Opinion
No. 32203.
June 8, 1936.
1. CRIMINAL LAW.
In prosecution for rape, admission of three confessions of defendant held reversible error, where first was made to obtain protection from threatened mob violence, and where it did not appear that defendant had been relieved from fear of violence at time of making subsequent confessions.
2. CRIMINAL LAW.
Where subsequent confession is made shortly after one that was coerced, inference of coercion is presumed to continue unless and until it is clearly shown to have been removed.
APPEAL from circuit court of Harrison county. HON. O.F. Moss, Special Judge.
M.D. Brown, of Gulfport, for appellant.
The defendant should never have been put to trial on the indictment, on account of the mental condition of the defendant.
Bush v. State, 52 So. 21; Cunningham v. State, 65 So. 269; Ford v. State, 73 Miss. 734, 19 So. 665; 35 L.R.A. 117; 22 Cyc. 1118, 1119, note 37, 1119, 1212 and 1214.
The defendant's testimony proves beyond every doubt the insanity of the defendant, especially to the extent to meet the rule, if he is or was unable to defend himself, was not his counsel improperly defending him. Therefore, we submit the court should have found him insane and committed him to the asylum until he became sane.
22 Cyc. 1136, sec. 11; Secs. 13, 41 and 3373, Code of 1930.
The testimony of both Dr. Mitchell and Dr. Marshall is to the effect that the defendant was born a moron and would always be in the same condition and unable to make a defense and aid his counsel in making a defense for him, hence the confinement in the insane hospital would have been final — always — and this would have been the end of this case. Hence an appeal should have been granted to determine that question.
The evidence must show beyond a reasonable doubt not only the identity of the accused, but also that he committed an overt act amounting to an attempt.
33 Cyc. 1493, note 70.
Without the confessions there is no proof at all that the child was actually raped and no proof at all connecting the defendant with the charge, and we respectfully submit, at this stage of the trial, the corpus delicti had not been established, and in fact was never established, and submit the following authorities to sustain our contention.
Stringfellow v. State, 26 Miss. 157, 1 Mor. St. Cas. 691, 59 Am. Dec. 247; Pitts v. State, 43 Miss. 472; Sam v. State, 33 Miss. 347; Jenkins v. State, 41 Miss. 582; Stanley v. State, 82 Miss. 498, 34 So. 360; Bolton v. State, 54 So. 241; Pringle v. State, 108 Miss. 802, 67 So. 455; 33 Cyc. 1493 and 1475; State v. Hull, 45 W. Va. 767, 32 S.E. 240; Noonan v. State, 55 Wis. 258, 12 N.W. 379.
As to the alleged confessions, we submit that not one of them meets the requirements of law, to make any one of them competent and admissible, and each one was strenuously objected to from the first to the last, that is, that any one was a free and voluntary confession.
The rule as to the second or subsequent confession, unless shown it was free from the influence, which made the first confession inadmissible.
Banks v. State, 93 Miss. 700, 47 So. 437; Reason v. State, 94 Miss. 290; Simmons v. State, 61 Miss. 243; Cody v. State, 44 Miss. 332; Peter v. State, 12 Miss. 31.
Webb M. Mize, Assistant Attorney-General, for the state.
It is elemental law which needs no citation of authority that the trial court's finding of fact is conclusive, unless unsupported by evidence and manifestly wrong.
Mere weakness of intellect, or imbecility of mind, does not excuse or exonerate capacity and reason sufficient to enable him to distinguish between right and wrong, as to the particular act he is doing.
The law presumes every person, of the age of discretion, to be of sufficient capacity to form a criminal purpose; to deliberate and premeditate upon acts which malice, anger, hatred, revenge, or other evil disposition might impel to perpetrate; and, to defeat this legal presumption, the mental alienation relied upon must be affirmatively established, by positive or circumstantial evidence.
It is not sufficient to show that such a state of mind was possible, nor is it sufficient if the proof merely shows it to have been probable.
Newcomb v. State, 37 Miss. 383.
We are all familiar with the true test as whether or not the defendant is able to distinguish between right and wrong. This was not satisfactorily brought out on the trial of the sanity issue and the court was well warranted in finding the defendant sane.
Smith v. State, 95 Miss. 786, 49 So. 945.
There was some testimony, however, tending to show that defendant had an ungovernable temper, but this is not insanity of sufficient scope to excuse crime.
Garner v. State, 112 Miss. 317, 73 So. 50; Bovard v. State, 30 Miss. 600.
