In Warren v. State, 174 Miss. 63, 164 So. 234 (1935), appellant was convicted of murder and the conviction was reversed.Summary of this case from Butler v. State
November 18, 1935.
1. CRIMINAL LAW.
Admission of confession in murder prosecution which was made to sheriff and which was not free and voluntary held error.
2. CONSTITUTIONAL LAW.
Refusal to permit defendant to testify that confession was not free and voluntary at close of state's evidence upon preliminary inquiry as to admissibility of confession made to sheriff held error as denying defendant's constitutional right to be heard (Const. 1890, section 26).
3. CONSTITUTIONAL LAW.
Constitutional "right of accused to be heard," which means right to be heard at proper time, cannot be postponed to a time when it is in whole or in part ineffective, or when to avail of it entails acceptance of conditions which may not lawfully be imposed upon accused (Const. 1890, section 26).
4. CRIMINAL LAW.
Admission of hearsay evidence of sheriff in respect to certain incriminating articles found on accused's premises by others pursuant to accused's involuntary confession to sheriff directing toward such incriminating articles held error.
5. CRIMINAL LAW.
While involuntary confession cannot be received in its entirety, such particular parts of it as definitely direct to place where property or other evidence can be found is admissible if property or evidence is accordingly afterwards found in pursuance of confession, although parties who actually found evidence must be introduced and not party who knows of finding of such evidence only by hearsay.
6. CRIMINAL LAW.
Admission of testimony of constable as to incriminating articles found by constable on defendant's premises without search warrant under reserved rulings held error, requiring reversal, notwithstanding that testimony was subsequently excluded and jury instructed not to consider it.
In trial before chancellor or before circuit judge without jury, rulings on objections to admission of evidence can be reserved.
8. CRIMINAL LAW.
In jury trial, judge should rule positively one way or the other when evidence is offered and objection thereto is made.
9. CRIMINAL LAW.
Admission under reserved rulings of harmfully objectionable testimony which materially influences jury is reversible error, notwithstanding that jury is later instructed to disregard such evidence.
In murder prosecution in which defendant was sentenced to death, errors in admission of evidence warranted reversal, notwithstanding that evidence properly admitted was sufficient to sustain conviction, where verdict might have been for life imprisonment if only evidence properly admitted had been placed before unbiased jury.
Appeal from the circuit court of Simpson county; HON. EDGAR M. LANE, Judge.
Martin Berry, of Prentiss, for appellant.
The so-called confession and the refusal of the court to allow the defendant to take the stand in rebuttal of the testimony on the confession, violates section 26 of the Constitution.
If we understand the law, the rule is that upon a preliminary inquiry in the absence of the jury, the judge tests the admissibility of the proffered confession, as to whether it was made freely and voluntarily and without hope or promise of reward. The judge tests the competency of the confession as evidence, but before he can really rule on it, it seems that he must hear both sides of it.
Confessions of crime are inadmissible in evidence if they were induced by promises to intercede with the judge for a light sentence and assurances to prisoner that it would be better for him to confess.
Johnson v. State, 89 Miss. 773, 42 So. 606; White v. State, 129 Miss. 182, 91 So. 903; Simmons v. State, 37 Miss. 288; Hathorn v. State, 138 Miss. 11, 102 So. 771; Fletcher v. State, 131 So. 251; Stepney v. City of Columbia, 127 So. 687, 157 Miss. 193.
Where the confession is offered the burden is on the state to show that it was voluntary before it can be received, if objection is made.
