Opinion
No. 32065.
May 11, 1936.
1. CRIMINAL LAW.
Confession of murder obtained after questioning defendant while he was being removed from one jail to another on which trip officer stated to defendant that he was being removed because "in these cases, we don't know the cause of the trouble" held not inadmissible as having been obtained under duress and fear of mobbing, where witnesses stated that confession was free and voluntary, that no duress was exercised, and that no clemency was promised to the defendant.
2. CRIMINAL LAW.
Record must show modification of instructions of which complaint is made and in absence of such showing, reviewing court must assume that instructions set out in record were read to jury, especially where appellant did not state that instructions were not so read.
3. HOMICIDE.
Motive is not an indispensable element of murder.
4. HOMICIDE.
In murder prosecution, instruction that insanity could not be a defense if defendant knew difference between right and wrong at time of alleged crime held not incomplete for failure to state that at time he committed act, defendant was able to realize and appreciate nature and quality thereof.
5. HOMICIDE.
In murder prosecution, evidence held insufficient to create reasonable doubt of defendant's sanity at time of homicide, and hence defendant could not complain that instruction on insanity was incomplete.
6. CRIMINAL LAW.
Defendant in murder prosecution was presumed to be sane.
APPEAL from circuit court of Montgomery county. HON. JOHN F. ALLEN, Judge.
J.W. Conger and Mary Sue Brannon, both of Winona, for appellant.
A confession, if made, has got to be made freely and voluntarily, without restraint, without coercion, in order to make it admissible in evidence.
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; Johnson v. State, 107 Miss. 196, 65 So. 218; Jones v. State, 133 Miss. 684, 98 So. 150; Banks v. State, 93 Miss. 700, 47 So. 437.
It is a general rule that a confession should not be admitted if there is any reasonable doubt as to whether it was freely and voluntarily made, and after its admission, if the testimony as a whole creates such a doubt, then it should be excluded.
Johnson v. State, 107 Miss. 196, 65 So. 218.
A confession must be free from the influence of any extraneous disturbing cause.
Simon v. State, 37 Miss. 288; Underhill on Criminal Evidence (2 Ed.), sec. 126; McMahon's case, 15 N.Y. 384 ; Ellis v. State, 65 Miss. 44, 3 So. 188; Williams v. State, 72 Miss. 117, 16 So. 296; State v. Smith, 72 Miss. 420, 18 So. 482; Simmons v. State, 61 Miss. 243; Bishop's New Criminal Procedure, sections 1237-38; Ammons v. State, 80 Miss. 592, 32 So. 9, 18 L.R.A. (N.S.) 768.
It was the business of the court (not the jury) to pass on the question of this confession, and if this court here believes there is a reasonable doubt about the admissibility of the confession, then it is the duty of this court to deny its admissibility, regardless of the consequences.
The evidence must exclude every reasonable doubt that the confession was freely and voluntarily made.
Whip v. State, 143 Miss. 757, 109 So. 697; Ellis v. State, 65 Miss. 44, 3 So. 188; 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; Ammons v. State, 80 Miss. 592, 32 So. 9, 18 L.R.A. (N.S.) 768; Whitley v. State, 78 Miss. 255, 28 So. 852; Fisher v. State, 145 Miss. 116, 110 So. 361; Hampton case, 88 Miss. 257, 40 So. 445.
There was an obstinate denial of any connection with the crime on the part of defendant always — although the persistent demands of the officers continued — and he still was denying — until the marshal of Winona and his co-officer got the defendant just under the valley hill in the darkness of the night in the delta in a strange place, on the road from Winona to Greenwood, and he was told the reason he was being scurried out of Montgomery County, and then it was, as stated by the officer, "some of his statements were voluntary on his part."
If a confession is of doubtful admissibility, it should be rejected.
State v. Smith, 72 Miss. 420, 18 So. 482.
Evidence that is obtained in the way of coercion is not admissible.
McMaster case, 82 Miss. 459, 34 So. 156; Peter v. State, 4 S. M. 31; Van Buren v. State, 24 Miss. 516; Simon v. State, 37 Miss. 288; Williams v. State, 72 Miss. 117, 16 So. 296; Whitley v. State, 78 Miss. 255; Ammons v. State, 80 Miss. 592; Ellis v. State, 65 Miss. 44, 3 So. 188, 7 Am. State Rep. 634; Reason v. State, 94 Miss. 290, 48 So. 820.
