Johnson v. State

Smith, C. J.,

delivered a dissenting opinion.

Some time in July, 1913, Mr. George Dillon discovered "the body of a dead man floating in the canal at Vicksburg. When drawn to the shore it was found that the skull of the dead man had been crushed, and that the body had then been incased in a sack and wrapped in a quilt, to which rocks and stones had been attached with sash or tiller cord. This body was afterwards identified as that of Elston Brewer, a young man twenty-six years of age, who, together with appellant, had gone to Vicksburg from some point in Arkansas, probably Cave City.

Brewer was the owner of two small boats, one of them being a house-boat in which he and appellant lived. He was a printer by trade, and, according to the testimony of his father, was at the time going down the river on a pleasure trip. According to the confession of appellant, he and Brewer had started for New Orleans, Brewer promising to give appellant a job, the nature of which does not appear. Before the finding of this body, appellant had mentioned the disappearance of his partner, Brewer, and when he saw the body, which seems to have been drawn ashore near the boats in which he and Brewer lived his actions were such as to arouse the suspicions of those who saw him.

A day or two before the finding of this body, appellant went to the Merchants’ National Bank of Vicksburg, *211 told one of the officers thereof that his name was Brewer, •and asked him how he conld obtain some money, and was told “to have some bank to wire us to pay him the money and waive identification. ’ ’ This bank afterwards, on July 16th, received a telegram from a bank at Bates-ville, Arkansas, directing it to pay Brewer the sum of fifty dollars, and to waive his identification.

On the day before the receipt by the bank of this telegram — that is, on the 15th of July — appellant went to the office of the Western Union Telegraph Company and delivered to the operator in charge the following telegram, which was accepted and sent by the company:

“To G-. W. Brewer, Phone Cave City, Ark., Batesville, Ark. Want larger boat. Coming back. Wire fifty dollars at once to Merchants’ National Bank without identification. Letter follows. Elston. (Subject to delay.) ”

G-. W. Brewer was the father of Elston Brewer, and when the telegram was delivered to the operator by appellant he told her that G. W. Brewer was his father. Appellant was identified by the officer of the bank with whom he dealt, and by the telegraph operator, as being the man who made the inquiry at the bank, and as the man who sent the telegram above referred to. This telegram addressed to Mr. G. W. Brewer was received by him, and the telegram from the bank at Batesville to the bank at Vicksburg was sent at his request.

After being arrested and placed in jail, appellant confessed to several parties on different occasions that he had killed Brewer, his confession being, in the language ■of the witness Fitzgerald, as follows:

“ ‘The boy promised me when we left Arkansas that .he would go to New Orleans, and after he got here he made up his mind to make his way back home.’ And I ■think he said he was going to sell the boats and go back and send him adrift, or make his way back to Memphis and go home, and said: ‘We quarreled a good deal about it Sunday and Sunday evening; we read a while, and I *212 cooked supper, and we played cards again, and we quarreled again, and we used the quarrel; I knew Elston pretty well, and I didn’t think he was treating me right, and the boy went to bed about ten o’clock, and about one or two o’clock — some time after twelve, I don’t remember the exact time — I got up and he was asleep, and I went and got the ax and hit him one lick in the head, and he groaned and made a loud noise, and I was afraid the passersby would hear him, and I went back and hit him until he was perfectly still.’ And then he said: ‘I got out; the boat was by the Y. & M. V. depot, and I came up and sat on the curb for a while, and went up on Washington street, and first thought I would give myself up,, and studied about that for a while, and went back, on the boat and got a sack and put some stones in it, and tied the sack around Elston’s body and turned the boat around and shoved him overboard, and he sank.’ ”

A few days before he was killed, Brewer had attempted to sell his boats; one of the parties to whom he attempted to sell being Mr. Dillon, the gentleman who afterwards discovered his body floating in the canal. That Brewer was murdered seems not to be open even to the suggesr tion of a doubt, the only fact to be determined being the identity of the murderer.

The only ground upon which a reversal of the judgment of the court below is asked in which there can be any sort of merit is the one upon which my Brethren think the judgment should be reversed, and that is that the' court erred in admitting the testimony of Mr. E. A. Fitzgerald, to whom one of the confessions introduced in testimony was made. The ground upon which the reversal is placed is that this confession was not “in every respect freely and voluntarily made,” and because “it does-not appear that the confession was from the ‘spontaneous operation’ of appellant’s own mind.”

