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J. Seaborn Holt, Associate Justice. On a charge of murder in the first degree, appellant, Frank Andrew Payne, was, on January 11, 1956, tried, found guilty as charged and his punishment fixed by the jury at death by electrocution; We affirmed, Payne v. State, 226 Ark. 910, 295 S. W. 2d 312. On appeal to the Supreme Court of the United States, the judgment was reversed for error in introducing in evidence a coerced confession of appellant, Payne v. Arkansas, 356 U. S. 560, 2 L. Ed. (2d) 975, 78 S. Ct. 844. Thereafter, in April 1959, appellant was again tried and a jury again found him guilty of murder in the first degree and fixed his punishment at death in the electric chair. The present appeal followed.
For reversal, appellant assigns eight alleged errors. After reviewing them all, we find merit in but one of appellant’s assignments and that is number five which is: “ That the Court erred in admitting into evidence the actions of the appellant in connection with an alleged re-enactment of the crime immediately following the giving of an involuntary confession.”
Appellant, a Negro 19 years of age, brutally murdered his employer on the night of October 4, 1955 in the office of his victim’s lumber yard in Pine Bluff, Arkansas. (Reference is made to the first appeal for a more complete statement of the facts.) Appellant’s first confession, as indicated, was held to be coerced by the Supreme Court of the United States on the undisputed facts which are recited in that opinion as follows: ‘ ‘ The undisputed evidence in this case shows that petitioner, a mentally dull 19-year-old youth, (1) was arrested without a warrant, (2) was denied a hearing before a magistrate at which he would have been advised of his right to remain silent and of his right to counsel, as required by Arkansas statutes, (3) was not advised of his right to remain silent or of his right to counsel, (4) was held incommunicado for three days, without counsel, advisor or friend, and though members of his family tried to see him they were turned away, and he was refused permission to make even one telephone call, (5) was denied food for long-periods, and, finally, (6) was told by the chief of police ‘that there would be 30 or 40 people there in a few minutes that wanted to get him,’ which statement created such fear in the petitioner as immediately produced the ‘confession’. It seems obvious from the totality of this course of conduct, and particularly the culminating threat of mob violence, that the confession was coerced and did not constitute an ‘expression of free choice’, and that its use before the jury, over petitioner’s objection, deprived him of ‘that fundamental fairness essential to the very concept of justice,’ and, hence, denied him due process of law, guaranteed by the Fourteenth Amendment. ’ ’
The facts in the present case show that appellant, after he made and signed the above confession at about three o ’clock in the afternoon in the presence of the chief of police, police officers and others, including a newspaper reporter, was later on the same afternoon, at about five o’clock, removed in the car of the chief of police to the scene of the crime and in the presence of the same officers and others who had witnessed his confession, and without being allowed to consult counsel or anyone, was directed to re-enact the crime which he proceeded to do. In re-enacting the crime, he went through actions essentially and, in effect, what he had said in the confession less than two hours before. He demonstrated where he had picked up an iron bar from behind the door, how he had walked over to the desk where his employer was and struck him, then going behind the counter and striking decedent several more times, finally taking the wallet from decedent’s body, some money from the cash drawer, and then fleeing.
It seems to us, and we hold, that this re-enactment amounted to but a part of his coerced confession, and was also coerced and unlawfully obtained. Our rule in this state on the admissibility of confessions was announced in the early case of Love v. The State, 22 Ark. 336, where we held: “Confessions are not admissible against a party charged with crime, unless freely and voluntarily made, and the onus is upon the State to prove them of this character. When the original confession has been made under illegal influence, such influence will be presumed to continue and color all subsequent confessions, unless the contrary is clearly shown”, and in 50 Ark. 305, 7 S. W. 255, Corley v. State, we said: ‘ ‘ The rule is established in this state, in accord with the unvarying current of authority elsewhere, that a confession of guilt, to be admissible, must be free from the taint of official inducement, proceeding either ‘from the flattery of hope or the torture of fear’ ”, citing Bullen v. State, 156 Ark. 148, 245 S. W. 493. We also held in Turner v. State, 109 Ark. 332, 158 S. W. 1072: “Where improper influences have been exerted to obtain a confession from one accused of a crime, the presumption arises that a subsequent confession of the same crime flows from that improper influence; but such presumption may be overcome by positive evidence that the subsequent confession was given free from undue influence. ’ ’
The general rule regarding the admissibility of a subsequent confession- following an involuntary and coerced confession is stated in 20 Am. Jur., Evidence § 487, in this language: “If one confession is obtained by sueh methods as to make it involuntary, all subsequent confessions made while the accused is under the operation of the same influences are also involuntary. It is immate-rial, in this connection, what length of time may have elapsed between the two confessions, if there has been no change in the circumstances or-situation of the prisoner. Once a confession made under improper influences is.obtained, the presumption arises that a subsequent confession of the same crime flows from the same influences, even though made to a different person than the one to whom the first was made. However, a confession otherwise voluntary is not affected by the fact that a previous one was obtained by improper influences if it is shown that these influences are not operating when the later confession is made. _* ' * * The evidence to rebut the presumption that the subsequent confession, like the original confession, is involuntary must be presented by the prosecution and must be given at the time the subsequent confession is offered in evidence, provided the court is then cognizant that the accused has made a prior involuntary confession. The evidence to rebut the presumption must be clear and convincing, however. ’ ’
A review of this record convinces us that the fear and coercion that tainted the first confession were present in the re-enactment which, as indicated, we characterize and hold to be, in effect, a second coerced confession and hence evidence adduced at the re-enactment is also inadmissible and prejudicial to appellant.
Accordingly, the judgment is reversed and the cause remanded.
Robinson, J., concurs. Harris, C. J., McPaddin and Ward, JJ., dissent.
Document Info
Docket Number: 4953
Judges: Holt, Robinson, Harris, McPaddin, Ward, McFaddin
Filed Date: 2/29/1960
Precedential Status: Precedential
Modified Date: 11/2/2024