Opinion
No. 35467.
April 10, 1944.
1. CRIMINAL LAW.
Where murder confession appeared to have been voluntarily made, it was not error to admit the same in evidence without first hearing testimony to support objection that it was involuntary, in the absence of an offer to prove the involuntary nature of the confession or of a request for a preliminary investigation of the matter.
2. CRIMINAL LAW.
The trial court has the right to conduct investigation whether confession was voluntary if he suspects that it may have been obtained under such circumstances as to indicate that it was not voluntary, but he is not required to do so in absence of a request therefor.
3. CRIMINAL LAW.
Where the objection to admission of a confession was merely general and not made until after the same had been read to the jury, and the specific complaint that the same was involuntary was not raised at any time throughout the trial, admitting confession in evidence was not error.
4. CRIMINAL LAW.
A requested instruction that jury should disregard defendant's confession if they believed it was obtained through promise of assistance or hope of reward or through threats or injury was properly refused, since it was the province of trial judge, and not of the jury, to decide issue whether confession was free and voluntary.
5. CRIMINAL LAW.
Requested instruction that jury should disregard confession if they believed that it was obtained through any promise of assistance or hope of reward or through threats or injury was properly refused, where no evidence was offered tending to show that confession was obtained in manner suggested.
6. CRIMINAL LAW.
Defendant's statement, made to the court when arraigned on murder charge, that she was guilty, and that she wanted two persons implicated with her turned loose, was properly admitted.
7. CRIMINAL LAW.
Error could not be predicated on contention that defendant and her two alleged accomplices in murder should have been tried together, where the co-defendants asked for a severance and were entitled thereto as a matter of right.
8. HOMICIDE.
Where the corpus delicti was clearly established, defendant's confession was freely and voluntarily made and was consistent with physical facts, and guilt was proved beyond a reasonable doubt, conviction of murder was affirmed.
APPEAL from the circuit court of Warren county, HON. R.B. ANDERSON, Judge.
Vance W. Good, of Vicksburg, for appellant.
Confessions induced by fear, though not aroused by spoken threats, are nevertheless "involuntary," because the fear which takes away the freedom of the mind may arise solely from conditions and circumstances surrounding the confessor.
Fisher v. State, 145 Miss. 116, 110 So. 361.
Defendant objected to the alleged confessions throughout the trial, both written and oral, of the defendant, because the testimony showed that said confessions, especially the written confession, were obtained under circumstances that amount practically to force and compulsion, and because the defendant was not advised of her rights at the time during the securing of said alleged confessions and the manner of obtaining them was without due process of law.
In the indictment in this case, Jessie James and Charles H. Bartley, Jr., were indicted jointly with the defendant. Would it not have been in accord with correct legal rights and practice to have tried all of the defendants for the crime charged in the indictment, as shown by the record, and thereby ascertain which of the three were guilty, if guilty at all.
The following instruction was requested by the defendant and refused by the court: "The Court instructs the jury for the defendant that if they believe from the evidence that the statements or confession made by the defendant were obtained through any promise of assistance or hope of reward or benefit, or threats, fear or injury, such statements or confession is inadmissible, and it is your sworn duty to totally disregard them." We think the defendant was entitled, under the evidence introduced by the state, to this instruction.
Witness Buchanan was permitted to testify, over the objection of the defendant, relative to a remark which he said he heard the defendant make in court just before she was arraigned, to the effect that the two men indicted with her were not guilty. He testified, "And she turned around and said to Judge Anderson, `Judge, I am guilty; I want the two men turned loose.'" No one seems to have heard the defendant make that statement except the lone witness Buchanan. We think it was reversible error for the court to permit this testimony, over objection of the defendant, to be given.
Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, for appellee.
The appellant assigns as error the admission of the confession and evidence on the ground that it was obtained by duress and was not free and voluntary on her part and also argues that her statement to the court that she was guilty and wanted the two men turned loose, as testified to by Sheriff Buchanan, was inadmissible and assigns as error the refusal of an instruction requested by appellant.
Miss Doris Fleming, who took down the confession in shorthand and later transcribed the same, testified that the confession was freely and voluntarily made on the part of appellant.
No request was made by counsel for appellant that a preliminary examination be held in the absence of the jury as to the competency of the admissibility of the confession. No testimony was offered on the part of appellant to show that the confession was not free and voluntary. No evidence was introduced in behalf of the appellant in the trial of the case, the defense resting its case when the state rested.
Counsel for appellant contends that it was error for the court to permit the written confession and the oral confession as testified to by Sheriff Buchanan. Both were admissible in evidence when it was shown that they were free and voluntary statements.
Tyler v. State, 159 Miss. 223, 131 So. 417.
The confession in this case is also consistent with all the physical facts and circumstances connected therewith, even to the extent of the book which was located and introduced in evidence, which book the appellant told the officers that she took out of Mrs. Conklin's home on the day of the murder and later threw away; that the appellant accompanied the officers and found this book in the grass where she threw it.
Cooper v. State, 194 Miss. 592, 11 So.2d 207.
The next assignment of error argued is that the court erred in refusing the requested instruction for appellant, advising the jury that if the confession was obtained by or through threats, fear or injury, such confession was inadmissible and that they would totally disregard same. This instruction was properly refused.
Brooks v. State, 178 Miss. 575, 173 So. 409.
Counsel for appellant also suggests that it would have been correct, or the better practice, to have tried all three of the defendants jointly. The answer to this is that a motion for severance was made by Jessie James and Charles H. Bartley, Jr., who were jointly indicted with the appellant, and the motion was sustained.
