Johnson v. State

Reed, J.,

delivered the opinion' of the court.

Appellant was convicted of murder, and sentenced to suffer capital punishment. The admission of a confession in the trial *of the case is assigned as error:

Appellant and deceased were occupying together two house-boats in the Mississippi river at Vicksburg. The body of the deceased was found floating in the river with weights fastened to it. Because of its having remained for a time in the water, it was nearly unrecognizable. Bruised places on the head indicated that the deceased had met his death by violence. Immediately appellant was arrested for the crime.

Mr. E. A. Fitzgerald, a leading citizen and newspaper man in the city of Vicksburg, obtained a confession from appellant. Mr. Fitzgerald’s testimony shows that he was present at the coroner’s inquest held that morning after the body was found. He took part in the examination before the coroner to the extent of indicating questions to be asked. After the inquest, he visited appellant in the jail. 'Late, in the evening, about seven p. m. of the same day, he went again to see appellant. The next morning lie visited appellant the third time, and then secured the confession.

The purposes which Mr. Fitzgerald had in mind when he sought to obtain a confession from appellant will be shown by the following extracts from his testimony: to conceal- about it at all. I felt like he was guilty, and I have had some training in that line and was post-office inspector, and I have gotten confessions out of people before I met Johnson; he is not the only man I have gotten a confession out of.”

“Several murders had been committed around there on the canal, and I thought it was my duty as a citizen we ought to try to ferret it out. ... I wanted to get his confession for the newspaper enterprise, and every now and then we fish somebody out of the canal that had been killed, and we never .could convict anybody or get any trace of it, and I felt I owed it, as my duty, as a citizen of Mississippi and Warren county; I had nothing against Johnson. ... I went there because I know when a man is sleepless he is at his worst point, and you can control him, and he is more ready to tell the truth and unburden himself and tell the truth; if you can get a criminal for a few nights, and you know they are restless and sleepless, you can go there and get the confession; otherwise, if I had wanted it as a newspaper article, I would have gone that afternoon, and it took me off my pins when he confessed so quick. ... I thought he was guilty, and I think the hope of salvation is held out to the worst of sinners, and if he would confess, there was hope of saving his immortal soul; and I had a little newspaper enterprise in it I will admit; I have nothing

Appellant was sick with fever during the time he was visited, and Mr. Fitzgerald knew that he had medicine to take, and was told by appellant that he could not eat anything and was suffering from malaria.

Appellant was, at the time, under fear of being lynched. He told Mr. Fitzgerald that he was afraid, and “wanted to die a' decent death.” He was told by Mr. Fitzgerald-, that the people believed that he was guilty, and that the body found was that of the deceased. Mr. Fitzgerald testified that, at the time of the conversation with appellant he did not know whether the body found was that of Elston Brewer, the deceased, and that he had no definite knowledge relative thereto until appellant’s confession. We quote from the testimony of Mr. Fitzgerald to show what statements were made by him to induce appellant to confess:

“Q. How many trips did you make to see him? A. Three. Q. What happened between you and Mr. Johnson at the jail on your first visit there? A. Well, I tried to get him to confess. Q. What did you say to him to induce him to confess? A. Nothing specially; I told him-I thought he was guilty. I heard the testimony at the coroner’s jury; and he looked listless and nervous, and I didn’t think he would have any peace until he unburdened himself of this awful crime I thought he had committed. Q. You told him also you were a Spiritualist,' and could look down in his soul and see the black crime he had committed? A. I didn’t tell him that way. I went up there that evening and said, ‘You better confess;: that boy we dug up there, these printers say, to the best, of their knowledge, it is Elston Brewer, and there is no doubt about your guilt, and you have not slept a wink; since you killed that boy, and you won’t have any peace until you confess; ’ and I asked him what church he belonged to and he had better look beyond the grave for comfort; that his only hope was salvation, and asked him what church he belonged to; and he said he didn’t have much training at all, and went to the Baptist and Methodist Church; and I told him we had some mighty good ministers in town, and if he wanted one I would get one; and he said, ‘No,’ he didn't want one then, but he would see about it later; and he said, ‘What are you, anyhow?’ and I said; ‘I am a Spiritualist, and I can look down, in your black heart and see this diabolical crime you committed at midnight the other night.’ I was hitting in high places when I said that, of course.”

Thus far the facts and circumstances connected with the making of the confession by appellant have been stated by us from the testimony of Mr. Fitzgerald. Upon one of his visits to the jail to see appellant, Mr. Fitzer-ald was attended by another prominent newspaper man of the city of Vicksburg, Mr. F. P. Cashman, city editor of the Evening Post. Mr. Cashman testified that appellant was very sick when he visited him with Mr. Fitzgerald. Continuing his testimony, Mr. Cashman said that appellant was lying on his cot, and great beads of perspiration breaking out on his forehead and his hands and all portions of his cheek, and he was tossing from one side of the cot to the other, and turning over, and sat up awhile and laid down awhile, and his sentences were disconnected, and looked like he was mentally deranged.” He further stated that Mr. Ftzgerald talked to appellant for a length of time which appeared to witness to be about an hour, and was telling appellant that “he was a liar and a murderer, and he better confess and ease his conscience.’ Mr. Cashman visited appellant next morning about 11 o’clock, shortly after the confession had been given Mr. Fitzgerald, and he testifies that he found appellant still sick, suffering with fever and in an abnormal condition.

