State v. Nicholas , 62 S.D. 511 ( 1934 )

I agree with the majority opinion as to its result in reversing the judgment of conviction on counts 1 and 2. I cannot, however, agree with the results in affirming the conviction as to count 4. The evidence is wholly insufficient to permit the jury to find appellant guilty under count 4. At its best, the evidence could only create in the minds of the jurors a guess as to appellant's guilt. The verdict seems to be the result of speculation upon weak and unsatisfactory evidence.

Certain exhibits such as the automobile driven by the appellant and pictures thereof were permitted in evidence. They might have been permissible if satisfactory evidence had been introduced to lay a foundation to show just what had happened to the automobile some two or three days prior to the accidental killing of Mrs. Waugh and evidence showing what took place when the appellant hit the government mail box post. To my mind the permitting of the jury to view the car and the photographs thereof, without specifically showing just what had taken place in the way of damages to the car in the accident some three or four days before the accidental killing and the injuries suffered in striking the mail box post, was highly prejudicial and did not in any way assist the jury in their determination of the facts sought to be placed before it.

I have examined the testimony as to the alleged confession and it appears to me that appellant was submitted to a rigid examination by the sheriff and that appellant was refused the right to consult an attorney or communicate wtih his brother before submitting to such an examination. After a careful consideration of both appellant's and Sheriff Helmer's testimony, it is hard to escape from the conclusion that the confession was not obtained voluntarily. There are earmarks which clearly indicate that the sheriff intended to obtain a confession before the appellant had had the benefit of advice from friends or counsel. I do not believe that the sheriff's conduct while holding the appellant a prisoner complied with the generally accepted law relating to the admissibility of confessions in criminal cases. In People v. Loper, 159 Cal. 6, 112 P. 720, 723, 37 L.R.A. (N.S.) 934, Ann. Cas. 1912B, 1193, the California Supreme Court said, in dealing with the admissibility of confession obtained through a similar process:

"It is a fundamental rule of criminal law that a confession may not be used against a defendant, unless the prosecution can show its free and voluntary character, that it was made without previous inducement, and that neither duress nor intimidation caused defendant to furnish such evidence against himself. People v. Miller, 135 Cal. 69, 67 P. 12. It is also true that if threats and inducements are made to a prisoner, and within a few days thereafter he makes a confession, such acknowledgment of the commission of the crime may not be introduced in evidence, unless it clearly appears that the threats and inducements had ceased to operate upon his mind to bring about his statement of his own guilt. People v. Johnson, 41 Cal. 455. * * *

"So long as the constitutional privilege of a defendant not to give evidence against himself exists, that right must be protected by adherence to the well-established rule intended to guard against undue advantage being taken of his fears, hopes, or mental or physical weakness; and while many thoughtful persons believe that those charged with crime should be compelled, either to testify or to bear an adverse presumption as the result of refusal to take the witness stand, no advocate of that change in the law, we believe, goes so far as to desire the machinery of compulsion to be applied anywhere except in the full publicity of open court. In a recent public address, speaking upon this subject, and advocating a change in the rule whereby a defendant is now enabled to refrain from testifying, Mr. Justice Sloss said: `Side by side with the limitation of the right of the accused to stand mute should go absolute prohibition of testimony or confessions obtained from persons under arrest, as the result of private questioning by officers of the law. The horrors of the "third regree" are the direct result of the rule prohibiting the prosecution from calling the accused as a witness, or basing any argument upon his failure to take the witness stand in his own behalf. Surely it is far better to question the accused in open court, where he may have the assistance of counsel and the protection of an impartial judge, than to endeavor to convict him by means of an alleged confession which may never have been made and which, if made, may have been extorted from him in ways that, if known, would throw great doubt upon its reliability.'

