Nicholson v. State

Bartol, C. J.,

delivered the opinion of the Court.

It appears by the record that the appellant was indicted for murder, jointly with Thomas Hollihan, and a verdict of lCguilty of murder in the first degree” was rendered against each of the prisoners.

In the course of the trial, an exception was taken by the counsel for the appellant, to the ruling of the Circuit. Court, which is now before us for review on this appeal. The questious presented for our consideration, arise upon *152 the admission in evidence of confessions made by the appellant, after he was arrested, to William Crone, a detective. The bill of exception shows, that before the witness Crone was allowed to detail the confession made to him by the prisoner, he was at the instance of the prisoner’s counsel, examined as to the circumstances under which the confession was made; for the purpose of ascertaining whether any promise or. threat or inducement to confess, had been made to the prisoner, which would render the confession inadmissible ; and proved that the confession had been made voluntarily, and without being induced by any promise or threat whatsoever.

Thereupon, at the instance of the prisoner’s counsel, leave was given by the Court for further testimony on this subject to be offered, both on the part of the accused and of the State; and Thomas Nicholson was called on the part of the prisoner, and testified, that he was present at the interview between the prisoner and Crone, at which the confession was made, and stated, that Crone sat down by the prisoner and said to him, “for Christ’s sake, if you know anything about -this case, let it out before Hollihan squeals, for if you do not, Hollihan will squeal before you, and you will get the worse of it,” and that this was said by Crone before any statement or confession was made by the prisoner.

John English, who was present at the same interview, testified that “ neither before the confession was made by the prisoner, nor at any other time during the interview, did Crone say to the prisoner the words testified to by Thomas Nicholson, or anything whatever to the like import.”

Crone was then recalled and contradicted the witness Thomas Nicholson, and swore that “he did not before the statement was made by the prisoner, or at any other time, make use of or say to him, the words or expressions testified to by the witness Thomas Nicholson.”

*153 Both Crone and English testified substantially to the same facts. They both stated that just alter they entered the room at the station house, where the prisoner was confined, Thomas Hicholson, the witness being with them, the prisoner spoke first to Grone and said, “1 want to tell you all about this case.” Crone then said to him, “Josh let it be the truth, and let it be of your free will and consent” — or according to English’s recollection, Crone’s answer was, “ then I want you to tell me the truth about this thing, and make a clean breast of it,” and the prisoner then went on to make his statement. Upon a most careful consideration of the whole testimony on this point, after an examination of the authorities cited in the argument; we are all of opinion that the statement and confession of the prisoner was admissible, and competent evidence to be submitted to the jury.

Without undertaking to lay down any general rule on this subject, or attempting to define the nature and character of the inducements held out to a prisoner, which would render his confession inadmissible ; for this must necessarily depend very much upon the particular circumstances of each case; it is very clear upon all the authorities, that if the confession of the appellant had been induced by any threat of harm, or promise of worldly advantage held out to him by Crone, or by his authority, or in his presence and with his sanction, it ought to be excluded.

The law is also well settled that the onus is upon the prosecutor, to show affirmatively, that the confession proposed to be offered was not made in consequence of an improper inducement. 1 Taylor, sec. 796. In the language of Baron Parke in Queen vs. Warringham, the Court must be satisfied that the confession sought to be used in evidence against the prisoner, “ was not obtained from him by improper means.” 2 Den. C. C., 448, note.

*154 According to the testimony of Crone and English, there was neither promise nor threat employed in this case; the statement of the prisoner was made by him voluntarily. Thomas Nicholson testifies to the contrary; but it is'impossible to give credence to his statement, he is not only positively contradicted by both of the other witnesses; but his whole testimony is improbable in the extreme. Not only does he put in the mouth of Crone, words which Crone himself positively states were not used by him, and which English, a disinterested witness who was present and heard all that occurred, positively contradicts; hut his other statements as to what he alleges Crone had previously said to him, while on their way to the station house, are not supported by any other testimony, and are positively disproved by both Crone and English. And when it is remembered that this witness is a brother of the prisoner, naturally moved by the strongest bias in his favor, and testifying under the influence of that bias; we cannot escape the conviction that the true account of what occurred at the interview with the prisoner, and of the circumstances under which he made the confession, is to he found in the testimony of Crone and English. There was no error therefore in allowing the confession, to be given in evidence to the jury.

We have thought it our duty in a case of such serious and vital importance, to express our judgment on this question, without stopping to inquire whether it is technically presented by the exception as it is set out in the record.

Without regard to the form of the exception, it is evident that the material and important question in the case, is whether the confession of the prisoner, made under the circumstances shown by the proof, was properly allowed to go to the jury. The determination of this question in the affirmative, is conclusive of the case.

