Brown v. State, 55 So. 961

55 So. 961 | Miss. | 1911

McWillie, Special Judge,

delivered the opinion of the court.

The appellant was indicted for the murder of Alonzo Addison, and, his previous conviction for manslaughter having been reversed (54 South. 305), he was again tried and convicted of the same offense, and from this second conviction the present appeal is prosecuted.

On the second trial the defense offered to prove that Henry Brown, a brother of the accused, who had never been indicted, stated to the sheriff and chancery clerk of the county that his brother had suffered long enough about the matter, that he was the man who slew the deceased, and that his brother was not present and had .nothing to do with it in any way; that in pursuance of this confession he was taken in custody by the sheriff and held a prisoner in the county jail for several months; that his confession and incarceration' took place during the pendency of the former appeal herein; that before the reversal of judgment on that appeal, the grand jury having investigated the matter and failed to find an indictment against him, ITenfy Brown was discharged from custody and was absent without the procurement of the accused and his counsel, and his whereabouts were unknown to him and them, process for him as a witness for the accused having been returned "not found.’* On the objection of the state the court refused to admit the evidence, and its action in so doing is assigned for error.

It is well settled that testimony going to show confessions and admissions on the part of third persons made out of court is not admissible in exculpation of those on tria], for crime. It is mere hearsay, and is excluded for this reason, although other reasons doubtless exist in the uncertainty to which it would subject all criminal proceedings. The following authorities clearly support this view: Snow v. State, 54 Ala. 138; Snow v. State, 58 Ala. 372; West v. State, 76 Ala. 98; Owensby v. State, 82 Ala. 63, 2 South. 764; Welsh v. State, 96 Ala. 92, 11 South. 450; Lyon v. State, 22 Ga. 399; Moughon v. State, 57 Ga. 102; Davis v. Commonwealth, 95 Ky. 19, 23 S. W. 585, 15 Ky. Law Rep. 396, 44 Am. St. Rep. 201; State v. West, 45 La. Ann. 928, 13 South. 173; State v. Young, 107 La. 618, 31 South. 993; State v. Evans, 55 Mo. 460; State v. Duncan, 116 Mo. 288, 22 S. W. 699; State v. Hack, 118 Mo. 92, 98, 99, 23 S. W. 1089; Greenfield v. People, 85 N. Y. 75, 86, 39 Am. Rep. 636; Id., 23 Hun (N. Y.) 454; State v. White, 68 N. C. 158; State v. Gee, 92 N. C. 756; State v. Fletcher, 24 Or. 295, 33 Pac. 575; Peck v. State, 86 Tenn. 267, 6 S. W. 389; Rhea v. State, 10 Yerg. (Tenn.) 258; Horton v. State (Tex. Cr. App.), 24 S. W. 28; Bowen v. State, 3 Tex. App. 623; United States v. McMahon, 4 Cranch C. C. 573, Fed. Cas. No. 15,699; United States v. Miller, 4 Cranch C. C. 104, Fed. Cas. No. 15,773.

Wigmore, in his learned work on Evidence, while admitting that the weight of authority sustains the rule as stated, condemns it as unsound and barbarous. 2 Wig-more, section 1476. In this he finds no support in the other text-writers on the subject, nor in the legal encyclopedists, who perhaps had greater deference for the opinions of those learned judges who, daily witnessing the application of the law, refused to sacrifice its wholesome principles to untried theory. Best on Ev. (3d Am. Ed.), p. 73; 2 Rice, Cr. Ev., p. 136, section 87; Wharton, Cr. Ev. (9th Ed.), p. 176, section 225; 12 Cyc., p. 434. The learned author above named criticises as “curious” and suggesting a “fantastic suspicion” the following' language employed by the supreme court of Georgia in the case of Lyon v. State, supra: “All one defendant would have to do would be to admit that his guilty accomplice was innocent and that he himself had perpetrated the crime, absent himself so as to enable the party on his trial to have the benefit of his admission, and, after his acquittal, 'appear, demand his trial, and prove by the evidence of the acquitted party that he was in fact the guilty person.”