The burden was upon the state to prove by positive evidence that the homicide was committed by the defendant and that he committed it in a lucid interval. This is so, for the reason that it is shown by the evidence that the defendant had been for a long time prior to that date suffering with some form of habitual insanity. It is certainly true beyond all argument that the evidence raised a reasonable doubt that the defendant was sane at the time of the homicide.
Ford v. State, 19 So. 665; Ford v. State, 83 So. 291; Cunningham v. State, 56 Miss. 269; Hoye v. State, 162 So. 644; Smith v. State, 95 Miss. 786, 49 So. 945, 27 L.R.A. (N.S.)
The defendant did not have a fair trial.
If there arises from the evidence from any quarter a reasonable doubt as to the sanity of the accused, the presumption of law as to his sanity is overcome.
Thomson v. State, 83 So. 291, 78 Fla. 400; Cunningham v. State, 56 Miss. 276; Pollard v. State, 53 Miss. 410; State v. Flye, 26 Me. 312; Commonwealth v. Kimball, 24 Pick. 373; Commonwealth v. Dana, 2 Met. 340; Ogletree v. State, 28 Ala. 693; Ford v. State, 19 So. 665.
When a prima facie case is made out, the burden of proof is not thereby shifted on the defendant. He is not bound to restore himself to the presumption of innocence which invested him in the commencement of the action. That does not take away from the defendant the presumption of innocence; but the presumption remains in aid of any other proof which the defendant may offer to rebut the prima facie case made out by the state. It has been frequently judicially declared that establishing a prima facie case made out by the state in a criminal prosecution does not change the burden of proof.
State v. Flye, 26 Me. 312; Commonwealth v. Kimball, 24 Pick. 373; Commonwealth v. Dana, 2 Met. 340; Ogletree v. State, 28 Ala. 693.
In a prosecution for murder defendant is entitled to an acquittal if the evidence shows a reasonable doubt as to his sanity at the time of the homicide.
Ford v. State, 19 So. 665.
There can be no crime without mental accountability and it is just as essential to show the conscious mind as the unlawful act. But it is said that the law presumes sanity, so the law presumes malice from the fact of the killing; but if anything in the testimony, either of the state or the accused, suggests a reasonable doubt of the existence, nobody ever supposed that the state could stop short of removing this doubt, and of establishing the malice to a moral certainty.
Cunningham v. State, 56 Miss. 269; Pollard v. State, 53 Miss. 410, 24 Am. Rep. 703; People v. McCann, 16 N.Y. 58, 69 Am. Dec. 642; People v. Bartlett, 43 N.H. 224, 80 Am. Dec. 154; State v. Crawford, 43 Kan. 32; Hopp v. State, 31 Ill. 385, 83 Am. Dec. 154; Polk v. State, 19 Ind. 170, 81 Am. Dec. 382; Ogletree v. State, 28 Ala. (N.S.) 701; Cochran v. State, 61 So. 187, 65 Fla. 81; Mizell v. State, 63 So. 1000, 184 Ala. 16; Parsons v. State, 2 So. 854, 81 Ala. 577; State v. Felter, 25 Iowa 68; Bradley v. State, 31 Ind. 492; Harris v. State, 18 Tex. App. 287[ 18 Tex.Crim. 287], 6 Am. Crim. Rep. 357; State v. Jones, 50 N.H. 369, 9 Am. Rep. 242; Keil v. Commonwealth, 5 Bush. 362; Smith v. Com., 1 Duv. 224; Dejarnette v. Com., 75 Va. 867; Coyle v. Com., 100 Pa. 573; Cunningham v. State, 56 Miss. 268; State v. Johnson, 40 Conn. 136; Anderson v. State, 43 Conn. 514; State v. Mewherter, 46 Iowa 88.
Where insanity is of a continuous nature or characterized by an habitual disorderly mind, and it existed at or before the commission of the crime, it will be presumed to continue up to such act.
Cochran v. State, 61 So. 187, 65 Fla. 81.
