessie Williams had that policy; she raised it another $1,000 and then got $800 on her house furniture". Asked as to his conversation with Areather about burning the house his reply was, "She said she had more insurance, she could burn the house and pay off Bessie Williams and then have about $1600 left". He said Areather told him she would pay him $50, balance she owed him for repair of the house, and an additional $150 in cash to help her burn the house; that he bought the kerosene and placed the jugs and the can upon the ceiling. He explained the manner of burning he had detailed to Areather as being the best method to adopt to make sure the house burned without the crime being detected, but Areather said she had a better method. Her idea was to place in the closet a lighted candle some twelve inches long, surround it with combustible materials, so that by the time it burned low she would be able to get out of town, the materials would ignite, and as the fire burned upward the jugs would explode, and the kerosene from the jugs and the can would assure a successful fire. Other answers made by appellant could be set out, which, if true, showed participation of appellant in the crime, and which answers are informative and stated facts which, in the nature of the situation, could have been known only to appellant and Cotton. These were not "Yes, sir" answers.
The fact that appellant, at the time he was being questioned, was then detained without a warrant, is merely one element, albeit one of considerable force, to be by the trial judge considered and weighed along with all the other pertinent evidence in determining the facts whether the confession was free and voluntary.
(Hn 3) Whether the confession was free and voluntary, under all of the testimony in this case, was a question for the trial judge. He held the confession admissible and the evidence amply supports his conclusion.
Affirmed.