Summary
In Brooks v. State, 178 Miss. 575, 173 So. 409, this Court said: "The instruction in effect, submits to the jury the admissibility vel non of the evidence of the confessions, with which the jury have nothing to do. The admissibility of a confession is for determination of the trial judge, and, when admitted, the jury may consider it in the light of the evidence by which it was obtained and give it such weight and credibility as they think it is entitled."
Summary of this case from Andrews v. StateOpinion
No. 32596.
March 22, 1937. Suggestion of Error Overruled April 26, 1937.
1. HOMICIDE.
Instruction that burden was on state in murder trial to prove that deceased was murdered before jury could consider evidence of confession held properly refused as erroneously defining "corpus delicti" and barring consideration of confession in determining whether corpus delicti was established.
2. CRIMINAL LAW.
Jury is not always precluded from considering confession in determining whether corpus delicti was established.
3. HOMICIDE.
"Corpus delicti" in homicide case consists of facts of deceased's death and existence of criminal agency as cause thereof.
4. HOMICIDE.
Whether criminal agency, employed to cause death, renders crime committed thereby murder or lesser offense is no part of corpus delicti, but is for jury to determine on all evidence.
5. CRIMINAL LAW.
While corpus delicti must be proved aliunde extra judicial confession of crime charged, jury is not precluded under every state of evidence from considering confession in determining sufficiency of evidence aliunde to establish corpus delicti.
6. CRIMINAL LAW.
Slighter evidence is sufficient to establish corpus delicti of crime confessed by defendant; all that is necessary being for jury to believe that such evidence, viewed in light of confession, is sufficient to establish confession of real, not imaginary, crime.
7. CRIMINAL LAW.
Trial judge committed no error in erasing words, "and any other confession made shortly thereafter," from defendant's requested instruction, given as thus modified, that if jury believed from evidence that or had reasonable doubt as to whether defendant's confession was coerced by fear, intimidation, or force, its duty was to refuse to consider "such confession and any other confessions made shortly thereafter."
8. CRIMINAL LAW.
Defendant's requested instruction not to consider defendant's confessions, if jury believed from evidence that or had reasonable doubt as to whether they were coerced by fear, intimidation, or force, held erroneous as submitting to jury admissibility vel non of evidence of confession, which is for trial judge to determine.
9. CRIMINAL LAW.
Jury may consider confession, admitted in evidence by trial judge, in light of evidence of how it was obtained and give it weight and credibility to which they think it entitled, but should not reject it entirely, unless they believe from evidence that it is false.
10. CRIMINAL LAW.
Defendant, accepting and using instruction requested by him, as modified by trial court, cannot complain of modification thereof.
11. CRIMINAL LAW.
Supreme Court must assume that defendant's requested instruction, as modified by trial court, was read to jury, where record on defendant's appeal does not disclose that he declined to accept instruction as so modified.
12. CRIMINAL LAW.
Errors in granting and refusing instructions do not warrant reversal of judgment, unless it appears that defendant was prejudiced thereby.
13. CRIMINAL LAW.
Supreme Court cannot reverse judgment of conviction for errors in granting and refusing instructions as to consideration of confessions in determining whether corpus delicti was established, in absence of evidence on which instructions were based.
APPEAL from the circuit court of Sharkey county. HON.E.L. BRIEN, Judge.
Brewer Hewitt, of Jackson, for appellant.
The defendant, appellant here, requested the following instruction, which request was denied: "The court instructs the jury for the defendant that the burden of proof is upon the state at all stages of this case which includes proof that E.W. Cook was murdered and to establish this as one of the evidences of guilt before they can consider any evidence offered in the way of a confession and if you fail to find that he was so murdered, it is your duty to acquit. In other words, the burden of proof is upon the state in this cause to prove that Mr. Cook was murdered independently of any statement of the defendant."
In a capital case the state must prove the corpus delicti independently of any statement of the defendant.
Stringfellow v. State, 26 Miss. 157; Pitts v. State, 43 Miss. 472.
The various rules involving proof of the corpus delicti in connection with confessions which have been announced in more recent decisions by this court, which to this writer are not all in harmony, all seem to be based on the case of Heard v. State, 59 Miss. 545. It should be noted that the Heard case was not one involving a capital offense and also that it does not in any way conflict with the general rule heretofore announced in this brief.