One cannot be held guilty of homicide where he is so afflicted with a mental disease that he has so far lost the power to choose between right and wrong that he cannot resist the killing though he may know right from wrong.
Mizell v. State, 63 So. 1000, 184 Ala. 16; Parsons v. State, 2 So. 854, 81 Ala. 577; Bucknill on Criminal Lunacy, 59; Hadfield case, 27 How. State Tr. 1282, 2 Lawson Crim. Def. 201-215; U.S. v. Lawrence, 4 Cranch, C.C. 518; Rex v. Oxford, 9 Car. P. 225; State v. Felter, 25 Iowa 68; Kriel v. Com., 5 Bush. 362; Smith v. Com. 1 Duv. 224; Dejarnette v. Com., 75 Va. 867; Coyle v. Com., 100 Pa. 573; Cunningham v. State, 56 Miss. 269; Com v. Rogers, 7 Metc. 500; State v. Johnson, 40 Conn. 136; Anderson v. State, 43 Conn. 514; State v. Mewherter, 46 Iowa 88.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
It is argued that this appellant was under fear of mob violence and that this prompted him to do his talking. There is no evidence to this effect. The argument is based upon a line or two which appear in the record, but it seems to the writer that the real meaning of this testimony would have to be badly distorted to justify even an inference of fear of a mob on the part of the appellant.
There is nothing to show that this generated fear in the breast of appellant, and we would have to close our eyes to reality, as reflected by the record, and give play to the imagination to indulge in even an inference that fear was the midwife to this confession. Not only is there no basis for an argument along this line, but the record shows no objection to the confession offered at this point upon this or any other ground.
The law in Mississippi is that to constitute a defense to crime, the defendant must have been unable to distinguish between right and wrong and incapable of understanding the nature and quality, as well as the consequences of his acts.
Eatman v. State, 169 Miss. 295, 153 So. 381; Smith v. State, 95 Miss. 786, 49 So. 945.
The testimony introduced by the defendant in no wise showed that he was incapable of distinguishing right from wrong. There is not one single syllable of the testimony upon which either the jury, the trial judge or this court can say that appellant was in that condition.
Had the state moved to exclude all this testimony, the court should have sustained it and properly so.
Eatman v. State, 169 Miss. 295, 153 So. 381.
Throughout the introduction of the state's case-in-chief, it had a right to and did rely upon the presumption of sanity, in the absence of a plea of not guilty by reason of insanity.
Cunningham v. State, 56 Miss. 269, 21 Am. Rep. 360; Temple v. State, 165 Miss. 798, 145 So. 749.
The three instructions refused the defendant made issues for the jury (namely, sanity or insanity) which were not made by the evidence and their refusal was proper.
Eatman v. State, 169 Miss. 295, 153 So. 381; Dow v. Town of D'Lo, 152 So. 474.
Appellant complains of the modification of instructions by the court, same being numbers one and three. The record shows no modification, they being simply marked "Given." The record must show the modification. It cannot be shown by brief of counsel, and, by the same token, it cannot be shown as a part of a formal motion for new trial.
Middleton v. State, 97 Miss. 278, 52 So. 258; Williams v. State, 95 Miss. 671, 49 So. 513.
It is charged that no motive was shown. We think there was, namely, the refusal of the landlord to arrange his business so the appellant could sell his cotton under the crop reduction plans, although it is not necessary to prove a motive to sustain the conviction. Or, in other words, motive is not an indispensable element of murder.
Johnson v. State, 140 Miss. 889, 105 So. 742; House v. State, 94 Miss. 107, 48 So. 3; Buckler v. State, 157 So. 353; Motley v. Smith, 159 So. 553.
There is no evidence upon which the jury could have found him not guilty by reason of insanity, and we say, further, that he was entitled to no instructions whatever which would authorize the jury to consider the matter of his mental status. It is true that the court did give such instructions at the request of defendant, but he cannot complain of such fact because one cannot complain of an erroneous instruction which he, himself, procured the court to give.
Long v. State, 163 Miss. 535, 141 So. 591; Dixon v. State, 106 Miss. 697, 64 So. 468.
