Jordan v. State

Fisher, J.:

This was an indictment found by the grand jury at the June term, 1856, of the circuit court of De Soto county, charging the prisoner with the murder of a slave named Aaron, upon which the prisoner was convicted and sentenced at that term of the court.

It is first assigned as error, that the court below erred in permitting certain statements or confessions of the prisoner to be given in evidence before the jury. One Mallory being introduced as a witness on the part of the state, testified that after the killing of the slave Aaron, and after the arrest of the prisoner, he, witness, and one Williams, went to the prisoner, and attempted to draw him into conversation in regard to the killing of Aaron ; that the prisoner refusing to answer their questions, they told him that if he did not talk they would kill him ; the witness having a pistol then cocked in his hand, with which he threatened to shoot the prisoner; and the other a stick, with which he threatened to strike, and did strike the prisoner one blow. Tinder the influence of these threats, and violence thus inflicted, the prisoner proceeded to state the time and place, when and where he lost his knife, describing it at the same time. The court admitted this evidence to go to the jury, upon the statement of the district attorney, that he expected to show, by other testimony, that, upon search being made, a knife corresponding with that described was found at or near the spot indicated by the prisoner. It is insisted by counsel, that the knife found upon this search does not correspond with that described by the prisoner, and that the court therefore erred in admitting the testimony. Counsel is, doubtless, right in his construction or view of the testimony, as well as the rule of law, that the place of finding, and knife found, must both agree with the description given by the accused, and, if a discrepancy appeared as to either or both, the court should have excluded the testimony. We prefer, however, not to rest our decision on this point, upon this *931 ground, as it would seem to sanction, at least to some extent, tbe legality of tbe testimony, as well as to give countenance to the unauthorized mode by which it was procured.

If there is a principle which may be regarded as settled, in the criminal jurisprudence of this country, it is, that the accused has the right under any and all circumstances, to maintain his silence in regard to the commission of the crime alleged against him, and the rule which protects him against a full confession of guilt, if it appeared that the confession had been extorted by violence, also protects him against testimony which could only be dicover-ed, or made available through the instrumentality of such confession^for otherwise the rule could always be successfully evaded. The rule which excludes the whole confession must necessarily exclude all its parts. That which protects a man against the principal thing, must, of course, protect him against its incidents. The rule which secures a man against lawless violence, must, of necessity, to be efficacious, secure him against the consequences of such violence. It is no answer to say that the confession was true; the question, and the only question which can be considered is, whether the confession was voluntary, extorted by threats or violence, or induced by the hope of reward, or immunity from punishment. It was not only the right of the party accused, to preserve his entire silence in regard to the tilling, but to resist force by force, to compel him to act otherwise, if it had been in his power to employ such force. So far from the means employed to procure the confession being sanctioned by law, it is not even within the power of any branch of the government, as at present organized, to give to such means any legal validity whatever. He could not be compelled by any of the government authorities to give evidence against himself, and an express statute, authorizing such a course of proceeding, would be simply a nullity under the constitution. It will certainly require no argument to show that there can exist in this state no rule of the common law, in regard to a particular subject, when an act of the legislature on the same subject would be nugatory. To state the proposition is to decide it. Let us then apply the principle to the case at the bar. Can it be contended for a moment, that a confession.extorted by a threat of violence, extending to even *932 the life of the accused, would be admitted as evidence against him, merely on the ground that the violence was threatened by private individuals, and not by the officers of the government. If it is true that a person, though accused of crime, is still protected by law, upon what principle can it be contended, that his act shall bind him, if it shall appear that the act was the result of force, employed by persons in violation of this right ¾ Must all, or only a part of that which was wrung from him be treated as if it had never been uttered \ There can certainly be but one answer to these inquiries. The state being powerless as to this mode of procuring testimony, can give no countenance or sanction to a similar mode, when employed by individuals. The power which restrains the state, equally restrains her citizens in this respect. To hold otherwise would not nnfrequently expose the accused to the excited passions or fury of that class of population who in all countries are the subjects upon whom the criminal jurisprudence of the government can be most beneficially employed.

We are therefore of opinion, that the court below erred in admitting the testimony. 1

Judgment reversed and venire de novo awarded.