This is a capital case and therefore great caution should be exercised in securing and preserving all rights of the accused under the law. The right to have the jury instructed on this vital point was and is a substantial one and the refusal of the court below so to do is unquestionably reversible error.
Stringfellow v. State, 26 Miss. 157; Jenkins v. State, 41 Miss. 583; Pitts v. State, 43 Miss. 472; Bolden v. State, 98 Miss. 723, 54 So. 241; Rayborn v. State, 115 Miss. 730, 76 So. 639.
The corpus delicti must be proven by evidence aliunde the appellant's confession.
Sykes v. State, 157 Miss. 600, 128 So. 753; Butler v. State, 129 Miss. 778, 93 So. 3; Williams v. State, 129 Miss. 469, 92 So. 584; Miller v. State, 129 Miss. 774, 93 So. 2; Rayborn v. State, 115 Miss. 730, 76 So. 639; Garner v. State, 132 Miss. 815, 96 So. 743; Floyd v. State, 138 Miss. 697, 103 So. 368; Owen v. State, 159 Miss. 588, 132 So. 753; Perkins v. State, 160 Miss. 720, 135 So. 357; Keeton v. State, 167 So. 68.
Where a confession is made on account of fear, intimidation or force, a subsequent confession is inadmissible until such influence is shown to have been removed.
Boudreaux v. State, 168 So. 621. Wm. H. Maynard, Assistant Attorney-General, for the State.
The lower court properly refused to grant appellant's instruction. Appellant argues that this instruction is merely to the effect that the corpus delicti must be shown aliunde a confession in order to warrant a conviction. This is not our interpretation of this instruction. We recognize the rule laid down in the cases of Stringfellow v. State, 26 Miss. 157; Jenkins v. State, 41 Miss. 582; Pope v. State, 158 Miss. 794, 131 So. 264; Owen v. State, 159 Miss. 588, 132 So. 753; Morton v. State, 136 Miss. 284, 101 So. 379; Nichols v. State, 165 Miss. 114, 145 So. 903; Perkins v. State, 160 Miss. 720, 135 So. 357; Whittaker v. State, 169 Miss. 517, 142 So. 474; Heard v. State, 59 Miss. 545, that before a confession can be admitted in evidence against the person accused of the crime the corpus delicti must first be shown by evidence aliunde said confession.
However, appellant has confused the meaning of corpus delicti as applied to a charge of murder. This confusion has led to a fatal mis-statement in the instruction asked for. It will be noted by the court that this instruction, if given, would have directed the jury that it must find that E.W. Cook was murdered before it could consider any confession of appellant. The closing words of said instruction clearly demonstrates this where it said "In other words, the burden of proof is upon the state in this cause to prove that Mr. Cook was murdered independently of any statement of the defendant."
As pointed out clearly by this court in the case of Perkins v. State, 160 Miss. 720, 135 So. 357, the corpus delicti in a murder case consists of (1) the death of the person alleged to be murdered and (2) that said death was caused by a criminal agency. It can be seen from this enunciation by the Supreme Court that it is not necessary, in order to establish the corpus delicti in such cases, that it be proved that the person who is claimed to have been killed was murdered. It is sufficient to show that said person came to death by a criminal agency. If it were necessary, in order to establish corpus delicti in a murder case, that a person would have to be proved to have been murdered, then no conviction for manslaughter could occur. Thus, it is not necessary to establish that a murder has been committed before a confession may be introduced, but it is only necessary to show that a real and not an imaginary crime has been committed.
Walker v. State, 127 Miss. 246, 89 So. 921; Patterson v. State, 127 Miss. 256, 90 So. 2; Garner v. State, 132 Miss. 815, 96 So. 743; Perkins v. State, 160 Miss. 720, 135 So. 757.
The appellant was convicted of murder and sentenced to be hanged. The evidence introduced on the trial was not made a part of the record, and consequently does not appear therein.
The assignments of error complain (1) of the refusal of the court to grant an instruction requested by the appellant; and (2) of the modification of one of appellant's requested instructions.
