King v. State , 155 Ga. 707 ( 1923 )

Russell, C. J.

(After stating the foregoing facts.) The fact that the certiorari was granted in this case, or in any other instance or cause for that matter, does not necessarily mean that this court was of the opinion at the time of granting the certiorari that it would review or undertake to 'consider all of the assignments of error which had been presented to the Court of Appeals. As held by this court in Central of Georgia Railway Co. v. Yesbik, 146 Ga. 620 (91 S. E. 873), it was not the purpose of the amendment of 1916 to the constitution, whereby provision was made for the issuance of a writ of certiorari to the Court of Appeals, that such review was conferred upon all litigants as a matter of right. If this had been true, there would be but little reason for the existence of the Court of Appeals; for the losing party in practically every case, if dissatisfied with the judgment of .the Court of Appeals, would demand and avail himself of the writ of certiorari, and this court would have to decide cases of which, under the constitution, the Court of Appeals has exclusive jurisdiction, as well as those in which jurisdiction has been reserved to the Supreme Court, just as this court did before the creation of the Court of Appeals. And with the increase in population and the consequent increase in litigation since 1896, when the number of judges of this court was doubled, the task would be an impossible one. Under the ruling in the Yesbik case, supra, the amendment to the constitution above referred to as to certiorari from the Court of Appeals to the Supreme Court has been construed by a unanimous bench, and our duty is confined to cases which present matters of gravity and importance. This court has not hitherto undertaken to define at length the scope of these two terms, nor the precise sense in which the words gravity and importance are to be understood and applied. As to the case at bar it is enough to say that the rule that incriminatory admissions and confessions must not be admitted if there is evidence, arising from the testimony as to the confession itself, that the confession was induced by the slightest hope of benefit, or the remotest fear of injury, is so fundamental and important that this court in such an instance ought to grant the writ of certiorari and carefully investigate the complaint. : !

The grant of the writ of certiorari because this court may bé of the opinion that a question of gravity or importance or a question of both gravity and importance is involved will not necessarily require the adjudication of other assignments of error presented to the Court of Appeals. For this reason we shall only pass upon the single question as to whether the trial judge erred in refusing to exclude the evidence offered by the testimony of the fire inspector, and consequently Avhether the Court of Appeals erred in affirming the judgment of the lower court in spite of the error — if it was error — in overruling the defendant’s motion to withdraw from the jury the evidence of the fire inspector as to the confession. Section 1032 of the Penal Code declares : “ To make a confession admissible, it must have been made voluntarily, without being induced by another, by the slightest hope of benefit or remotest fear of injury.” Words can hardly be used tending more strongly to protect the right of one accused of crime of his personal right to be free from cruelty, artifice, or the machinations of prosecutors during his confinement and imprisonment before trial. ■ I do not think it necessary to state any of the many decisions of this court, all of which have sought to maintain the rule of evidence embodied in the code section named, but each of which differs somewhat from the others in the sayings and doings of the parties and the surroundings of the defendant at the time of the alleged confession, from which the court was compelled to make a finding as to whether there was in each particular case either the slightest hope of benefit or the remotest fear of injury by another, and to determine from the various and different circumstances whether the trial judge erred in admitting the testimony in the particular case then under review. And in all of the adjudications this court seems to have applied in each case the requirements of section 1032, supra. We shall follow the beaten path, and take the code section as a yardstick and apply it to the circumstances in this case. The section begins: “ To make a confession admissible.” The use of this language implies that all confessions are prima facie inadmissible. This is necessarily true in view of the preceding section (1031), in which it is declared that “ Confessions of guilt should be received with great caution. A confession alone, uncorroborated by other evidence, will not justify a conviction.” And the further fact, that running like a thread through the warp and woof of all our jurisprudence is the great Anglo-Saxon principle that no man is required to incriminate himself, which is embodied in America in our constitutions both State and National.

