Ellis v. State , 65 Miss. 44 ( 1887 )

Arnold, J.,

delivered the opinion of the court.

Before a confession is received in evidence against a defendant in .a criminal trial, it should be shown that it was voluntary, that is to say, made without the infltience of hope or fear being exerted on the accused by any other person. Whether it was so made or not, is .a preliminary matter for the court and not for the jury to determine. The jury have nothing to do with the competency of evidence; that is a question exclusively for the determination of the court. The •court should decide in the first place, after investigation, whether .a proposed confession shall be heard by the jury or not, and if it is deemed competent by the court, and is permitted to go to the jury? they are the exclusive judges of its weight and value as evidence. When it is proposed to introduce in evidence, a confession of the .accused against himself, the court should, upon a preliminary investigation, conducted out of the presence and hearing of the jury, if xequested by the defendant, determine whether it is competent or not. If satisfied after hearing all the testimony pertinent to the inquiry, that the confession is admissible, it should go to the jury, but unless it plainly appears that it was free and voluntary — if there is a reasonable doubt against its being free or voluntary — it should be excluded from the jury. Simmons v. The State, 61 Miss. 243.

After a confession has been admitted by the court, either party has a right to produce before the jury the same evidence which was submitted to the court when it was called upon to decide the question of competency, and all other facts and circumstances relevant to the-confession, or affecting its weight or credit as evidence; and if it should be made to appear at this point, or any other, during the-progress of the trial, that the confession was made under such circumstances as to render it incompetent as evidence, it should be-excluded by the court.

The jury cannot reject or disregard a confession which has been admitted by the court, merely because they may deem it incompetent, for the competency or incompetency of evidence is a legal question not within their province; but on the other hand, they are-not bound to believe or attach any weight or credit to a confession, on the ground alone, that the court has decided that it was admissible and might be heard by them. The jury has the same freedom of action in reference to confessions which they have in regard to other testimony. Brister v. The State, 26 Ala. 107; Com. v. Knapp, 10 Pick. 477.

The declaration made in Garrard v. The State, 50 Miss. 147, to the effect that whenever there is a conflict of testimony as to whether a confession was voluntary or not, it then becomes a question of fact to be determined by the jury, and the court is thereby relieved of the duty and responsibility of deciding as a preliminary matter whether it was voluntary or not, is erroneous, and the-decision on that point is disapproved and overruled. 1 Greenleaf Ev., § 219; Whart. Cr. Ev., § 689; Simmons v. The State, 61 Miss. 243 ; 1 Phillips on Ev., 3-7, and 543.

The second instruction asked by appellant and refused, should have been given. It is true, that it suggests in one part that the jury should disregard the confession if they believed it incompetent or “brought about by fear;” but this was coupled with the declaration that it was not to be so treated unless they also believed that it was untrue. Of course, if the confession was believed by the jury to be untrue, no matter from what cause, it should have been disregarded as evidence.

The instruction would have been more accurate if it had simply imformed the jury, that if they believed from the evidence that the confession was untrue they should disregard it, or if they believed from the evidence that it was made under the influence of hope or fear, they should take this into account in determining what weight or credit, if any, they would attach to it as evidence.

Reversed and remanded.