Where there has been a confession, the proof of the corpus delicti must be established only to the extent that it satisfies the mind that a real and not an imaginary crime has been committed.
Nichols v. State, 165 Miss. 114, 145 So. 903; Heard v. State, 59 Miss. 545; Walker v. State, 127 Miss. 246, 89 So. 921; Patterson v. State, 127 Miss. 236, 90 So. 2; Garner v. State, 132 Miss. 815, 96 So. 743; Crabb v. State, 152 Miss. 602, 120 So. 569; Pope v. State, 158 Miss. 794, 131 So. 264; Perkins v. State, 160 Miss. 720, 135 So. 357; Whittaker v. State, 169 Miss. 517, 142 So. 474.
Counsel for appellant raises the question that preliminary inquiry as to the admissibility of a confession should be raised by the court in the absence of the jury. The rule of law is that preliminary inquiry should be made in the absence of the jury if requested by defendant.
Ellis v. State, 65 Miss. 245, 3 So. 188; Lee v. State, 137 Miss. 329, 102 So. 296; Randolph v. State, 152 Miss. 48, 118 So. 354; Fletcher v. State, 159 Miss. 41, 131 So. 251; Jackson v. State, 163 Miss. 235, 140 So. 683; Dobbs v. State, 142 So. 500.
All confessions were freely and voluntarily made.
Mathis v. State, 80 Miss. 591, 32 So. 61; Dummore v. State, 86 Miss. 788, 39 So. 69; Taylor v. State, 158 Miss. 505, 130 So. 502; Tyler v. State, 159 Miss. 223, 131 So. 417; Perkins v. State, 160 Miss. 720, 135 So. 357; Weatherford v. State, 143 So. 853; Dickson v. State, 143 So. 855.
This is an appeal from a conviction for the forcible rape of a girl eleven years old. At the request of counsel for the appellant, the court inquired into the present sanity of the appellant, and on the evidence properly held that he was then sane.
The principal assignment of error is that the court below erred in admitting three confessions of the appellant, the grounds of the objection being (a) the corpus delicti was not sufficiently proven aliunde the confessions, and (b) the confessions were coerced.
The evidence as to the corpus delicti is amply sufficient, under prior decisions of this court, to justify the admission of the confessions, but the evidence discloses that they were coerced, and for that reason should have been excluded; proper and seasonable objections having been made several times thereto. The crime was committed in Gulfport, Miss., between midnight and day. The girl did not know who her assailant was, but, suspicion being directed toward the appellant, he was arrested the next night at his lodgings in Gulfport by two police officers. Feeling then was running high against the appellant; a number of people were looking for him and a mob was evidently forming. These police officers, in order to avoid contact with others who were looking for the appellant, carried him to a vacant lot and there vigorously questioned him for about an hour or an hour and a half, resulting in his confessing to them that he committed the crime. It is clear, however, when the testimony of all of these officers, three in number, is examined, that what occurred was that the officers informed the appellant of his danger from a mob, and that if he confessed the crime, they would take him to Jackson to a place of safety, but that, if he did not, they would have to take him to the girl assailed and her family for identification, in which event they might not be able to protect him from a mob. This is not the exact language of the officers, but is the unmistakable inference therefrom. After asking them to take him to Jackson for safety, the appellant made his confession. He was then hurried to Jackson and placed in jail there. The next morning, at the request of one of the officers who accompanied him to Jackson, the county attorney for Hinds county came to the jail and the appellant repeated the confession in his presence, during which he was told that, if he would plead guilty, he would not be hung. Several days thereafter the appellant was carried back to Gulfport and again confessed the crime in the presence of the county attorney for Harrison county.
It is clear from this evidence that the first of these confessions was made by the appellant in order to obtain protection from threatened mob violence, and it does not appear that, when he made the two subsequent confessions, he had been relieved from that fear and that they were not made because thereof. On the contrary, it is reasonably clear that the same inducement still motivated him, and this court, in a long line of cases, e.g., Whitley v. State, 78 Miss. 255, 28 So. 852, 53 L.R.A. 402; Mackmasters v. State, 82 Miss. 459, 34 So. 156; Reason v. State, 94 Miss. 290, 48 So. 820; Whip v. State, 143 Miss. 757, 109 So. 697, has held that, where a subsequent confession is made shortly after one that was coerced, the inference of the coercion is presumed to continue unless and until it is clearly shown to have been removed.
Reversed and remanded.