Coffee v. State, 25 Fla. 501, 6 So. 493; Clayton v. State, 31 Tex.Crim. Rep., 21 S.W. 255; Hite v. Com., 96 Va. 489, 31 S.E. 895; State v. Auguste, 50 La. Ann. 488, 23 So. 612; Amos v. State, 183 Ala. 1, 3 So. 749; Harvey v. State, 20 So. 837; McMasters v. State, 82 Miss. 459; 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; White v. State, 78 Miss. 255, 28 So. 852, 53 L.R.A. 402; Ammons v. State, 80 Miss. 593, 32 So. 9; Ellis v. State, 65 Miss. 44, 30 So. 188, 7 Am. St. Rep. 634; Brooks v. State, 93 Miss. 700, 47 So. 437; Durham v. State, 47 So. 545; Jones v. State, 133 Miss. 684, 98 So. 150; White v. State, 91 So. 903; Fisher v. State, 110 So. 361; Matthews v. State, 59 So. 842.
We maintain that it is not simply a question here on review of whether or not the confession was admissible, as much as that enters into the issues here, but the further and more vital question and the one underlying the question on the confession as to its being a confession is whether or not the trial judge applied the proper and legal test to determine its admissibility. In other words, can the state offer the confession of a defendant on a preliminary inquiry and test its competency alone and only by the uncontradicted evidence of the sheriff and only witness offering the confession, in the face of the denial of the right of the defendant to rebut it?
The defendant may always waive his right to take the stand, but we know of no law that shuts his mouth on a preliminary when he desires to speak, provided he makes known to the court his desire to so speak.
Admissibility of confession is for the trial judge.
Brown v. State, 142 Miss. 335, 107 So. 373; Perkins v. State, 160 Miss. 720, 135 So. 357; Lee v. State, 137 Miss. 329, 102 So. 296; Weatherford v. State, 164 Miss. 888, 143 So. 853, 894; Simmons v. State, 61 Miss. 243; Tyler v. State, 159 Miss. 223, 131 So. 417.
We doubt if the corpus delicti in this case was proved independent of the confessions, so-called.
14a C.J. 1425; Pitts case, 43 Miss. 472; Heard v. State, 59 Miss. 545; Pope v. State, 158 Miss. 794, 131 So. 264; Sam v. State, 33 Miss. 347; Sykes v. State, 157 Miss. 600, 128 So. 753; Butler v. State, 129 Miss. 778, 93 So. 3; Walker v. State, 140 Miss. 238, 105 So. 497.
The constitutional guaranty of an impartial trial is enforced with strictness in this state as is disclosed by an examination of the many cases hereinbefore cited and this without regard to the facts of the case on its merits.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
When the confession was offered, the defendant requested a preliminary inquiry. The court allowed it. After the state made its showing, defendant was denied the right to put on proof to show that the confession was involuntary. This action of the trial court seems out of line with previous decisions of this court, particularly, Perkins v. State, 160 Miss. 720, 135 So. 357; Weatherford v. State, 164 Miss. 888, 143 So. 853; Lee v. State, 137 Miss. 329, 102 So. 296; Ellis v. State, 65 Miss. 44, 3 So. 188; Fisher v. State, 145 Miss. 116, 110 So. 361.
These cases hold that it is the duty of the defendants to put on proof of involuntariness at these preliminary inquiries.
In view of the fact that Mims Mitchell promised to do what he could for defendant; that he would talk to the judge and would even see the governor in the event he was convicted, if he would confess his participation in this homicide, the state submits that there is grave doubt as to its competency in view of Johnson v. State, 89 Miss. 773, 42 So. 606; Mitchell v. State, 20 So. 837; Harvey v. State, 24 So. 312; State v. Smith, 72 Miss. 420, 18 So. 482; Mackmasters v. State, 82 Miss. 459, 34 So. 156.
Argued orally by G.L. Martin and Ovie L. Berry, for appellant, and by W.D. Conn, Jr., for the state.
Appellant was indicted and convicted of murder, and was sentenced to death. Many errors are assigned, but we shall consider four only, each of which assignments is well taken.
1. The testimony on the part of the state discloses that the confession made to the sheriff, and admitted in evidence, was not free and voluntary as those terms are understood in the law. The facts bring the case squarely within Harvey v. State (Miss.), 20 So. 837, and Johnson v. State, 89 Miss. 773, 42 So. 606.
