Bohanan v. State, 92 Ga. 28

Bohanan v. State

92 Ga. 28 | Ga. | 1893

Bleckley, Chief Justice.

1. After the witness stated as a part of his testimony that he extorted the confession, there was no motion made to withdraw from the jury the confession or the testimony which the same witness had previously given concerning it. At the time this previous testimony was received, it appeared to be legal, for nothing was then or had been disclosed which could suggest that the confession was not freely and voluntarily made. On the contrary, it was shown that the accused had repeated it in the presence and hearing of another witness, thus confessing twice, once to the person who had threatened to prosecute him, and again to that pei’son and the other witness, these two being together when the confession was repeated. Is it erroneous to allow evidence to remain before the jury when no reason for excluding it appeared until after it was received, and no motion to withdraw it is . made at any time ? Must the court, *32without any request from the accused or his counsel, withdraw evidence which has been legally admitted, if subsequent testimony discloses that it was incompetent? But should this confession have been withdrawn, even on motion, because the witness said he extorted it ? We think not. The witness had previously detailed what he said and did. He detected the accused in the act, threatened to prosecute him, and rejected a bribe which the accused offered him to induce him not to prosecute. Was there any extortion in this? Surely not. There was no invitation to confess, no threat to prosecute if he did not confess, no appeal to either hope or fear to induce a confession. No confession was suggested or mentioned; no reference was made to the subject, either expressly or by implication. If any fear or hope calculated or having any tendency to prompt a confession arose in the mind of the accused, it was of his own creation. An unconditional threat to prosecute for an offence has no natural tendency to induce a confession, but rather the contrary; and the hope implied in the offer of a bribe, the offer being unsolicited, has its origin in the thoughts of him who makes the offer, and is not chargeable to him who rejects it. If a man rears a crop of hope in his own mind from seeds of his own planting, and under its influence makes a confession, this will not exclude the confession as evidence. The hope that excludes is that, and that only, which some other person kindles or excites. Some inducement must be held out by another person, tending, according to human nature and the law of human motives, either to overpower the will or seduce it, either to coerce through fear, or persuade through hope. It seems to us that the right and only construction to be put on what the witness testified as to extorting the confession is that this was a conclusion of his own mind drawn from the facts which he had detailed, the principal fact being that he had threat*33ened to prosecute. Doubtless he supposed that a threat to prosecute amounted in. law to extortion, but in this he was mistaken. Why he was not called upon to explain what he really meant does not appear, and we are unable to conjecture. Had a motion been made to withdraw the coufessi on from the jury, very likely some explanation would have been elicited.

2. There was no lack of evidence to warrant the verdict, but rather a surfeit of evidence.

Judgment affirmed.