Argued orally by Mary Sue Brannon and J.W. Conger, for appellant, and by W.D. Conn, Jr., and C.E. Morgan, for the state.
The appellant, Wilson Pullen, was tried and convicted of the murder of Dave McClellan, in the circuit court of Montgomery county, and the jury, by its verdict, found him guilty as charged in the indictment, and he was sentenced to be hanged. He prosecutes an appeal here.
The defendant, or appellant, entered a plea of not guilty to the indictment, but did not plead especially not guilty because of his insanity.
The appellant was a "share-cropper," living on Dave McClellan's place, and their homes were about two hundred yards apart. The appellant had been living there during the year, and the homicide occurred in October. On Sunday afternoon, before the 17th day of October, 1935, the dead body of McClellan was found lying on a pallet in the hall of his home. His brains had been blown out with a shotgun. There was a screened door through which the shot had been fired, and his head was in such a position with respect to the hole in the door as to indicate that the shot was fired into the back of his head at a time when he was asleep on the pallet. On the night before, McClellan had attended a meeting and returned home about midnight. On the day of the homicide, there was an all-day singing at Nation, and Mrs. McClellan, the wife of the deceased, her aunt, Mrs. Haynes, and the grandchild of Mrs. Haynes attended this meeting. Mrs. Pullen, wife of the appellant, and two of her children went on the same bus with Mrs. McClellan, leaving to attend the singing in the forenoon. McClellan was at home alone; and the appellant and his young son were at home. About 2 o'clock in the afternoon the appellant and his young son were seen near the McClellan home. About 5 o'clock in the afternoon Mrs. McClellan and Mrs. Haynes returned on the bus from the singing to the former's home, and, upon entering it, his wife found the lifeless body of her husband, as above described. On the following day the officers of the law arrested the appellant and charged him with the murder of McClellan.
The record discloses that the relations between the McClellans and the Pullens had been friendly, no display of ill will having been shown, and that Pullen had been unable to sell the cotton he had raised, on account of McClellan's refusal to "sign up" with the government's cotton acreage reduction program, and because thereof he was unable to get "ginning certificates" to gin and market his cotton. The evidence abundantly shows that the appellant had evinced great distress and worry, and had brooded over the situation.
After the body of McClellan had been discovered, the officers proceeded to question persons who might know something of the cause of the tragedy. The appellant was questioned, and he stated that he was in his cane patch with his little son, who heard the report of a gun, but that he did not hear it. He denied all knowledge of the homicide. Subsequently, when the officers questioned him, and he made conflicting statements, the boy stated that he was with his father in the cane patch, but admitted to the officers that his father had told him to make that statement. The officers found a shotgun owned by the appellant in his home. It was a 12-gauge single barrel shotgun and was found to have been recently discharged. Some tracks leading towards the appellant's home and away from McClellan's home were discovered near a barrel near the screen door of deceased's home. Later, appellant made a different statement.
Appellant was arrested late in the afternoon of the day after the homicide was committed, and taken to jail at Winona by the sheriff and others, and shortly thereafter he was driven in an automobile to Greenwood and there lodged in jail by a deputy sheriff, J.T. Wilson. Later Smith, the sheriff of Montgomery county, in the presence of the sheriff of Leflore county and one of his deputies, had a conversation with the appellant, and he made a confession of his guilt to them. The testimony of these several witnesses was offered in evidence.
Wilson, the deputy sheriff, testified that as they were proceeding to Greenwood from Winona the appellant would ask if that "was the last hill," and when they finally reached the Delta, this question was repeated, and he then asked why he was being carried to the Greenwood jail. Wilson replied, "Well, we never know in these cases, we don't know the cause of the trouble." The sheriff of Montgomery county, this deputy, and others, after the arrest of the appellant, questioned the accused vigorously during the trip to the Winona jail, and from thence to the Greenwood jail. He admitted to Deputy Wilson that his little boy was right when Wilson told him that the child had admitted that his father was not in the cane patch when the child heard the report of the gun, his reply being, "I will just tell you. . . . The little boy told the truth. . . . I killed him and I am not sorry of it." This conversation occurred just under what is called "Valley Hill" on their drive from Winona to Greenwood.