Before any confession can be received in evidence in a criminal case, it must be shown that it was voluntary. Wharton Am. Cr. Law, 219; Archbold Cr. Pr. & Pl., 126, 127; 2 Russell on Crimes, 825; 1 Greenl. Ev., 219; 1 Phill. Ev., 401; 2 East P. C., 659; Rex v. Tyler, 1 C. & P., 129; Rex v. Enoch, 5 C. & P., 539; Rex v. Court, 7 C. & P., 486; People v. Ward, 15 Wend., Roscoe Cr. Ev., 37 et seq. If any inducement by promise of favor or by threat be held out to the prisoner—as by telling him “hehad better tell all he knew” (Rex v. Kingston, 4 C. & P., 387; Rex v. Gardner, 18 Law J., 1 M., 2 C. & K., 920); “I’ll forgive you if you will tell the truth,” (C. & M., 534); “it is of no use to deny it, aB every body knows you did it” (Rex v. Mills, 6 C. & P., 146); Archbold Cr. Pr. & Pl., 127. In Alabama, where it was proved that a 6lavc was arrested, tied and left by his master in charge of a third person, to whom he immediately after made a confession, proof that the master “ had always been in the habit of tying his slaves when they were charged with any matter, and whipping them until they confessed the truth, and that he had frequently treated the prisoner in the same way,” was held admissible in order to determine whether the confession was induced by hope or fear. Spencer v. State, 17 Ala., 192 ; see Franklin v. State, 28 Ala., 9 . In the same state, a slave’3 confessions to his master were excluded because the latter said to him: “ Boy, these denials will only make the matter worse;” and the repetition of them before the examining magistrate in the presence of the master was also ruled inadmissible, the magistrate having neglected to caution him as to their effect. Wyatt v. State, 25 Ala., 9 . In the ease of Dick v. State, 30 Miss., 593 , supra p. 811, where a white person remarked, in the hearing of a slave who was charged with the murder of his master, that “it would *933 be better for the guilty to confess, that the innocent might not be punished,” it was held that a confession thus obtained was admissible.

Where a previous confession is obtained by improper means, any subsequent confession given on its basis is inadmissible. Roscoe Cr. Ev., 45, 46; Moore v. Com., 2 Leigh, 701 ; State v. Guild, 5 Halst., 163; Case of Bownhas et al., 4 Rogers, Rec., 136; Case of Stage et al., 5 ib., 177; Case of Milligan et al., 6 ib., 69; State v. Roberts, 1 Dev., 259 ; Peter v. State, 4 S. & M., 31 ; Van Buren v. State, 24 Miss., 572 ; Com. v. Knapp, 10 Pick., 477 ; Com. v. Harman, 4 Barr, 269; Whaly v. State, 11 Ga., 123 ; Com. v. Taylor, 5 Cush., 505 ; Conley v. State, 12 Mo., 462 ; State v. Nash, 12 La., 895 ; State v. Fisher, 6 Jones Law, 478 ; Simon v. State, 36 Miss., 636 ; 2 Russell on Crimes, 826; 1 Greenl. Ev., 221; Maynell’s case, 2 Lewin’s Cr. Cases, 122; Sherrington’s case, ib., 123; Rex v. Cooper, 5 C. & P., 135; Wharton Am. Cr. Law, 694; Deathridge v. State, 1 Sneed, 75 ; 2 Russ. on Cr., 832.

But the presumption of a continuing influence may be repelled; and then a subsequent confession becomes admissible. Rex v. Sexton, 6 Peters, 83 ; such presumption may be removed by tbe length of time intervening between the threats and the examination, from proper warning of the consequences of such confession, or from any other circumstances that might be reasonably considered sufficient to dispel the fears Induced by the threats. Peter v. State, 4 S. & M., 31 ; Com. v. Knapp, 10 Pick., 477 ; State v. Roberts, 1 Dev., 259 ; State v. Gould, 5 Halst., 163; 1 Greenl., Ev., 221; Wharton Am. Cr. Law, 694; 2 Russ. on Crimes, 824, 836; State v. Hash, 12 La. Ann., 895 ; State v. Carr, 37 Vermont, 191; 2 Stark. Ev., 33.