The instruction refused reads as follows:
"The court instructs the jury for the defendant that the burden of proof is upon the state at all stages of this case which includes proof that E.W. Cook was murdered and to establish this as one of the evidences of guilt before they can consider any evidence offered in the way of a confession and if you fail to find that he was so murdered, it is your duty to acquit. In other words, the burden of proof is upon the state in this cause to prove that Mr. Cook was murdered independently of any statement of the defendant."
This instruction was intended to direct the jury not to consider the evidence of a confession unless and until they should find aliunde the confession that the person alleged to have been killed was murdered. There are two defects therein: (1) It erroneously defines the term "corpus delicti" in a murder case and (2) it is not true that the jury is always precluded from considering a confession when determining whether the corpus delicti has been established.
In a homicide case, the corpus delicti is: "1st. The fact of the death of the deceased; and 2d. The fact of the existence of criminal agency as the cause of the death." Pitts v. State, 43 Miss. 472; Perkins v. State, 160 Miss. 720, 135 So. 357. Whether the criminal agency employed renders the crime committed thereby murder or a lesser offense is no part of the corpus delicti, but is for the determination of the jury on all the evidence.
It is true that the corpus delicti must be proved aliunde an extra judicial confession of the commission of the crime charged; but it is not true that under no state of the evidence may the jury consider a confession in determining whether or not the evidence aliunde thereof is sufficient to establish the corpus delicti. Beginning with Heard v. State, 59 Miss. 545, this court has uniformly held that slighter evidence of the corpus delicti is sufficient for its establishment where the commission of the crime has been confessed by the defendant. All that is necessary is for the jury to believe that the evidence as to the corpus delicti, when viewed in the light of the confession, is sufficient to establish that a real, and not an imaginary, crime has been confessed. Walker v. State, 127 Miss. 246, 89 So. 921; Patterson v. State, 127 Miss. 256, 90 So. 2; Garner v. State, 132 Miss. 815, 96 So. 743; Perkins v. State, 160 Miss. 720, 135 So. 357.
The instruction said to have been modified reads, as it appears in the record, as follows:
"The court instructs the jury for the defendant that if they do not believe from the evidence or want of evidence or have a reasonable doubt as to the confessions being made free and voluntary on the part of the defendant and that the same were coerced by fear, intimidation or force, then it is the duty of the jury to refuse to consider such confessionsand any other confession made shortly thereafter while such fear or intimidation was in operation upon the mind of the defendant and to acquit the defendant.
"Given and filed as modified Oct. 19, 1936."
It does not appear from the record that the line through the words intended to be erased thereby was drawn by the trial judge, and for aught that appears it may have been in the instruction when presented to him; and, if this is true, there was, of course, no modification thereof. Assuming for the purpose of the argument that these words were erased from the instruction by the trial judge, no error was thereby committed, for the instruction, as requested, should have been refused. Louisville, N.O. T.R. Co. v. Suddoth, 70 Miss. 265, 12 So. 205. The instruction, in effect, submits to the jury the admissibility vel non of the evidence of the confessions, with which the jury have nothing to do. The admissibility of a confession is for the determination of the trial judge; and, when admitted, the jury may consider it in the light of the evidence by which it was obtained and give it such weight and credibility as they think it is entitled. They should not reject it entirely unless they believe from the evidence that it is false. Ellis v. State, 65 Miss. 44, 3 So. 188, 7 Am. St. Rep. 634; 2 Wigmore on Evidence (2 Ed.), section 861. Moreover, if the appellant accepted and used the instruction as modified, he cannot complain of the modification thereof. Williams v. State, 95 Miss. 671, 49 So. 513. The record does not disclose that the appellant declined to accept the instruction as modified, and we "must assume that" it was "read to the jury." Pullen v. State, 175 Miss. 810, 168 So. 69.
Finally, an error committed by a trial judge in the granting and refusing of instructions does not warrant the reversal of the judgment rendered, unless it appears that the appellant was prejudiced thereby; and, without the evidence on which the instructions were based, it is impossible for the court to determine this question. For aught that we may know, there may have been no evidence of confessions made by the appellant, or if there was, the evidence aliunde thereof may have clearly disclosed the existence of the corpus delicti; and, if there was evidence of subsequent confessions, it may also have clearly appeared therefrom that the illegal cause which induced the first, if such there was, had ceased to influence the appellant.
The judgment of the court below will be affirmed, and the sentence will be executed on Thursday, April 29, 1937.
So ordered.