Confessions are nothing more than a particular class-of admissions against interest, are always competent. *213 when it appears that they were not obtained under such circumstances as destroy their trustworthiness, and the rule is, stated negatively, that a confession is not admissible iñ evidence when it appears that the defendant was coerced into making it by violence or threats of temporal injury, or was induced to make it by a promise of some material temporal benefit; the theory upon which a confession so obtained is excluded being that it is untrustworthy, for the reason that it may have been made without regard to its truthfulness, in order that the person making it might be relieved of pain or threatened injury, or in order that he may obtain the benefit of the promise made. If the alleged coercion or promise is not of such character as will probably bring about this result, the confession is admissible; all doubts as to its admissibility, when such arise, being resolved against it. This is all that is meant by the rule that confessions must be free and voluntary, as will be readily seen by an examination of the facts in the cases in which the rule has been so announced. 1 Wigmore on Evidence,' sec. 821, el seq.

As stated by this author in section 822:

“The ground of distrust of confessions made in certain situations is, in a rough and indefinite way, experience. There has been no careful collection of statistics of untrue confessions, nor has any great number of instances been even loosely reported; but enough have been verified to fortify the conclusion, based on ordinary observation of human conduct, that under certain stresses a person may falsely acknowledge guilt.. This possibility .arises wherever the innocent person is placed in such a situation that the untrue acknowledgment of guilt is at the time the more promising of two alternatives between which he is obliged to choose; that is, he chooses any risk that may be in falsely acknowledging guilt, in preference to some worse alternative associated with silence. What are the circumstances which may make such an acknowledgment preferable? They are usually described *214 as involving either a promise or a threat. Thus a promise of certain pardon, when attached to a confession, may conceivably make a confession, irrespective of its truth, seem more desirable than silence with its contingencies or a threat of instant hanging by a mob, unless a confession is forthcoming, may conceivably make the contingencies of a confession more desirable than the certain consequences of silence. It is this way that a confession of guilt may become untrustworthy as testimony. ’ ’

Bearing in mind this rule, let us now examine the evidence relative to the making of this confession. When Mr. Fitzgerald was introduced as a witness, “at the request of counsel for defendant, the jury was ordered to retire from the courtroom,” and he was then examined with reference to the circumstances surrounding the making of the confession. From this examination it appeared that he had three separate and distinct conversations with appellant: First, ‘£ about twelve or one o ’clock, after the coroner’s verdict was rendered;” second, “that evening-about seven o’clock;” and, third, the next morning at ten. o’clock, the confession being made at the last interview. Fitzgerald admitted that he was trying to find out who-had killed deceased, both for the reason that he thought it his duty as a citizen to do so, and for the further reason that he wanted the information for- the newspaper with which he was connected. He was asked if during either interview he held “out any hope of reward or offer of help or aid of any kind or character at any time . . . or any threat or fear of punishment to him if he did not make a statement,” and he stated that he did not. On the first visit he only talked with appellant about fifteen minutes, and what he said to him can be best stated in his own language:

“I told him I thought he was guilty and there would be no peace on earth for him this side of the grave, and the best thing he could do was to confess and try to save his soul; salvation was what I talked to him about more than anything else.” (Record, p. 71.)

*215 At his next interview with appellant, which occurred at seven o’clock in the evening, and which lasted about, five or ten minutes (Record, p. 71) he said to appellant i “ ‘You better confess; that boy we dug up there, these printers say, to the best of their knowledge, it is Elston Brewer, and there is no doubt about your guilt, and you have not slept a wink since you killed that boy, and you won’t have any peace until you confess.’ And I asked him what church he belonged to, and he had better look beyond the grave for comfort, that his only hope was salvation, and asked him what church he belonged to; and he said he didn’t have much training at all, and went to the Baptist and Methodist Church; and I told him we had some mighty good ministers in town, and if he wanted one I would get one; and he said, ‘No,’ he didn’t want one then, but he would see about it later;. and he said, ‘What are you, anyhow?’ and I said, ‘I am a Spiritualist, and I can look down in your black heart, and see this diabolical crime you committed at midnight the other night.’ I was hitting in high places when I said that, of course.” (Record, p. 75.)