Prior to her trial and conviction of the murder of Miss Annie Laura Conklin, an elderly lady, who was brutally beaten to death with a stick, fire-poker, and a pair of tongs in her home, at Vicksburg, where she lived alone, the appellant, Mildred Louise Johnson, alias Mildred Louise James, made at first a full confession of her participation in the crime, implicating two other persons, her common law husband, Jessie James, and father-in-law, Charles H. Bartley, Jr., but later when being arraigned under the indictment in open court, announced to the trial judge that she alone had committed the crime and wanted the two men "turned loose." Thereupon a severance was granted to her said co-defendants, named in the indictment, upon their motion in that behalf, and the appellant was thereafter tried before a jury, found guilty as charged, and sentenced to death.
The proof on behalf of the state aliunde the confession disclosed that prior to the finding of the body of Miss Conklin at about 9 o'clock p.m., the appellant was seen in the yard of her victim on two different occasions during the afternoon of the day on which the murder was committed; that on the second occasion, she was carrying a suitcase or handbag, later found in the possession of a taxicab driver and which was being held by him for her fare because of the fact that she had been arrested on a charge of drunkenness and placed in jail before paying for the taxi service. In this handbag was found a shirtwaist on which there were bloodstains, and in the pocket of which there was a receipt signed by the deceased in favor of the appellant for house rent. In the confession, given on the next morning, the appellant acknowledged that this handbag belonged to her, that the shirtwaist found therein was her property, that the bloodstains thereon were from the wounds of the deceased, and that the receipt for rent was given to her by the deceased on the occasion of the murder. On the skirt and shoes worn by the appellant when arrested, there was found blood, which she admitted, in her confession, had come from the wounds inflicted on the deceased by her alleged accomplices in crime. It also appears that someone had taken from the scene of the killing a little book which contained certain receipts signed by other persons in favor of the deceased, and the appellant accompanied the officers to a place where she had advised them in advance that she had thrown this book in some Johnson grass, and where she then found the same and turned it over to them.
The details of what had transpired at the home of the deceased were related to the officers by the appellant freely and voluntarily, so far as the proof in this record shows. In fact, no proof was offered upon the trial whereby the truth of this confession was denied or by which the same was claimed to have been obtained through threats, intimidation, promises, or any hope of reward. Nor was there any request for a preliminary investigation by the court in the absence of the jury as to whether or not the confession was free and voluntary. While the court should determine, prior to permitting a confession to go to the jury, whether it was or was not voluntary, it is not error to admit the same in evidence, when it purports to have been made voluntarily, as against an objection that it was involuntary, without first hearing testimony to support the objection, in the absence of an offer on the part of the defendant to prove the involuntary nature of the confession or of a request for a preliminary investigation of the matter. State v. Roland, 336 Mo. 563, 79 S.W.2d 1050, 102 A.L.R. 601, and cases cited under the A.L.R. annotation thereof; 22 C.J.S., Criminal Law, p. 1468, Sec. 838, whereunder is cited People v. Knox, 302 Ill. 471, 134 N.E. 923; Ellis v. State, 65 Miss. 44, 3 So. 188, 7 Am. St. Rep. 634; Lee v. State, 137 Miss. 329, 102 So. 296; Randolph v. State, 152 Miss. 48, 118 So. 354; and Dobbs v. State, 167 Miss. 609, 142 So. 500, wherein it is held that the failure of the trial court to make the preliminary investigation is not error unless he is requested to do so by the defendant. Obviously, the trial judge would have the right to conduct such an investigation of his own motion if for any reason he should suspect that the confession may have been obtained under such circumstances as to indicate that it was not free and voluntary, but he is not required to do so in the absence of a request therefor. Moreover, when the confession of the accused was offered in evidence in the case at bar, the objection thereto, which was not made until after the same was read to the jury, was general, the specific complaint that the same was involuntary not having been made at any time throughout the trial. Hence, no error can be predicated upon the ruling of the trial court in that behalf.
The appellant also complains that the trial court was in error in refusing the following instruction: "The court instructs the jury for the defendant that if they believe from the evidence that the statements or confession made by her were obtained through any promise of assistance or hope of reward or through threats, fear, or injury, such statements or confession is inadmissible, and it is your sworn duty to totally disregard them." This instruction was properly refused for two reasons: (1) because it was the province of the trial judge, and not of the jury, to decide the issue as to whether the confession was free and voluntary before admitting the same in evidence; and (2) there was no evidence offered which tended to show that the confession was obtained in the manner suggested by the instruction, even if that question had been one for the determination of the jury.
It is further contended on behalf of the appellant that the trial court was in error in admitting testimony before the jury in regard to the statement made to the trial judge by the appellant when she was being arraigned, when she said: "Judge, I am guilty; I want the two men turned loose." But we are unable to see on what ground it can be said that this statement of appellant was inadmissible.
Finally, it is claimed that the appellant and her two alleged accomplices should have been tried together. Manifestly, no error can be predicated on that contention, since her co-defendants asked for a severance and were entitled thereto as a matter of right. The trial court had no discretion except to sustain their motion in that behalf.
The corpus deliciti was clearly established, the confession of the accused was consistent with the physical facts, and having been freely and voluntarily made, her guilt was proved beyond any reasonable doubt; and the judgment and sentence of death must, therefore, be affirmed, since we find no error was committed by the lower court upon the trial. Wherefore, the date for the execution of the death sentence is fixed for Friday, May 19, 1944.
Affirmed.