*155 It appears that the Circuit Court, after the preliminary testimony was heard, showing the circumstances under which the confession was made, permitted it to go to the jury, instructing them substantially, that it was admissible and competent evidence, and proper for them to consider, if they believed the facts testified to by Crone and English, or either of them. But if they believed the testimony of Thomas Nicholson to be true, “ then it was admissible, and they must not regard it as evidence affecting the prisoner.”

The point has been made in this Court, and argued by the appellant’s counsel, that the preliminary question of the admissibility of the confession was for the Court to determine, and that it ought not to have been left to the jury to decide upon the credibility of the witnesses, bearing on that question.

This point is not material or important in this case; the Court below virtually passed upon the question, by allowing the confession to go to the jury ; and as we are all of opinion that the confession was admissible and proper evidence, the ruling of the Circuit Court on that question must be affirmed. The only effect of the instruction given to the jury, was to afford the prisoner’s counsel an opportunity of arguing before them", that the testimony of Thomas Nicholson was entitled to their belief, and consequently that the confession of the prisoner ought to bo discarded 1'rom their consideration. The appellant was not therefore injured by the course pursued by the Court in this respect, and cannot be entitled to a reversal for that cause.

The question is however, an interesting and important one in practice; and although its decision cannot for the reasons stated, affect the decision of the present case, we consider it proper to express our judgment upon it.

The general proposition stated by the appellant’s counsel, is undoubtedly correct. The question of the admissibility of testimony, is always fo'r the Court; and *156 the rule, is where the confession of a prisoner on trial is offered against him, the Court, and not the jury, are to determine whether it is admissible. The rule is thus stated in Taylor on Evidence, sec. 22, “If,” says the author, “the question be whether a confession should be excluded on account .of some previous threat or promise, the judge must decide first, whether the threat or promise was really made; and secondly, whether if made, it was sufficient in law to warrant the exclusion of the evidence.” We refer also to section 796. This rule is conformable to reason, and is supported by the authorities. It was departed from in King vs. Woodcock, decided in 1789, Leach’s C. C., 500, where an analogous question arose. Eyre, C. B., being in doubt upon the preliminary testimony, whether a statement of a party offered in evidence as a dying declaration, had been made,-when the declarant was under the apprehension of death, left that question to the jury, instructing them, that if they so believed, the declarations were admissible; but if .they believed the contrary, they were not admissible. This decision was expressly overruled in Thomas Johns’ case-,,decided in 1790, in which all 'the judges were of opinion, “that it ought not to be left to the jury to decide whether the deceased thought she was dying or not; for that must be decided by the judge before he receives the evidence.” This last decision was followed in the case of Henry Welhorn, decided 1792, 1 East. C. L., 359, 360. These cases are reported in Leach’s C. C., 503, 504, (notes.) . We refer also to King vs. Hucks, 1 Starkie’s R , 521, (2 Eng. C. L. R., 495) and note, and also to the case cited by Parke, B., in his opinion in Bartlett vs. Smith, 11 Mees. & W., 485. As very well said in Starkie’s note to King vs. Hucks, (2 Eng. C. L., 495,) “it is clearly inconsistent with principle, to leave such evidence to the jury, to be acted upon, or rejected, according to their decision upon that which is clearly matter of law:” and we may add that very great injustice might in some cases, be done to

*157 (Decided 6th June, 1873.)

the prisoner, by allowing a confession made by him, to be given in evidence, before the Court is satisfied that it was voluntarily made; for as suggested in the appellant’s brief, it would be difficult for the jury in deciding the question of admissibility, not to be influenced by the confession itself, which they ought not to hear, unless its admissibility is first clearly established to the satisfaction of the Court. Of course, the credibility of the witness who testifies to the confession, is a question for the jury to decide, in the same manner as they pass upon the credibility of other witnesses in the cause.

In civil cases, the rule of practice is different, as evidenced by the cases of Trasher vs. Everhart, 3 G. & J., 234 ; Dement vs. Stonestreet, 1 Md., 123 ; Funk vs. Kincaid, 5 Md., 404 .

In those cases it was held, that where the preliminary question upon which the admissibility of evidence depends is one of fact only, it may be left to the jury to be decided by them, under hypothetical instructions from the Court. That course may properly be pursued, where the evidence upon which the preliminary question depends, is doubtful, in such case, the Court may decline to decide it, and submit it to the jury. That rule cannot apply to a’ criminal case, for in passing upon the preliminary question of the admissibility of a confession made by a prisoner., if the Court considers it doubtful whether it ought to be admitted, it should be rejected. The law is so stated by Taylor, vol. 1, sec. 796, on the authority of Queen vs. Warringham, 2 Den. C. C., 447.

In this case however, as we have before said, the confession of the appellant offered in evidence, was clearly admissible according to the proof; and there is no ground therefore, upon which the ruling of the Circuit Court ought to be reversed.

Ruling affirmed, and cause remanded.