From our examination of the record we think our learned brother of the trial bench, whose ability and fairness can not be questioned, in the hurry of the trial overlooked the fact that upon the court alone rests the prerogative of admitting testimony, and that where proof of confessions is offered the court should not admit such proof unless his mind is satisfied that this testimony, like all other evidence, is admissible. Of course where a prima facie case of admissibility is made which satisfies the judge, he admits this testimony as any other testimony, to the jury, and they pass upon the credibility of the testimony in the event and after they too have determined whether the statement was freely and voluntarily made. However in every trial, while the jury pass upon the credibility of evidence if it is before them, the question whether certain testimony, or any particular evidence, shall be submitted to the jury to pass upon rests solely with the judge. As it appears from the record in this case, the judge, in overruling the motion to exclude, stated that he would leave the admissibility to the jury: Was the statement by the defendant made voluntarily without the slightest hope of benefit or the remotest fear of injury? The defendant, even if he be guilty, evidently thought himself secure from harm as the sole possessor of his secret — the only person that knew — about the arson. His letter to the fire inspector, that “ I will be in Tifton any time that you want to communicate with me,” no matter how guilty he may have been, evidences that he was not afraid of any disclosure which might affect his liberty. So imbued was he with the sense of security that when the inspector came to Tifton a month later, and he heard that tíre inspector had been trying to find him, he went at once and found the inspector. According to the testimony he did riot demur to conversing with the inspector, or seek to delay the interview. If in response to frank and direct questions from the inspector he had made the admissions at that time which were later wrung from him, reduced to writing and sworn to, it might be said that the statement was voluntary.

The Code ordains as a first general requirement, which is later given a more specific definition, that to make confessions admissible they must be made voluntarily. The last word was purposely used. Voluntary is practically synonymous with spontaneously, of his own free will; and not when overmastered by the will of another. It is derived from the Latin volus, which means one’s own will. The reading of the testimony sought to be excluded, as it will be found in the statement of facts, and the picture of this young defendant taken by an officer, whose duties are statewide, to the room which the defendant, who lived in Tifton, knew was the room of the judge of the superior court, and surrounded by the court stenographer, and an attesting officer, as well as another person, none of whom perhaps he expected to meet when he accepted the invitation of the State fire inspector to talk the matter over with him, where after being grilled for three hours, and being subjected to such a nervous strain that he broke down and cried, and at length after he was told that he was telling a different story from that told by his wife, and frightened by the statement that he needn’t lie because they had ample evidence to convict him, after being charged with guilt of a crime more heinous than arson' — -the crime of perjury, after having been sworn before his own examination, with no friend or counsel to advise him of his right and privilege to refuse to swear, he makes the confession which was admitted by the court. We cannot agree that the confession obtained under these circumstances can be said to be voluntary, for the witness establishing the confession testified that he reiterated and protested time and again that he knew nothing of the burning; and though he did not confess because he succumbed to tears or his awe of the situation and surroundings, it is testified that no confession came until the State’s officer told him to come on and make a clean breast of it, because as a general rule courts were lighter on those who did not give them much trouble. It is true that the witness says that he told him in that connection that that was a matter for the judge, and that the witness himself could not promise him anything. But is it not true that the defendant would naturally believe that if it was a general rule of the courts to be lighter on those who pleaded guilty, and gave no trouble, he would come under that rule if he would confess? Would he not at least entertain such a hope? A man may not have enough faith to believe, and yet may hope. Hope by itself is not enough to make belief, but hope may exist even though there be no foundation sufficient to support belief. To say that this statement of the defendant was induced without the slightest hope of benefit would, it seems to me, at least substitute in the statute for these two words the word belief, and, contrary to the statute, would admit all confessions unless it was established that the statements made to one accused of crime were so strong as to induce a belief that he would be benefited, when the law at present does not require the inducement which will exclude a confession to be that strong.

We think, too, that in this case the confession was induced by a remotest fear of injury. Here was a statewide officer who was receiving the statement of the accused after he had been duly sworn, who charged him with lying and perjury, and was warning him against committing that offense. The defendant probably did not know the difference between perjury and false swearing; but as the inspector stated that he was already in possession of ample evidence to prove the statements that the defendant was making were false, he was therefore prepared, so far as the defendant knew, to convict him of false swearing, and the statement made as to defendant’s lies, and the ability of the inspector to demonstrate the falsity of the defendant’s statements, can very well be construed as an omnious threat which would tend to provoke not merely a' remote fear of injury, but a very present fear of a conviction of a crime. We think that the testimony to which objection was made should have been excluded, irrespective of the guilt or innocence in this case; and aside from other assignments' of error in the bill of exceptions, to which for reasons heretofore pointed out we shall not direct our attention, the question of the admissibility of confessions is one of gravity and importance; and the Court of Appeals erred in affirming the judgment of the lower court, and this cause must be remanded for decision upon the point here involved, in accordance with the views expressed in this opinion.

Judgment reversed.

All the Justices concur. Beck, P. J., and Atkinson and Hines, JJ., concur in the result as announced in the headnote.