Opinion
No. 30156.
October 24, 1932.
1. CRIMINAL LAW.
In murder prosecution, confession held properly admitted where at time there was nothing to show that it was not free and voluntary.
2. CRIMINAL LAW.
If confession had been wrongfully admitted error was rendered harmless by defendant's taking stand himself and testifying to same facts related in confession.
3. HOMICIDE.
In murder prosecution, defendant's mental condition and his responsibility for acts and understanding of nature of acts were for jury on conflicting evidence.
4. HOMICIDE.
Question whether one convicted of murder should be hanged or sent to penitentiary for life held for jury.
APPEAL from circuit court of Lamar county. HON. J.Q. LANGSTON, Judge.
A.Q. Broadus, of Purvis, for appellant.
The evidence as a whole shows beyond every reasonable doubt that the alleged confessions were not free and voluntary.
It is a well settled principle of law that in determining if or not a confession is free and voluntary that all the facts and circumstances must be taken into consideration, and included in these facts and circumstances are:
The mental condition of the accused.
The dependency of the accused upon the person to whom the confession is alleged to have been made.
The fear, if any, which the accused entertains toward the person to whom the confession is made.
Whether or not the accused is in prison or under arrest.
If or not the accused has been threatened by the person to whom the confession is made, or by other persons for the benefit of the person to whom the confession is made.
If there have been guns exhibited or other deadly weapons which might have the same effect and influence as threats.
Harsh words in which the accused is disputed and called a liar.
Any kind of inducement.
Hope of reward or other undue influence.
In order to make competent a confession of guilt by a defendant charged with crime, the evidence of such confession must be so strong as to exclude every reasonable doubt that it was procured from the defendant under a threat of punishment, or a promise of reward. It must exclude every reasonable doubt that the confession was freely and voluntarily made.
Ellis v. State, 65 Miss. 44, 3 So. 188, 7 Am. St. Rep. 634; Williams v. State, 72 Miss. 117, 16 So. 296; State v. Smith, 72 Miss. 420, 18 So. 482; Johnson v. State, 107 Miss. 196, 65 So. 218, 51 L.R.A. (N.S.) 1183.
Where a confession is made under the influence of threats or the hope of reward, a subsequent confession will not be admissible in evidence until such influence is shown to have been removed.
Whitley v. State, 78 Miss. 255, 28 So. 852, 53 L.R.A. 402, note; Reason v. State, 94 Miss. 290, 48 So. 820; Mack-master v. State, 82 Miss. 459, 34 So. 156.
When a confession of a defendant is offered in evidence the court should ascertain by preliminary examination, conducted out of the presence and hearing of the jury, if requested, whether the proposed confession was made voluntarily.
Simmons v. State, 61 Miss. 243.
A voluntary confession is one proceeding from the spontaneous operation of the party's own mind, free from the influence of any extraneous disturbing cause.
Johnson v. State, 65 So. 218; Fisher v. State, 110 So. 361.
The State's own evidence shows that the appellant worked at the home of the deceased and that he did and acted, just about like the average high grade imbecile would act.
It would be a stranger doctrine which would hold that, because an accused had testified to a certain fact, no other testimony is to be received in his behalf in corroboration of that fact that it is no error, or else is only harmless error, to exclude this corroborating testimony. Under such a doctrine an accused must either not testify at all, or, if he elects to do so, then he must stand alone.
Prewitt v. State, 126 So. 825.
It is a well settled principle of law that every person is presumed to be sane, but that in the trial of a case where the question of the sanity of the defendant is raised, the burden is on the state to show beyond every reasonable doubt and to a moral certainty that the defendant was, first, mentally capable of committing a crime, and second, he committed the crime charged in the indictment.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
In the trial of this case, as well as in this appeal, we have at least two very anomalous situations. First, appellant is asking this court to reverse and remand his conviction, because certain confessions are allegedly inadmissible, because he, at the time of making them, "was in a state of fear and that duress, coercion, implied threats and hope of protection were the dominant elements employed" by the officers who heard his confession and at the same time the record shows conclusively that he took the witness stand voluntarily in his own behalf, covered the entire subject-matter contained in the confession, went more into detail and told the whole story and made out one of the most remarkably cold-blooded assassinations with which this court has every had to deal. If the confessions were entirely obliterated, if all the testimony for the state was torn from the record, the evidence that would still remain would, beyond the least shadow of a doubt, warrant the extreme penalty imposed upon him for his transgression.
It appears that this confession was obtained by questioning and nothing else, if the state's witnesses are believed.
A confession, in other respects admissible, is not inadmissible because it is not a spontaneous utterance of the prisoner. The fact that the confession was obtained by the employment of persistent questioning does not alone exclude it, if the confession emanates from the free will of the accused and without inducement or hope or fear.
