Territory of Montana v. McClin , 1 Mont. 394 ( 1871 )

Wade, C. J.

This case comes into this court on appeal from the judgment and bill of exceptions, upon the separate trial of defendant, .James P. McClin, indicted jointly with defendants, Nathan Ward, David Collier and John Maloney, for the crime of burglary.

It is contended by respondent that the record does not disclose the fact that any proper exceptions were taken at the trial to the rulings of the court upon the introduction of evidence, or to the charge of the court to the jury. This is an appeal from the judgment-roll, and the bill of exceptions is properly before the court for consideration. The bill of exceptions commences as follows :

“Now comes the defendant by his attorneys and tenders the following bill of exceptions, which were taken at the proper time and allowed.”

We think these words form a part of the bill of exceptions, and the bill being signed by the judge as correct, we must hold that to any ruling of the court, objected to at the time, as disclosed by the bill of exceptions, proper exceptions were taken at the time and allowed. This is the plain import and meaning of the language employed.

We are then to consider the case as disclosed by the bill of exceptions and the record. By the record the defendant was convicted upon the evidence of confessions alone. As shown in the testimony the defendant was arrested by one John Guy, deputy sheriff, and that he told defendant that it would be better for him to confess his guilt. There appears the following in the bill of exceptions:

“ In addition to the above, further evidence being adduced that a mob of one hundred men were around and about the jail where defendant was confined at intervals of nearly all one day; that threats were frequently made against defendant that if he did not confess he would have one hundred lashes, would be hung, etc.; that word was brought to defendant that one person confined with him and recently taken out by the mob had been hung ; that the names of defendant and others confined in jail and the addresses of their parents and friends had been taken down by John Gfuy, deputy sheriff, in writing, with their knowledge, that in consequence of these threats and demonstrations defendant was greatly excited and alarmed so that he shed tears; and further’, no evidence being produced that the inducements held out by the said deputy sheriff, John Gfuy, were at any time withdrawn, or that the mind of the defendant was at any time freed from the apprehensions occasioned by said violent threats and demonstrations ; the court admitted as evidence confessions of guilt made by defendant to said Gfuy at intervals for several days afterward. Defendant’s attorneys objected to the evidence at the time it was offered. The foregoing testimony having been adduced, the defendant’s attorneys put the following question to the witness, Gfuy: ‘Were the confessions of defendant made subsequent to the day of his first confession, made at your solicitation and advice, that it would be better for him ? ’ which question was ruled out by the court.

“ The court then charged the jury that they should regard as evidence all confessions of guilt made by defendant to said Gfuy after the day of the first confession.”

We think the court erred in refusing to permit the witness, Gfuy, to answer the question above set forth, and we are of opinion that a conviction upon the testimony of confessions alone is not warranted by the authorities.

Whether extra judicial confessions, uncorroborated by any other proof of the corpus delicti, are of themselves sufficient to found a conviction, has been gravely doubted. In the Homan laws such naked confessions would not work out a conviction. In each, of the English cases usually cited in favor of the sufficiency of this evidence there was some corroborating circumstances. In the United States the prisoner’s confession, when the corpus delicti is not otherwise proved, has been held insufficient for his conviction ; and this opinion certainly best accords with the humanity of the criminal code, and with the great degree of caution applied in receiving and weighing the evidence of confessions in other cases, and it seems countenanced by approved writers on this branch of the law. 1 Greenl. Ev. 346; Phillips’ Ev. 542, 543 and note; 15 Wend. 148; 16 id. 53.

Before any confession can be received in evidence in a criminal case, it must be shown that it was voluntary. The preliminary examination for this purpose must be addressed to the judge. “ A free and voluntary confession,” said Chief Justice Eyre, “is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of the crime to which it refers, but a confession forced from the mind by the flattery of hope or by the torture of fear, comes in so questionable shape when it is to be considered as the evidence of guilt, that no credit ought to be given to it, and therefore it is rejected.” 1 Leach’s Crim. Cas. 299; 15 Wend. 231; Phillips’ Ev. 542; 15 N. Y. 384; 37 id. 303.

In regard to the person by whom the inducements were offered, it is very clear that if they were offered by the prosecutor, or by an officer having the prisoner in custody, or by a magistrate, or, indeed, by any one having authority over him or over the prosecution itself, or by a private person in the presence of one in authority, the confession will not be deemed voluntary and will be rejected. 1 Greenl. Ev. 253, § 222.

In view of these authorities and principles which seem to be well settled, we think the court erred in refusing to permit the deputy sheriff, Guy, to answer if the alleged confession was not made upon his solicitation and advice to the prisoner that it would be better for him to confess.

Note. The words “ Now comes the defendant by his attorneys and tenders the following bill of exceptions, which were taken at the proper time and allowed,” were written by the clerk of the court in his journal at the time he copied the bill of exceptions, after the court had adjourned for the term. The district attorney and counsel for appellant did not sign any bill of exceptions that contained the foregoing words. The journal of the clerk was signed by Murphy, J., “ without examination.” At the October term, 1871, McClin was again convicted and received the same sentence, five years in the territorial penitentiary. — Rep.

Confessions to an officer, if admitted in evidence in any court, should be so admitted with the greatest care and caution, and after the possibility of any and every inducement has been removed, and the authorities seem to go to the extent of excluding any confession made to an officer under any circumstances. There may be some doubt as to this position, but certainly there is no doubt where the officer makes any promises or threats to induce a confession.

There was no evidence in this case, except the bare, naked confession of the defendant, as shown by the record, and it is exceedingly doubtful if a conviction could be worked out upon such testimony alone.

The verdict and judgment of the court below is set aside and a new trial granted.

Judgment reversed.