Pickett v. State

A witness in his own behalf, appellant testified fully before the jury as to the mistreatment he claimed to have received from the officers, as a result of which he made the confession used in evidence by the state. It follows, then, that he waived the objection he had theretofore made to the action of the court in refusing to permit him to testify to such facts in the absence of the jury and before the receipt in evidence of the alleged confession.

It appears that appellant made two confessions — one dated November 16, 1948, and the other dated November 17, 1948. Only the confession dated November 17, 1948, was introduced in evidence.

Appellant claimed in his testimony that the confession was obtained as a result of being beaten and threatened by Jake Colca, a deputy sheriff. It is admitted that Colca was present and was the person to whom the first confession was made. Leonard, the deputy sheriff who was present at the time of the making of the confession to Colca and signed same as a witness, did not deny that appellant was beaten or mistreated by Colca at that time. He appears not to have been interrogated relative thereto, either by the state or the appellant. Colca was not called as a witness and therefore did not deny the allegation of mistreatment which the appellant claimed in his testimony.

Although appellant claimed that Colca was present at the signing of the second confession, or that dated November 17, 1948, and introduced in evidence, the pre-ponderance of proof shows to the contrary.

Appellant insists that inasmuch as Colca did not dispute his claim of mistreatment, the confession is inadmissible, under the rule of construction as applied by the Supreme Court of the United States to the effect that where the undisputed evidence shows the use of physical violence, threats, and abuse upon a prisoner as a result of which a confession is made such confession is inadmissible.

We are familiar with the rule stated, but cannot bring ourselves to the conclusion that the facts bring this case within that rule, because, first, the facts, taken as a whole, show that no beating or threats occurred, as claimed by appellant, and, second, we note that the witness Spencer, a witness to the signing of the confession offred in evidence, was permitted to testify without objection:

'I talked to the defendant and he told me the same thing that is in this statement. * * *'

It appears, therefore, that the facts set forth in the confession were, by this testimony, before the jury without objection.

We remain convinced that a correct conclusion was reached originally, and the motion for rehearing is overruled.

Opinion approved by the Court.