Brown v. State , 173 Miss. 542 ( 1935 )

Stewart was murdered on the thirtieth day of March, 1934. The March term of the circuit court of Kemper county was then in session. Appellants were indicted for the murder on the fifth day thereafter — the 4th of April — and the trial began and ended on the 6th day of April, the second day after the indictment. Appellants were without counsel. The court appointed John A. Clark, L.P. Spinks, J.H. Daws, and D.P. Davis, members of the Kemper County Bar, to defend them. It is stated in the briefs that Mr. Spinks was sick and unable to attend the trial, Mr. Dawes, for reasons of his own, refused to join in this appeal, leaving Messrs. Davis and Clark. It is not shown whether these four were the only members of the Kemper County Bar or not.

Leaving out the confessions, the evidence was wholly insufficient to sustain the conviction. The evidence showed without any substantial conflict that the appellants were driven to confess their guilt by most brutal and unmerciful whippings and beatings at the hands of persons who doubtless thought they were guilty. A large part of this character of evidence was not specifically objected to by counsel representing appellants. The majority opinion holds that for that reason its competency cannot be raised on appeal.

The first witness for the state testifying to the confessions was the sheriff of the county, Adcock. He testified that the confessions took place in jail and were free and voluntary, but stated that while one of appellants was confessing another one came in who had been so badly whipped and beaten that he was unable to sit down. The other appellants saw his condition. The evidence of Adcock was objected to by appellants and the objection overruled. Whether a confession is free and voluntary is a question for the court, but before the court is justified in admitting the confession it must be shown beyond a reasonable doubt and to a moral certainty to have been free and voluntary. Ellis v. State, 65 Miss. 44, 3 So. 188, 7 Am. St. Rep. 634; Williams v. State, 72 Miss. 117, 16 So. 296; State v. Smith,72 Miss. 420, 18 So. 482; Johnson v. State, 107 Miss. 196, 65 So. 218, 51 L.R.A. (N.S.) 1183; Fisher v. State, 145 Miss. 116,110 So. 361. Adcock's testimony failed to meet that requirement.

Other evidence showed and, as stated, without any material conflict, that all the confessions made to the sheriff and other witnesses were forced by brutal whippings and beatings. As also stated, these confessions went in without objection by appellants' counsel. It is doubtful whether any further objection was necessary after the testimony of Adcock was objected to. It appears that that was enough to give the court to understand that all confessions were objected to on the same ground. But, if wrong about that, should the general rule laid down in the controlling opinion govern in this case? It is a common saying that there are exceptions to all rules. If that be true, this is one case that ought to come within the exception. Wipe out these confessions, and the court would have been forced to direct a verdict of not guilty. The court had staring it in the face this incompetent testimony without which there could be no conviction. Must the lives of the appellants be taken by the law, because their counsel failed to bring to the attention of the court this incompetent evidence? Are they without remedy? To illustrate: A is indicted for the murder of B; the evidence is sufficient to show the murder by some one, but the only evidence that A was the criminal agent is purely opinion testimony; witnesses testify that in their opinion A is the guilty agent; A's counsel does not object to the testimony; there is a conviction; A is sentenced to be hanged and appeals to the Supreme Court; must he suffer death because of the failure of his counsel to object to the testimony on the ground of incompetency?

Viewing this trial as a whole, it appears to me that it is condemned by the principles laid down by the Supreme Court of the United States in the Scottsboro cases (Powell v. Alabama)287 U.S. 45-77, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527. Appellants were denied due process — a fair and impartial trial. They were represented by counsel who had neither time nor opportunity to do their part. Due process requires representation by counsel, either employed by the accused or appointed by the court. The court so held in the Alabama cases (Weems v. State, 224 Ala. 524,141 So. 215; Patterson v. State, 224 Ala. 531, 141 So. 195; Powell v. State, 224 Ala. 540, 141 So. 201), and further that the right was denied where, on being arraigned, the accused was not asked whether he had or was able to employ counsel or wished to have counsel appointed, or whether he had friends or relatives who might assist in that regard if communicated with; that due process required a fair, orderly, and deliberate trial.

The case in a few words is this: The murder one day. Appellants indicted the fifth day thereafter. The second day after the indictment they were tried and convicted on confessions of guilt whipped and beaten out of them. Four members of the bar had been appointed to defend them; one failed to act at the trial, and one failed to join in the appeal. Those acting failed to object to the major part of the evidence of confessions. Without the confessions the evidence was wholly insufficient to convict.

In some quarters there appears to be very little regard for that provision of the Bill of Rights guaranteeing persons charged with crime from being forced to give evidence against themselves (section 26 of the Constitution). The pincers, the rack, the hose, the third degree, or their equivalent, are still in use.