"In Bram v. United States, 168 U.S. 532, 18 S. Ct. 183, 187, 42 L. Ed. 568, the leading authorities upon the subject of confession are collated and discussed masterfully in the opinion of the court delivered by Mr. Justice White. In that opinion he says: `A brief consideration of the reasons which gave rise to the adoption of the fifth amendment, of the wrongs which it was intended to prevent, and of the safeguards which it was its purpose unalterably to secure, will make it clear that the generic language of the amendment was but a crystallization of the doctrine as to confessions, well settled when the amendment was adopted, and since expressed in the text-writers and expounded by the adjudications, and hence that the statements on the subject by the text-writers and adjudications but formulate the conceptions and commands of the amendment itself.' In another part of the opinion he observes that: `There can be no doubt that long prior to our independence the doctrine that one accused of crime could not be compelled to testify against himself had reached its full development in the common law, was there considered as resting on the law of nature, and was embedded in that system as one of its great and distinguishing attributes.' He also quotes with approval part of the opinion of the same court, delivered by Mr. Justice Brown in the case of Brown v. Walker, 161 U.S. 596, 16 S. Ct. 644, 646, 40 L. Ed. 819. * * *

"It is suggested that the evidence in this case was so complete without the confession of the defendant that the jury would have found him guilty, even if the confession had been entirely omitted. While this argument serves to emphasize the lack of excuse for the resort on the part of public officers to the methods of the `third degree,' it does not abate one whit the defendant's right to all of his constitutional privileges. He was entitled to stand mute, if he chose to do so, and to have no confession save a voluntary statement — one not extorted by fear nor induced by promises — introduced against him at his trial. Of this right he was deprived."

See Davis v. U.S. (C.C.A.) 32 F.2d 860, 863; State v. Johnson, 76 Utah, 84, 287 P. 909.

I believe that justice is best served by observing the rule of the common law that a confession of guilt by accused is admissible against him when, and only when, it was freely and voluntarily made without having been induced by the expectation of any promised benefit or by fear of any threatened injury. What amounts to a voluntary confession is defined clearly in Underhill Criminal Evidence (2d Ed.) par. 126:

"A confession cannot be said to be in every respect freely and voluntarily made if it has been obtained by any sort of threat or violence, promise, direct or implied, or by the exertion of any influence."

It is further said:

"Voluntary is not always used in contradistinction to compulsory. In many cases voluntary means proceeding from the spontaneous operation of the party's own mind free from influence of any extraneous disturbing cause."

Mr. Justice White, in delivering the opinion of the court in Bram v. United States, 168 U.S. 532, 18 S. Ct. 183, 187, 42 L. Ed. 568; quoted from 3 Russell on Crimes (6th Ed.) 478, and said:

"`But a confession, in order to be admissible, must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. * * * A confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted.'

"And this summary of the law is in harmony with the doctrine as expressed by other writers, although the form in which they couch its statement may be different. 1 Greenl. Ev. (15th Ed.) § 219; Whart. Cr. Ev. (9th Ed.) § 631; 2 Tayl. Ev. (9th Ed.) § 872; 1 Bish. New Cr. Proc. § 1217, par 4.

"These writers but express the result of a multitude of American and English cases, which will be found collected by the authors and editors either in the text or in notes, especially in the ninth edition of Taylor, second volume, tenth chapter, and the American notes, following page 588, where a very full reference is made to decided cases. The statement of the rule is also in entire accord with the decisions of this court on the subject. Hopt v. Utah (1883) 110 U.S. 574, 4 S. Ct. 202 [28 L. Ed. 262]; Sparf v. United States (1895) 156 U.S. 51, 55, 15 S. Ct. 273 [39 L. Ed. 343, 345]; Pierce v. United States (1896)160 U.S. 355, 16 S. Ct. 321 [40 L. Ed. 454]; and Wilson v. United States (1896) 162 U.S. 613, 16 S. Ct. 895 [40 L. Ed. 1090]."

See, also, Johnson v. State, 107 Miss. 196, 65 So. 218, 51 L.R.A. (N.S.) 1183.

I do not believe that the manner and method of securing the confession measures up to the standard or that it can be said to be a voluntary confession. I therefore believe that the court erred in admitting the confession and that the appellants right to a fair and impartial trial as provided by our Constitution was denied and that the judgment of conviction in its entirety should be set aside and the order and judgment appealed from reversed.