At the third interview, which occurred at about ten-o’clock the next morning, all that Fitzgerald said to appellant in this connection was.:

“ ‘Well, you had another restless night; I see yon never slept a wink last night. Are you ready to confess-this morning?” And he said: ‘Yes, boys; I am ready to tell you all about it.’ ” (Record, p. 76.)

Appellant then proceeded to make confession.

On this visit Fitzgerald was accompanied by Mr. Fox,, manager of the Western Union Telegraph Company, who-was also introduced as a witness to the confession. He was asked the following question:

‘ ‘ Tell the jury whether or not you or Mr. Fitzgerald,, either one, at that time held out any hope of reward or aid, or threatened him, to make any statement or confession to you or Mr. Fitzgerald.” (Record, p. 94.)

*216 To which he replied:

“None whatever; I don’t think there were two words before he made the remark and said: ‘Well, boys, I am ready to confess this morning.’ ” (Record, p. 94.)

The statement made by appellant to Fitzgerald as to his fear of being lynched was made at the' second interview, was not caused by anything said to him by Fitzgerald, and there is nothing in the evidence to indicate that the confession was made on account of any fear of being lynched. (Record, pp. 71 to 77.) All that appellant said with reference to any fear of being lynched was that he didn’t want to attend a preliminary hearing, for the reason that he was afraid he would be lynched, and Fitzgerald told him he could waive examination, and would not be out of jail more than twenty minutes.

When the court was called upon to rule on the competency of Fitzgerald’s testimony, no testimony except that of his own had been introduced, or sought to' be introduced, with reference to the circumstances surrounding the making of this confession. From that it did not appear whether, at the time of making the confession, appellant was sick or well. After the confession had been admitted, and on cross-examination by counsel for appellant, Fitzgerald stated that, while he did not know it of his own knowledge, he thought appellant was under treatment of a physician and was taking medicine at the time; that appellant spoke of having contracted malaria on the river; but that his condition appeared to him (Fitzgerald) to be normal.

It will be observed from this statement that appellant was not threatened with any temporal harm in event he declined to confess, or promised any temporal benefit in event he should do so. What was said to him, in effect, was simply this: That Fitzgerald, by reason of being a Spiritualist, knew that he had committed the crime, and that, by reason of his having committed it, he would have neither peace here nor salvation hereafter, unless he con- *217 fessecl it; that “the best thing- he conld do was to confess and try to save his soul.”

From this it will be seen that the punishment with which appellant was threatened if he did not confess and the benefit which he was told he would obtain by confessing- were both predicated upon a belief in a life beyond the grave and upon a future state of punishments and rewards. In numerous decisions it has been held that exhortations invoking the terrors of punishment predicated upon theological beliefs, and the holding Out of hopes of a spiritual nature do not make the confession thereby obtained incompetent, as will appear from an examination of the authorities cited by Wig-more to section 840 of volume 1 of his Treatise on Evidence, and collated in a note to State v. Williams, Ann. Cas. 1913B, 310.

No case holding the contrary has come under my observation, and, according to Mr. Wigmore, no such case can be found. “It is obvious that, in their ordinary aspect, the influence of religious considerations makes entirely for truth in a confession, and not against it. Mr. Joy’s exposition of this point can never be improved upon:

“1842, Mr. Joy, Confessions, 51: ‘It seems difficult to imagine that a man under spiritual convictions and the influence of religious impression would therefore confess himself guilty of a crime of which he was not guilty; or that a man under a strong- sense of his spiritual relations with God could hope to please God by a falsehood; that a “confidence created” between him and his pastor, or the “being thrown off his guard” by this confidence, should induce him not to confess (that it might naturally do if he were guilty), but induce him to confess falsely. Such spiritual convictions, or spiritual exhortations,seem, from the nature of religion, the most likely of all motives to produce truth. They are therefore of a class entirely different from those that exclude confessions. A confession is excluded because the motive which in *218 duces it is calculated to produce untruth, because it is likely to lead to falsehood. If temporal hopes exist, they may lead to falsehood. Spiritual hopes can lead to nothing but truth.’ ” 1 Wigmore on Evidence, sec. 840..