We are unable to concur in the author’s estimate of the above reasoning. It commends itself to this court as entirely sound, and, in view of'the action of the grand jury in discrediting the confession and refusing to return an indictment against the declarant on the strength of it, we have little doubt that the case in hand itself affords an illustration of such attempts to bring about a miscarriage of justice. The rule excluding such confessions itself suggests the reason why they have not been more frequently resorted to in behalf of the guilty. The confession in question was made out of court, was not supported by the oath of the party confessing, and the party was never subjected to cross-examination, which might very quickly have disclosed the falsity of the confession and the motive that prompted it. The law, in determining what is hearsay, does not admit what a witness states some other person told him, any more that it admits what still another person may have imparted to the one next in line of communication. It is all hearsay; and no just exception can be made because the party confessing has put himself in a position of some hazard. Many motives, apart from the love of truth and justice, induce men to assume the gravest risks. Among the strongest of these is family affection, and it is observable that in this case the property against which the trespass was directed was that of Henry Brown and not his brother, the accused, and that in the confession proposed to be proved Henry Brown, while claiming to be the culprit, stated that his brother “had suffered long-enough about the matter.” The extreme case of a confession on the gallows by one claiming to be the true offender, employed by Wigmore to illustrate his view, affords no ground for the relaxation of 'the rule; for the experience assuring us that the last breath of men not wholly bad is sometimes employed in the asservation of a falsehood justifies the rejection of the hearsay statements of a malefactor who, having no longer any concern as to his own'fate, may wish to serve a pal, a kinsman, or a friend. Even, dying declarations, which are restricted to trials where the declarant was the victim of a homicide, although they derive additional solemnity from the fact of approaching death, are admitted really for necessity, and in order to reach those manslayers who perpetrate their crimes when there are no other eyewitnesses.

While the question is one of admissibility of evidence, rather than of its probative force, it might be remarked, as showing the caution with which all confessions are received, that the confession of the accused himself is not admissible in the absence of evidence establishing the corpus delicti. It is worthy of note in this case that, although Henry Brown had been present at the previous trial of his brother, he remained wholly silent as to his authorship of the crime, and that his confession was not made until the state had disclosed all of its evidence and the trial resulted in a verdict of manslaughter, on which his brother was sentenced to imprisonment for the short term of two years. The hazard he assumed was not, therefore, one of very great gravity, especially as his running away on being released goes strongly to show that, apart from facing a jury in his brother’s behalf, he did not intend to incur any decided risk, and was ready to recant his confession as soon as it had served its purpose or exposed him to any great peril. This much is said in answer to the suggestion that only an imperative sense of guilt could have moved him to brave the great dangers that attended his confession, and as going to show that the supposed harshness of the rule may afford no reason for not adhering to it and excluding hearsay evidence as inadmissible.

It is assigned 'for error that the court below excluded the following question, addressed on cross-examination to Yestor Addison, one of the two eyewitnesses of the tragedy and brother to the deceased: “Wasn’t there a crowd of men there, B. Harris and several others, that Mr. McNees got together there, and told them they would have to hold the inquest, and you were right there, and they couldn’t get any testimony about who did the shooting, and found that he came to his death by an unknown hand?” The purpose of this question was, of course, to discredit the witness, who had identified the accused as the slayer when seen by moonlight only a few feet distant. The witness had already testified that he paid no attention to the inquest, and it will be observed that the question involves no inquiry as to whether he testified differently, or at all, at the inquest, or was called on to testify at the same, and refused or evaded doing so, but merely that his attitude on the night of the killing was a negative one as to the identification of the accused. While he contradicted the several witnesses who testified that he in terms denied on the night of the killing that he was aware of the identity of the slayer, it was unquestionable on the evidence that he did not that night reveal who had committed the crime, unless he informed the deputy sheriff, who-arrested the accused on the same night. This deputy, after he had testified that he made the arrest, was asked by the prosecution what conversation he had with the witness Vestor Addison on that night, when the court excluded the question,on the objection of the defense, and the case went to the jury as if the accused had made no révelation that night as to the identity of the slayer. As thus viewed, the question in relation to the inquest could have evoked no other evidence favorable to the accused than such as would have been at most merely cumulative, and its exclusion does not constitute reversible error. Affirmed.