The appellant made a statement to R.M. Smith, sheriff of Montgomery county, and others, in the jail at Greenwood, Smith's testimony in regard thereto being:
"A. I . . . told him I understood he was ready to tell about the killing; he says `Yes, I have already told it.' . . .
"A. Well, he said that — he described about being at home by himself except for his little boy; said his father stayed with him until noon and they went over to his sister's house for dinner and that they came back after dinner and his father suggested that he was going to church, and that he and his little boy came on home and after he got home he and his little boy walked up to Mr. McClellan's house and he found Mr. McClellan asleep on a pallet in the hall and that he went back home — he and his little boy passed Mr. McClellan's a little piece and went back by the house and on to his own house, and that he sent his little boy to the cane patch and he got his shotgun and went back and shot Mr. McClellan while he was asleep.
"Q. Did he say what position he was in when he shot him? A. Yes, sir, he described it, the same position he was in when I found him; he was lying on a pallet asleep with his head north and his feet to the south. . ..
"Q. Did he tell you what he did after he shot him? A. Yes, sir.
"Q. What was that? A. He said he ran around the house and went through a gap and then through a thicket home; he didn't go the regular path from one house to the other.
"Q. Did he tell you what he did with the gun after he shot him and ran home? A. Yes, sir, said he dropped the gun on the way home, and that after he got home he took the empty shell out of the gun and I asked him what he did with the shell and he said he didn't remember, and he further stated that he loaded the gun again.
"Q. Did he tell you what he killed Mr. Dave McClellan for? A. Yes, sir, I asked him why he killed him and he says `Well, Mr. McClellan never contracted with the Government about his cotton, never signed a contract to reduce the acreage' or something like that, and he couldn't get hold of any certificates to sell his cotton, that he had two bales of cotton he was anxious to sell as he needed to buy some supplies for his home, and Mr. McClellan refused to sign a contract. . . . that Mr. McClellan had said he didn't give a damn whether he sold a lock of cotton. . . .
"Q. Did he make any statement about whether Mr. McClellan was aware of any ill feeling between them? A. . . . He said no but he was mad about it, that he didn't like it at all; I also asked him when he decided to kill Mr. McClellan and he said he decided it after he went up there and saw him asleep."
All the witnesses who testified as to appellant's confessions stated that they were made freely and voluntarily, without any threat or coercion, or without any promise of hope of reward. He was frequently advised by the officers that he need not make any statement at all, and if he made one, it would be used against him, that they would testify regarding it if it became necessary.
Counsel for the defendant offered testimony which, it is urged, tends to establish a reasonable doubt as to appellant's sanity at, and before, the time of the homicide. Summarizing this testimony, it was stated that appellant appeared to be "worried," "bothered," "seemed like his mind wasn't right or something," was nervous, and "acting peculiar;" had been "awful bothered" about cotton certificates, "terribly depressed," "looked so strange," had "a sad, strange look," and was "childish." The wife of the appellant testified that her husband "has just been worry himself to death," "didn't hardly sleep," and that she just could not believe that he was temporarily insane. One of the witnesses testified that on Saturday, before the homicide, the appellant appeared stupid. It was further testified that he did not seem to have as much to say as he had been in the habit of saying, and that he acted "peculiar," and that "he didn't look right;" that he had "always had little peculiar ways all his life," "just a little curious from the general run of people." The witness who testified to the last statement, when asked if the appellant was crazy, replied, "No, sir, I never taken him to be crazy." Another witness stated that he met appellant on Saturday, and he "looked pale-like."
The young son of the accused, offered as his witness, did not reply when asked his age. He is spoken of as a "little boy" throughout the record. He testified that his father was in the cane patch at the time he heard the report of the gun on Sunday afternoon.
The appellant was also permitted to show that his father could neither read nor write, and that he was weak mentally. He was further permitted to show that his mother had been weak in mind, or mentally deficient for many years; that she was subject to spells or "fits." She was lying on the floor of the witness room during the trial of the case, and witnesses were asked about her condition from time to time as they came in from the witness room by appellant's counsel. The accused did not testify.
