Binns v. State

Jim Johnson, Associate Justice.

This is an appeal from a conviction for having willfully damaged a building with dynamite in violation of Section 41-4237, Ark. Stats. (1947).

The appellant asserted seven alleged errors in bis motion for a new trial. In bis brief in this Court be argues only one of these matters which is the alleged error of the Court in refusing to set aside the jury panel and to appoint new jury commissioners to select a new jury. Appellant, a Negro, contends that the panel should have been set aside and new commissioners appointed because Negroes have been systematically excluded from the office of jury commissioner for a period of many years and no member of the jury commission which selected the panel which tried appellant was a Negro. This same contention has been previously rejected in Payne v. State, 226 Ark. 910, 295 S. W. 2d 312; and we refuse to depart from the holding of that case.

Despite the fact that appellant has not argued the other matters contained in his motion for a new trial, we are duty bound to examine and consider all the grounds alleged therein. Washington v. State, 183 Ark. 667, 37 S. W. 2d 882.

We find that there is no merit in five of the six grounds which appellant has failed to argue. The remaining ground is that the court erred in permitting the State to introduce in evidence the purported confessions of appellant. After much study and research, we are convinced that these confessions were improperly admitted in evidence because such confessions were involuntary.

In a situation such as this, we must determine the issue upon the testimony which is undisputed or upon the testimony of the State’s witnesses because on controverted issues of fact the verdict of the jury precludes us from further investigation. Brown v. State, 198 Ark. 920, 132 S. W. 2d 15.

The undisputed evidence shows that the defendant was questioned almost continuously for a period of 52 hours before giving the first confession. It is also undisputed that the officers continued to interrogate defendant for an additional 5 hours during which time he made two more confessions. The defendant was arrested at 5:00 p.m. on February 16th and interrogated from that time until 9:30 p.m. on February 18th, at which time he made a written confession. As soon as he (defendant) made this confession, the Prosecuting Attorney was called in and he interrogated the defendant for an additional 5 hours and procured two additional confessions.

The question for our determination is, was the interrogation persisted in long enough to exhaust him physically and mentally and overcome his will? If so, then all of the confessions were inadmissible. Brown v. State, 198 Ark. 920, 132 S. W. 2d 15; Barnes and York v. State, 217 Ark. 244, 229 S. W. 2d 484. In Barnes and York, supra, we said:

“If the undisputed testimony showed that the confessions had been extorted . . . ‘by a continuous inquisition persisted in to the extent of exhausting him physically and mentally and overcoming his will,’ such confessions would be inadmissible.”

In Brown v. State, supra, where the defendant had been subjected to prolonged questioning on two nights, we held that it was error to admit the confession which was finally given on the second night. In this connection we quoted with approval from Spurgeon v. State, 160 Ark. 112, 254 S. W. 376, as follows:

“Of course, the officers had a right to interrogate the accused concerning his participation in the offense, but they had no right to coerce him into a confession by a continuous inquisition persisted in to the extent of exhausting him physically and mentally and overcoming his will.”

In the Brown case, as in the case at bar, it was contended that there was a jury question on the matter of duress in obtaining the confession because the officers testified that the confession was freely made. The Court said in answer to this contention:

“In this case the officers testified that the confession was, in fact, freely made; but such testimony, in view of the undisputed facts herein recited proves only that they misapprehended what it takes to constitute duress. Under the circumstances here detailed it was, in our opinion, error to have admitted that confession as it does not appear to have been freely and voluntarily made. ’ ’

What we said in the Brown case is peculiarly appropriate here for the record shows that the facts previously mentioned are undisputed and the testimony of the officers amounted to no more than conclusions because they simply testified that no force or duress was exercised, while admitting the continuous interrogation of the suspect.

The appellant testified that he had no sleep during the entire 57 hour period. This testimony might ordinarily be considered as disputed but when the officers admitted the continuous interrogation, they impliedly admitted that defendant had no sleep. No other conclusion can be drawn from these admissions.

What is the effect of prolonged questioning and lack of sleep? It has been well stated as follows:

“The most commonly used method is persistent questioning continuing hour after hour, sometimes by relays of officers. It has been known since 1500 at least that deprivation of sleep is the most effective torture and certain to produce any confession desired.” [Report of Committee on Lawless Enforcement of Law made to the Section of Criminal Law and Criminology of the American Bar Association (1930); 1 American Journal of Police Science 575, 579, 580; IV Reports of National Committee on Law Observance and Enforcement (Wickersham Commission). U. S. Government Printing Office, 1931, Lawlessness in Law Enforcement, p. 47.]

In Ashcraft v. Tennessee, 322 U. S. 143, 64 Sup. Ct. 921, 88 L. Ed. 1192, the Supreme Court of the United States held that a confession obtained at the end of 36 hours of continuous questioning was inadmissible because in violation of the due process clause of the Fourteenth Amendment of the Constitution of the United States, saying:

“We think a situation such as that here shown by uncontradicted evidence is so inherently coercive that its very existence is irreconcilable with tbe possession of mental freedom by a lone suspect against whom its full coercive force is brought to bear.”

For the error indicated, the case is reversed and remanded for a new trial, at which time the voluntariness of the confession may be considered with all other matters.

Harris, C. J., dissents. McFaddin, J., concurs.