Underhill's Cr. Ev. (3 Ed.), sec. 232; United States v. Matthews, Fed. Cas. 15741-b; St. v. Penny, 113 Iowa, 691, 84 N.W. 509; Young v. State, 90 Md. 579, 45 A. 531; Cox v. People, 80 N.Y. 500; Tidwell v. State, 40 Tex. Cr. 38, 47 S.W. 466, 48 S.W. 184; Aiken v. State, 64 S.W. 57; Ariola v. State, 79 Tex. Cr. 80, 183 S.W. 144.
The second confession was shown to be free and voluntary and there is nothing to contradict the testimony of the state. It clearly appears that if the first confession was obtained as appellant said it was, it was from fear of mob violence, and it clearly appears that at the time of making the second confession there was no hint or intimation from any witness, including appellant himself, that there was any threat of mob violence. It clearly appears, therefore, that any taint surrounding the first confession has disappeared as to the second and there is no dispute as to the voluntary character of the second confession, except by counsel for appellant in his brief.
Appellant further complains that these confessions were inadmissible because he was not warned as to his right to keep silent. This question has heretofore been settled by this court.
Carothers v. State, 121 Miss. 762, 83 So. 809.
In the absence of a statute, requiring caution or warning, a perfectly voluntary confession is admissible.
Corpus Juris (16 C.J. 724); Simon v. State, 36 Miss. 363; Dick v. State, 30 Miss. 598.
In the case of Ross v. State, 158 Miss. 827, 131 So. 367, this court held as follows: "Even though the appellant's confession to the county prosecuting attorney and the sheriff's deputies was not voluntary, its admission in evidence was without any harm whatever to the appellant, because he testified as a witness in his own behalf, and his evidence, in substance amounted to a plea of guilty of murder as charged.
Prine v. State, 158 Miss. 435, 130 So. 687; Goodman v. State, 158 Miss. 269, 130 So. 285; Sanders v. State, 158 Miss. 234, 130 So. 112; Rawls v. State, 152 Miss. 885, 120 So. 211; Parkinson v. State, 145 Miss. 237, 110 So. 513.
On the question of motive, it is interesting to note that the threat of deceased was a conditional one in that he said, as appellant said, that he would kill appellant unless he should agree to commit further larcenies with him, and not a direct, positive threat. The court classified threats of this kind in the case of Stroud v. State, 131 Miss. 875, 95 So. 738.
All the law governing the state's case does not have to be embodied in one instruction and the matter of whether or not the defendant had sufficient mind to appreciate the difference between moral right and wrong is fully covered by an instruction having been given at the request of the state.
It is clearly the law in this state that a person, regardless of how low his mentality is, is accountable for his act, if he is able to distinguish between moral right and wrong and knows the consequences of his act.
Argued orally by A.Q. Broadus, for appellant, and by W.D. Conn., Jr., for the State.
The appellant was tried and convicted for the murder of John Dearman and sentenced to be hanged.
About eleven years prior to the killing, the appellant went to live with Dearman remaining there a number of years. In 1931, the appellant left Dearman's home and made a crop near Wiggins in Stone county, but returned to the home of the deceased in the fall of 1931. Dearman, the deceased, was killed on the night of December 26, 1931, while sitting before his fire in a cane bottomed chair near a window, in such a position that his right side was visible from the outside of the window. Two shots were fired from the outside into the head of the deceased entirely blowing away one side and part of the top of his head, the brain being dislodged from the head and scattered, part being on the window sill. The deceased never moved from his position after he was shot, and was in this condition when several witnesses arrived.
The wife and daughter of the deceased were in the room at the time of the shooting, but neither of them were introduced as witnesses in the case.
The sheriff of Lamar county was called shortly after the killing, and, after making a preliminary investigation, went to the home of Babe Weatherford, the brother of the appellant, finding him there in bed, and arrested him, telling him he was arresting him in connection with the murder of John Dearman, and the only remark made by appellant was that John Dearman was a good friend of his. The appellant was taken to the Hattiesburg jail, then to the jail at Purvis, and finally to the jail at Poplarville, in Pearl River county.
In the meantime, the sheriff made some investigations and learned that the appellant had borrowed a 12-gauge shotgun from a party at Sumrall on the morning of December 26th, and also that appellant had been to the Hawkins Hardware Company in Hattiesburg, during the day, and had purchased four shells loaded with birdshot, and two loaded with buckshot. The shot with which the deceased was killed were buckshot. The sheriff located buckshot in different places in the room where deceased was killed. The sheriff procured the gun which had been borrowed by appellant, and then, with others, brought the appellant to the sheriff's officer about 9:30 P.M., and questioned him as to his movements during the day, and appellant admitted that he killed John Dearman.