All the evidence in this case shows that the confessions made by the accused, or appellant, were free and voluntary. There is no contradiction in the record. No sort of examination as to the physical condition of the appellant was offered, nor did any witness intimate that there was any coercion, fear, or undue pressure imposed upon the accused by which a confession was extorted. It is argued by counsel for the appellant that the continued examination before, and on, the trips to Winona and Greenwood amounted to such a gruelling as to have forced an involuntary confession from him. He argues that the answer of Deputy Wilson to appellant's question as to why he was being taken to Greenwood, to the effect, "Well, we never know in these cases, we don't know the cause of the trouble," indicated a threat of mobbing, which aroused fear in the appellant. There is no merit in either of these contentions. See Ouida Keeton v. State (Miss.), 167 So. 68.
There is nothing to indicate that this confession did not emanate from the free will of the accused, and without the inducement of hope or fear. The precedent questioning of the accused in the case at bar is not comparable as to its severity to that which is depicted by the record in the Keeton Case, supra.
Appellant further complains of the modification of certain instructions by the court. The record here shows no such modification; the brief of counsel only advises of it. The record must show the modification. See Middleton v. State, 97 Miss. 278, 52 So. 258. Appellant should have had the record to show that he declined to use the instructions as modified if that had been the fact. As the record here discloses, this court must assume that these instructions were read to the jury. Appellant does not say that they were not so read. Williams v. State, 95 Miss. 671, 49 So. 513.
It is next insisted that no motive was shown. It may be conceded that no sufficient motive was shown to justify a man in concluding that he had the right to kill his fellow man; but appellant stated that he killed McClellan because he refused to get the gin certificates so that he could sell his cotton, and said he was mad. Motive is not an indispensable element of murder. See Johnson v. State, 140 Miss. 889, 105 So. 742; Buckler v. State, 171 Miss. 353, 157 So. 353; Motley v. Smith, 172 Miss. 148, 159 So. 553.
It is next insisted that the court erred in granting an instruction for the state as follows: "The Court instructs the jury for the State that insanity can not be a defense to a criminal charge, if the defendant knew the difference between right and wrong at the time of the alleged crime in question."
It is urged that the instruction is incomplete, should have concluded with the statement that, at the time he committed the act, the accused had the ability to realize and appreciate the nature and quality thereof. We think the instruction, as given, is in all material particulars the same as that which was fully considered by this court in the case of Smith v. State, 95 Miss. 786, 49 So. 945, 27 L.R.A. (N.S.) 461, Ann. Cas. 1912A, 23, wherein the court said: "Where the defense is insanity, total or partial, the test of the defendant's criminal responsibility is his ability, at the time he committed the act, to realize and appreciate the nature and quality thereof — his ability to distinguish right and wrong. Grissom v. State, 62 Miss. [167] 169." In the Smith Case, supra, the court added to an instruction on insanity for the defendant these words: "that he was unable to distinguish moral right from wrong." Since the decision in the Smith Case, this court has been committed to the doctrine that the test or not of sanity is whether the accused is able to distinguish between right and wrong. The last case so stating was Eatman v. State, 169 Miss. 295, 153 So. 381.
We think that there was no error in the giving of the instruction or in modifying the given instruction for the defendant in this particular under these authorities. We further say that error could not be predicated upon the instructions in this case on the question of sanity or not, for the reason that all the evidence offered by the defendant for that purpose did not tend to raise the question of insanity to the extent that such evidence created a reasonable doubt of defendant's sanity at the time of the homicide. In other words, the appellant was presumed to be sane, and in this case the state was not required to go further with its proof.
In the Eatman Case, supra, this court said: "Peculiarities of conduct on occasions do not amount to proof of insanity, else, in the judgment of many men, most of the people, other than themselves, would be insane." And, as stated in that case, a peremptory instruction would have been proper on the so-called issue of insanity presented in the case at bar. Such evidence did not tend to establish a reasonable doubt of the sanity of the accused. It merely showed brooding on account of a wrong which the appellant conceived had been perpetrated upon him by the deceased. The court, however, was liberal and submitted the issue to the jury. There was no evidence of hallucinations or delusions exhibited by the appellant.
We find no reversible error in this record, and the cause will be affirmed and the date of the execution of the appellant, by the infliction of the death penalty, fixed as Friday, June 19, 1936.
Affirmed.