Omohundro v. Commonwealth , 138 Va. 854 ( 1924 )

Sims, P.,

after making the foregoing statement, delivered the following opinion of the court:

All of the questions which can be considered as presented by the assignments of error will be passed upon in their order as stated below.

1. Did the trial court err in overruling the motion of the accused to exclude the testimony for the Commonwealth showing the confession of guilt of the accused, on the ground that the confession was involuntary, being extorted by threat or fear of bodily harm to the accused?

The question must be answered in the negative.

It is true that, in order to render it admissible in evidence, the burden rested upon the Commonwealth to show that the confession in question was voluntary; but the decision of that question of fact was for the trial judge, upon consideration of all of the evidence on the subject. 1 Bish. New Cr. Proc. (4th ed.) section 989. “* * as often said, the real question in every case is whether or not the confessing mind was influenced in a way to create doubt of the truth of the confession.” (Idem. section 1224.) To the same effect see Smith’s Case, 10 Gratt. (51 Va.) 734. “Over this sort of question, the court has a wide discretion” (1 Bish. New Cr. Proc. section 1222); and its decision by the trial judge “.is not ordinarily to be disturbed-on review.” (Idem. section 1220.)

If the confession, says Mr. Bishop, is “an involuntary one, uttered to bring temporal good or avert temporal evil, even where the anticipated benefit is small (it) will be rejected.” 1 Bish. New Cr. Proc. section 1223 (2). See to same effect Bram v. U. S., 168 U. S. 532, 18 Sup. Ct. 183, 42 L. Ed. 568.

In cases which involve, as the motive of the confession, the question of the existence of an anticipated benefit, it is material to enquire whether the person to whom the confession is made and who offers or holds out the benefit, or in whose behalf it is offered or held out, or from whom it is expected, is “one in authority,” for it is reasonable to infer that a prisoner’s expectation of favor may be more confidently excited by a promise thereof from “one in authority,” than by a promise from some one without authority {{. e., ability or power) to perform the promise. And it is uniformly held in such cases, where the confession is made to the prosecutor, that it is made to “one in authority.” Shifflet’s Case, 14 Gratt. (55 Va.) 652, 660; Smith’s Case, 10 Gratt. (51 Va.) 734, 740; 1 Bish. New Cr. Proc. (4th ed.) section 1233 (3); 7 A. L. R. note page 420, et seq.

In the instant ease the confession in question was made to the attorney, vice-president and' superintendent — the representatives of the prosecutor — having the matter of the examination of the accused in charge, and, hence, was, in legal effect, made to the prosecutor, and so was made to “one in authority.” However, we regard the circumstance that the confession was made to such a person as immaterial in the instant case, as, according to all of the evidence, the confession was not induced by any anticipated benefit whatever. The sole inquiry, upon the subject under consideration, is whether there was sufficient evidence to sustain the decision of the trial judge finding the fact that the confession was voluntary, and was not involuntary, because of its having been extorted by the duress of some threat or fear of bodily harm to the accused from the persons to whom he made the confession in question, irrespective of the authority of the prosecutor, of whom these persons were the representatives. 1 Bish. New Cr. Proc. supra, section 1237; Bram v. U. S., supra, 168 U. S. 532, 18 Sup. Ct. 183, .42 L. Ed. 568.

That- is to say, as we have seen above, the authorities are in accord in the holding, which is, in substance, that, upon review on appeal, the aforesaid finding of fact of the trial- judge is entitled to the same weight and effect as is given to a finding of fact by a jury.

The evidence on the subject under consideration is, so far as deemed material, set out in the statement preceding this opinion; and it is deemed sufficient here to say that it was heard ore tenus by the judge, the credibility of the witnesses was for him to decide upon, and there was amply sufficient evidence in the testimony for the Commonwealth to sustain the aforesaid finding of fact of the trial judge, that the confession in question was voluntary, and not involuntary, because extorted by threat or fear of bodily harm to the accused.

The fact that artifice was employed to obtain the presence of the accused at the place at which he made the confession is immaterial. As said in 1 Bish. New Cr. Proc., supra, section 1226 (1):■ “Artifice employed in obtaining a confession does not impair its truthfulness, consequently does not exclude it.”

2. Was there sufficient evidence before the jury to support their finding that the accused at the time he received the stolen property knew it to be stolen?

The question must be answered in the affirmative.

It is earnestly argued in behalf of the accused that there was no evidence before the jury that Layton communicated the fact to the accused that the property was stolen. It is true that there was no evidence that there was any such express communication. But the circumstances testified to by Layton were such that, if Layton is to be believed, the conclusion is inescapable that the accused knew that the property was stolen by Layton, without the need of any express communication from Layton on the subject. According to Layton’s testimony, the theft was first suggested by the accused and was carried into effect in pursuance of the request of the accused; and the method which was pursued by the accused in getting possession of, and in paying Layton the price, and the grossly inadequate price, for the property, was such as admits of no other reasonable conclusion than that the accused, from the inception to the conclusion of the transaction, knew the property to be stolen. And the credibility of Layton’s testimony was for the jury. Besides, there was the confession of the accused which, in substance, admitted that the testimony of Layton was true.

3. As the value of the glass received by the accused at no one time amounted to the sum of $50.00, was there sufficient evidence to support the finding of the jury, which was to the effect that the receipts of glass by the accused from Layton was a continuous transaction, done in pursuance of a single impulse of the accused and in execution of a general fraudulent scheme between the accused and Layton, and that the value of all the glass thus received by the accused pursuant to said single impulse and in execution of said general fraudulent scheme amounted to the sum of $50.00 or more, so that the accused was guilty of grand larceny?

The question must be answered in the affirmative.

Upon this question, too, the testimony of Layton concludes against the accused the fact in question. It is true that Layton testifies that in the beginning the accused would specifically designate the number of pieces of glass to be put on his truck on the several occasions of the delivery of the glass to the accused, but Layton also testified that he sometimes put the extra pieces of glass on the truck of the accused without being specifically requested by the accused to do so at the time; that this delivery of glass to the accused by the witness from time to time was made in pursuance of a previous general request from the accused that this be done; and that the accused paid the witness, Layton, for such glass, just as he did for that delivered on the specific request of the accused aforesaid. In view of the long period during which this course of dealing continued and the number of the transactions involved in which it can but be reasonably inferred from the testimony of Layton the deliveries in pursuance of said general request or scheme were made, such testimony amply supported the verdict of the jury upon the aforesaid finding of fact in question.

The questions above disposed of are all of the material questions which are presented for our decision by the assignments of error upon the record before us. There are certain assignments of error to the action of the trial court in admitting certain testimony objected to on behalf of the accused, as appears from the general bill of exceptions which certifies all of the evidence; but there is no separate bill or certificate of exceptions before us showing the rulings complained of in such assignments of error. It is settled that the record before us is not sufficient to bring up such rulings, or any of them, for review. Myers v. Com’th, 132 Va. 746, 757, 111 S. E. 463, and cases there referred to.

The case must be affirmed.

Affirmed,