Subsequently, and before the trial, a new sheriff was inducted into office, and, while transporting the appellant from the Pearl River county jail to the Lamar county jail, asked the appellant, in substance, whether he was going to plead guilty or fight the case, to which the appellant replied, in substance, that there was no use in lying about it, that he killed John Dearman.
When these statements of the sheriffs were offered in evidence, the appellant objected; but the sheriff and others testified that there were no threats made and no hope of reward held out, and that the appellant's statements to the questions asked him were voluntarily made without fear of punishment, or hope of reward.
At that time, there was no offer on the part of the appellant to produce any testimony in his behalf upon this proposition; but, afterwards, the appellant went upon the stand and testified, in detail, as to the circumstances of the killing, stating that he killed Dearman, but gave as a reason for so doing, that he and Dearman had been, for many years, engaged in stealing various things in the community from neighbors, and that he desired to abandon this stealing enterprise, and that Dearman objected to his doing so, and threatened him with violence if he did so. He further testified that he left Dearman's house in the early part of 1931 in order to get away from the deceased and to abandon this stealing; that the deceased had written him letters requesting him to return, and promising that he (deceased) would not insist upon the appellant going into any more stealing enterprises. Appellant further testified that after he did return, the deceased had picked out some hogs belonging to another party and desired the appellant to go with him and assist him in stealing them; that he (appellant) remonstrated and refused to do this, and that the deceased threatened him, stating that if he did not do so, he would kill him, and gave him a certain time in which to make up his mind; and that the appellant, if he did not agree to assist the deceased, would live no longer than the date mentioned.
Appellant admitted that he went to Sumrall on the morning of December 26th; borrowed a gun, but stated that he wanted the gun not to go hunting, but to kill the deceased with; that he fired some of the birdshells purchased to test the gun; and that he killed the deceased with buckshot as above stated.
It was contended by the appellant and some witnesses introduced by him that he was not entirely normal; that he had been struck on the head, some years before the killing, by some machinery connected with a skidder, being badly hurt in his head; and that since that time, at periods, he was not normal mentally. Other witnesses testified that he was knocked down on one occasion subsequent by a man, and that the wife of the deceased was present and took the part of the appellant, using expressions of endearment and sympathy.
It was further testified that the neighbors heard the shots at the time the deceased was killed, but heard no screams until the wife of the deceased came within a short distance of the home of one of the witnesses which was nearly a mile from the scene of the homicide, when she began to scream.
Quite a number of witnesses testified that the appellant was normal and knew right from wrong, and that they had never noticed anything to make them think he was insane, or that he did not know the nature, quality, and consequences of his acts.
There was objection to the alleged confession, and its admission is one of the assignments of error here.
In the first place, we think there was ample evidence to warrant the admission of the confession; that it was a free and vountary utterance made to the sheriff; and that there was no effort, on the part of the appellant, to testify as to duress, hope of reward, or to threats made to elicit such confession, at the time the confession was first offered.
The case proceeded, after the admission of the confession, until the state finished its testimony, when, as stated above, the appellant offered himself as a witness in opposition to the confession. The court then stated that, if he was offered as a witness on one point, he would be a witness for all purposes. He, thereupon, took the stand and testified, giving a clear and consistent narrative of the killing and the circumstances leading thereto.
There is nothing in the record, so far as shown by his testimony, that would indicate that appellant was not a normal person, with sufficient intelligence to know right from wrong. The admission of testimony as to the confessions was proper because, at the time, it was admitted there was nothing whatever to show that it was not free and voluntary. The appellant's testimony and that of others as to his mental condition were admitted and considered by the jury under liberal instructions which told the jury that, if after consideration of the testimony of appellant, with the other testimony in the case, the jury thought the confession was obtained unlawfully, either through fear, or hope of reward, they might not consider same as evidence against the defendant.
But, even if such confession had been wrongfully admitted, it was rendered harmless by the appellant taking the stand himself and testifying to the same facts as a witness in the case. Had the appellant offered himself as a witness at the time the confession was first offered, and asked that his testimony and that of the other witnesses, as to the confession being free and voluntary, be heard out of the presence of the jury, he could have testified on that question alone before the judge in the absence of the jury.
There was, therefore, no error in admitting evidence as to the confession.
Evidence as to his mental condition and as to his responsibility for his acts and his understanding of the nature, quality, and consequences of his acts, was for the jury on conflicting evidence.
Numerous instructions were given to the appellant presenting his cause as favorably to the jury as he was entitled to have it.
The question as to whether the appellant should be hanged for his crime, or sent to the penitentiary for life therefor, was for the jury, and we have no power to overrule what they have done, nor would we, on this record, be warranted in so doing if we had the power.
It would seem from the evidence in this case that this murder was as atrocious as one could well be, and the appellant deserved the death penalty. The judgment of the court below will, therefore, be affirmed.
Affirmed, and Thursday, December 1, 1932, fixed as the date of execution.