State v. Guie

MR. JUSTICE HOLLOW AT

delivered the opinion of ¡the court.

The defendant was convicted of the crime of burglary and has appealed from the judgment and from an order denying his motion for a new trial.

On December 5, 1917, the defendant, while serving a term in the Washington state penitentiary under the name of Alfred Gouen, wrote to the warden the following note:

*489 “December 5th, 1917.

“Mr. Henry Drum:

“I have served over six months over my minumum, and would like to have you take my case up before the board for extradition to Montana, I am wanted there for robbery. i I am wanted in Helena, Mont., for robbing the Northern Pacific depot of $600. I have nothing to say about this but to plead guilty. I am guilty of both crimes, for I don’t see no way out, and I wish you would get me an extradition this board so that I can get a start in serving for the others'. I know I am going to be tried for these crimes, and if possible I would like to take my medicine right away. I think I have served time enough already for this offense, and if possible would like-to have an interview with you.

“Very respectfully,

“Alfred Gouen, 8149, 14 F. 3 .”

On January 21, 1918, D. E. Nicholson, secretary to the warden, had a conversation with the defendant relative to the note and its contents, and on April 3 following, E. M. Reynolds as special agent of the Northern Pacific Railway Company, had a conversation with defendant. Upon the trial of this case, and over the objections of counsel for defendant, the state was permitted to introduce in evidence the note (Exhibit 1), the conversation between defendant and Nicholson, and a portion of the conversation between defendant and Reynolds. The rulings of the trial court admitting this evidence furnish the only grounds of complaint in this court.

1. The admission in evidence of Exhibit 1 is contested upon the ground that it is a confession, and that a proper preliminary showing was not made that the writing of the note was the voluntary act of the defendant. Courts and text-writers speak somewhat loosely of voluntary and involuntary confessions, and though the terms “voluntary” and “involuntary” are not technically accurate, they serve for all practicable purposes. [1] By “involuntary confession,” as the term is used, is meant a confession -prompted by some inducement, generally *490 of hope or fear, sufficient to move a reasonably prudent person under the circumstances of the confessing party, to make such confession without regard to its truth or falsity. The rule governing the admissibility of confessions may be stated, briefly, [2] as follows: If the inducements to the confessing party are such that the prospects of bettering his situation by speaking even falsely would appeal to him, as a reasonable person, as the better alternative to remaining silent, then the confession ought not to be received as evidence against him, because it is testimonially untrustworthy. The purpose of the rule is’not to exclude the truth, though it consists of an admission of guilt, but to avoid the possible confession of guilt by one who is, in [3] fact, innocent. The fair test to determine whether a confession is admissible is this: Was the inducement held out to the confessing party such as that there is any fair risk of a false confession? (State v. Sherman, 35 Mont. 512 , 119 Am. St. Rep. 869 , 90 Pac. 981 .) Or, as the same rule is stated differently: “Were the prospects attending^ confession,, as weighed at the time against the prospects attending nonconfession, such as to have created, in any considerable degree, a risk that a false confession would be made?” (1 Wigmore on Evidence, Chap. 28, p. 937.)

The record , discloses that at the time Exhibit 1 was written, [4, 5] the officers of the Washington penitentiary did not know that the crime referred to in the exhibit, or any crime connected with the same matter, had been committed, and did not know, and could not have known, that defendant was accused or even suspected. From the very nature of the case they were, therefore, not in a position to hold out any inducements to defendant to make the statement which he did make. But, furthermore, when Nicholson interviewed him in January, 1918, he exhibited to defendant the note (Exhibit 1) and discussed with him fully every statement contained in it, and, when asked by Nicholson why he wrote the note, defendant replied: “It has been worrying me since I have been here, and I wanted it straightened. I have been thinking about it much.”

*491 Taking into consideration the character of the note, and these surrounding circumstances, the trial court was fully [6] justified in its ruling. The absence of inducements sufficient to render the confession inadmissible need not be shown by direct evidence. It may be proved, like any other fact, by circumstantial evidence. (16 C. J. 735.)

2. In so far as defendant’s confession to Nicholson is concerned, it is sufficient to say that proper preliminary proof [7] was made. Nicholson testified that he did not hold out any inducements to defendant — did not make any threats or promises. The conversation was properly admitted. It was competent for the state to show that defendant had confessed his guilt, and it was not rendered inadmissible because it followed the terms of Exhibit 1. 'Whether Exhibit 1 or the conversation should be received in evidence first, was a matter within the discretion of the trial court. (In re Colbert’s Estate, 51 Mont. 455 , 153 Pac. 1022 .) No possible prejudice could have resulted to defendant, since Exhibit 1 was introduced in evidence.

3. The witness Reynolds testified that he had a conversation with defendant on April 3, 1918, and in the conversation defendant stated that on May 17, 1915, and two or three days prior thereto, he and two companions were stopping on upper Main Street, in Helena, playing pool; that their finances were about exhausted; that on May 17 they went down toward the sixth ward and between 12 o’clock and 12:15, went west past the section-house; that they divided up a bunch of money, he (defendant) taking $200, his companions taking the balance; that he then went to Billings; that he did not know the names of his companions and never saw either of them afterward; that, while they were in the depot, a woman came to the ladies’ waiting-room, and out again. Counsel for appellant, assuming that Reynolds testified to a confession made by defendant, invokes the rule heretofore considered; but the assumption is erroneous and the argument based thereon without merit. “A confession, as applied in criminal law, is a statement by a per *492 son made at any time afterwards, that he committed or participated in the commission of a crime.” (2 Wharton’s Criminal Evidence, sec. 622.)

“The distinction between a confession and an admission, as applied in criminal law, is not a technical refinement, but based upon the substantive differences of the character of the evidence [8, 9] educed from each. A confession is a direct acknowledgment of guilt on the part of the accused, and, by the very force of the definition, excludes an admission, which, of itself, as applied in criminal law, is a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt, but of itself is insufficient to authorize a conviction.” (2 Wharton’s Criminal Evidence, sec. 678a; 1 R. C. L. 550; 12 Cyc. 418; State v. Campbell, 73 Kan. 688 , 9 Ann. Cas. 1203, 9 L. R. A. (n. s.) 533, 85 Pac. 784 .)

The statement made to Reynolds, as detailed above, is not a confession, and is not subject to the rule which requires preliminary proof of its voluntary character. (1 Greenleaf on Evidence, 16th ed., 346, 347; McGehee v. State, 171 Ala. 19 , 55 South. 159 ; People v. Knowlton, 122 Cal. 357 , 55 Pac. 141 .)

The judgment and order are affirmed.

Affirmed.

Mr. Chief Justice Brantly and Associate Justices Hurly and Cooper concur.