This point was expressly decided by our old high court of errors and appeals in Frank v. State, 39 Miss. 711 , wherein the court said:

“Anything reasonably tending to hold out the hope or promise of reward or benefit for confession, or of punishment or injury for the failure to confess, is in law an unwarrantable inducement to confess, which renders the confession so obtained incompetent evidence. But there may be other ‘inducements’ held out to a party which are not within this rule. An appeal to the character or circumstances of a party, to. his family connection and situation in life, to the claims of justice of others whose rights or safety were involved in his declaring the truth, to Ms,responsibility to a tribunal above all earthly courtJ for his falsification or suppression of the truth — these' and others might very naturally be an ‘inducement’’to a party to make a confession. Yet a confession so induced would not necessarily be incompetent; for the inducement would not be illegal. ’ ’

If the testimony of Mr. Cashman referred to in the opinion in chief is material, it can be only on the theory that at the time appellant made this confession his mind was in such condition because of his illness that he was incapable of knowing and appreciating what he was doing, and I do not understand my Brethren to predicate the reversal on any such ground. Moreover, this testimony was not before the court when the confession was admitted, and after the introduction of Cashman’s testimony the court was not requested to exclude the confession, and, in the absence of such a request, was not called upon to do so. The testimony is of no material value, however, because Cashman was not with Fitzgerald when the confession was made. The interview about which he *219 testified was the second one which took place on the evening before the making of the confession.

But, even if it should be conceded that this confession was obtained by Fitzgerald under circumstances which render it ordinarily incompetent, the judgment of the court below should not be reversed, for the reason that at least two other confessions were made by appellant and introduced in testimony, one to Dr. Hicks at a time when it is manifest from the evidence that whatever fear or hope may have induced the confession to Fitzgerald had passed out of his mind, or, rather, was not then influencing him in what he said, and another to Mr-'Cashman, who was introduced and testified, not in behalf of the state, but in behalf of Appellant himself. Any ground for reversing the judgment of the court below because the admission of the confession to Fitzgerald therefore disappears, for the reason that all doubt of the trustworthiness of the confession has been removed, because of its confirmation by appellant on two separate occasions.

And, moreover, since the facts contained in his confession to Fitzgerald were fully proven by these two other confessions, and the verdict was fully supported thereby, no harm was done appellant by the admission of Fitzgerald’s testimony, even though it be conceded to be incompetent, for this court has decided “many a time and oft” that it will not reverse the judgment of a court below because of the admission of incompetent evidence to establish a fact otherwise sufficiently proven, and that “a judgment which is fully supported by competent evidence will not be disturbed because of the admission of improper testimony.” See the legion of Mississippi cases in support of these two propositions cited in 1 Miss. Dig., p. 157, sec. 1051.

Had the confession made to Fitzgerald been excluded and the ones made to Dr. Hicks and Mr. Cashman been admitted, and the one testified to by Dr. Hicks was ad *220 mitted without objection, there can hardly be a doubt but that the verdict rendered would have been the same as it now is. When Dr. Hicks asked appellant if he had made a confession, he replied, “ Yes; I have made a clean breast of it.” Then, in the language of the witness:

“I asked him why he made the confession, and he said ‘Because I am tired of it; all life has been nothing but days of darkness to one of sunshine to me for the last ten years, and life holds no pleasure to me, and I had as soon die as live, and I had rather they hang me than stay one year in the penitentiary, and the quicker the better I wish they would do it tomorrow.’ And I asked him what end of the ax he hit him with, and he said: ‘I hit him first with the blunt end, and then he groaned and groaned, and made a noise I thought would attract attention, and I went back and struck him two or three more licks until he ceased all groaning or noise.’ And I asked him why he did that. He said: ‘Well, I don’t know, except I didn’t think I had been treated right or fairly.’ And I said: ‘In what way?’ I said: ‘In what way have you been treated unfairly?’ And he said; ‘Well, Mr. Brewer brought me down here under the promise he would look after me and give me a job;’ and said, ‘I got here, and the financial outlook was not as bright as Mr. Brewer hoped for, and he abruptly told me he was going to sell his boats and disband and go back, and I would have to shuffle for .myself, and I got mad about it, and thinking over the matter, and the more I thought of it the madder I got, and I went out on the front part of the boat, and sat out there and meditated over it for an hour or more, and determined to kill him,, and went back and struck him with the ax.” (Becord, p. 85.)

For these reasons, I think the judgment of the court below should be affirmed.