Viewing all the facts and circumstances surrounding the securing of the confession, we do not believe that it was of such free and voluntary character as to render it admissible in this case. It is well-nigh impossible to have a fixed rule by which may be determined the amount •or degree of improper influence necessary to make a confession involuntary. It was said by Judge Handy, in the opinion of Simon v. State, 37 Miss. 288, that:

“It is a very familiar and well-established rule that a confession is not admissible in evidence, unless it is made freely and voluntarily, without restraint, and without hope of reward or fear of punishment.”

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, or any 'promise, direct or implied, or by the exertion of any influence. Underhill on Criminal evidence (2d Ed.), sec. 126. Mr. Underhill, citing the case of People v. McMahon, 15 N. Y. 384, makes the following quotation in his note on this subject:

“ ‘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 the influence of any extraneous disturbing cause.”

It has been held by this court that a confession should not be admitted if there is a reasonable doubt as to whether it was freely and voluntarily made. Concerning this, we quote from Brame & Alexander’s Mississippi Digest, p. 318:

“If, on preliminary hearing by the court, there is a reasonable doubt as to whether a confession was freely and voluntarily made, it must be excluded from the jury citing Eilis 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. And, after a confession has, on preliminary hearing by the court, been admitted to go to the jury, either .party may introduce the same evidence as was submitted to the court, and any additional evidence relative to its weight or credibility, and, if it then, or at any stage of the trial, appears that the confession was made under circumstances rendering: it incompetent,- it should be excluded — citing Ellis v. State, 65 Miss. 44, 3 So. 188, 7 Am. St. Rep. 634; Williams v. State, 72 Miss. 117, 16 So. 296; Simmons v. State, 61 Miss. 243.”

It'is necessary to look to all the surroundings of the-person making the confession in order to determine whether it is rendered inadmissible because it resulted from fear or threat or the undue influence of a person, even though one not in authority, operating upon the-mind of the person confessing. Even the acts of third persons may amount to a threat excluding confession,, .though no objectionable words are spoken. Bishop’s New Criminal Procedure, secs. 1237, 1238. Ammons v. State (sweat box case), 80 Miss. 592, 32 So. 9, 18, L. R. A. (N. S.) 768, 92 Am. St. Rep. 607.

In the case at bar, to the surrounding circumstances-must be added the vivid expressions and denunciations, made by the person to whom the confession was given. Appellant was friendless and a stranger in the city. He was charged with the gravest offense known to the law and imprisoned -therefor. He was ill and in a nervous and weak physical condition. He was under fear of mob violence. In this condition he was visited three-times -within twenty-four hours by a strong man, one who was experienced in obtaining confessions, and who-visited him only to secure his confession. The very words us.ed in the effort to obtain the confession was-enough, under the circumstances, to put appellant, already sick and excited, in nervous dread. - We cannot, see that appellant was unaffected by all these things. It does not appear that the confession was from the-“spontaneous operation” of appellant’s own mind. It was not free from extraneous causes and influences. It. was not free of constraint.

We do not impugn the motives of Mr. Fitzgerald in the matter. He is shown to be a zealous citizen. His very zealousness, however led to a course of conduct resulting in an influence, the exertion of which on the mind of appellant was sufficient to render his confession not free, and not voluntary.

The influence flowing from Mr. Fitzgerald’s words cannot be relieved of objection by the claim that they only appealed to the spiritual hopes or fears of appellant; for a consideration of all he said to appellant, in connection with surrounding circumstances, will show that there was more than spiritual influence in this case. By “spiritual,” as used to define hopes and fears which may be held out to one charged with a crime when a confession is sought, we understand to mean that which pertains to the soul or higher endowments of the mind in its relation to the Spirit of God — the Holy Spirit — and that which pertains to our holy religion. The spiritual nature of a man would be his higher self, not the carnal. We understand from the facts in this case that, when Mr. Fitzgerald claimed he was a Spiritualist, he was not meaning that he was one who was spiritual or spiritually minded in the sense we have just given; but on the other hand, he was claiming.to have some power through intercourse with the spirit world — the realm of the supernatural — to have the hidden power of occultism, or, as a spiritual medium, to divine the very thoughts of the accused. A man ill and nervous could be thrown into a serious physical fear and constraint, even though from superstition, • which is a fear of that which is unknown or mysterious, by the intense statement' of one who claimed he was a spiritualist — that is, one who holds communications with departed and disembodied spirits — and said that he could see into his black heart and detect guilt.

We do not believe that appellant has been given the fair trial guaranteed to him by our fundamental laws, free from the admission and influence of incompetent tes"timony. In this consideration, we are dealing only with the action of the trial court in refusing and failing to exclude the confession made by appellant to Mr. Fitzgerald. We conclude that it was shown during the trial of this case that the confession was made under such circumstances as to render it incompetent as evidence, and "that it therefore should have been excluded by the court.

For the error of the court in not doing so, this case is reversed and remanded.

Reversed and remanded.