2. When the state had closed its evidence upon the preliminary inquiry, in the absence of the jury, as to whether the confession made to the sheriff was admissible, the appellant not only objected to it, but in addition offered himself as a witness to show that the confession was not free and voluntary. But the court refused to hear him at that time on that issue. This was plain error, 16 C.J., p. 734, sec. 1511 (2), 2 Bishop Crim. Procedure, sec. 1220, and was the denial of a right of the accused guaranteed to him by section 26 of the Constitution of 1890. The constitutional right to be heard means the right to be heard at the proper time, and is not satisfied by so postponing the right as to make it in whole or in part ineffective, or to a time when to avail of it entails the acceptance of conditions which may not lawfully be imposed upon the accused.
3. Testimony of a damaging character was admitted by the evidence of the sheriff in respect to certain incriminating articles found on the premises of the accused. These articles, as best we can make out from this record, were found by other persons than the sheriff. For instance, the burned pocketknife and the burned metallic rims of two pocketbooks were said by the sheriff to have been found in the fireplace in the residence of the accused, but these were found by Mr. J. Mangrum, so it was said, and yet Mr. Mangrum was not put on the stand as a witness. When the testimony of the sheriff is closely analyzed, it is apparent that much of it of an exceedingly harmful nature, and in the respect above mentioned, was but hearsay, and was not of the actual knowledge of the sheriff himself. Although a confession not voluntary may not be received in its entirety, nevertheless such particular parts of it as definitely direct to the place or places where property or other evidence may be found is admissible, when and if in pursuance thereof the property or evidence is accordingly afterwards found. Garrard v. State, 50 Miss. 147. But under this rule the parties who actually found the evidence must be introduced, not a witness or witnesses who know of it only by hearsay from such others.
4. Testimony of a damaging character was admitted by the evidence of the constable in respect to certain incriminating articles found by the constable on the premises of the accused. When this evidence was offered, and step by step as it was offered, the defendant objected because the constable was not shown to have had a search warrant authorizing the search, but instead of sustaining said objections, no search warrant having been sufficiently shown, the court reserved rulings on the objections, and when all the objectionable testimony had got thoroughly before the jury, the court afterwards, and towards the close of the trial, excluded the evidence and directed the jury not to consider it.
In trials before the chancellor, or before the circuit judge, without a jury, the practice of reserving rulings on objections to evidence is permissible because the judge, trained in such matters and skilled in legal discrimination, is able upon final decision to put out of his mind that part of the testimony which he has heard, but which upon a mature examination of the legal questions in respect thereto is found to be inadmissible as evidence; but an untrained jury cannot so well do this. Therefore, the proper practice in jury trials is that the judge shall rule positively one way or the other when the evidence is offered and the objection thereto is made. 64 C.J., p. 220, sec. 232 (2). This, however, is not to be laid down as an inflexible rule, there being several appropriate circumstances for its reasonable relaxation. But when it is not adhered to, and harmfully objectionable testimony is allowed to get to the jury under reserved rulings, and in such a manner and to such an extent that we cannot safely say the jury has not been materially influenced thereby, we must reverse, even though the court at some later stage of the trial may have instructed the jury to disregard the illegal evidence. Compare Lamar v. State, 64 Miss. 687, 2 So. 12; Green v. State, 97 Miss. 834, 53 So. 415.
The attorney-general has confessed error in two of the particulars above mentioned, but has submitted that the legal evidence, and that part of the record free of error, is amply sufficient to sustain the verdict and judgment, as was done in Comings v. State, 163 Miss. 442, 142 So. 19, and Wexler v. State, 167 Miss. 464, 142 So. 501. The Chief Justice and the writer have inclined to this view, but the majority are of the opinion that the death penalty should not be affirmed upon a record so marked with error, when we take into consideration that if the legal evidence only had been placed before an unbiased and impartial jury, in a calm and deliberate atmosphere, the verdict might have been for a life imprisonment, conceding for the sake of the argument that no less sentence could or would have resulted.
Reversed and remanded.