142 So. 19 | Miss. | 1932
Lead Opinion
Two errors appear on the record of the trial of this case. The first was the erroneous admission of evidence that appellant entered a plea of guilty in his preliminary or committal trial, when the facts show that the said plea or confession was not voluntary in that measure required by law; and, second, in the argument by the district attorney wherein he testified in the guise of argument to the effect that appellant's confederates had confessed to appellant's connection with the crime, when there was otherwise no such testimony before the jury. Although the first error is palpable, and the district attorney is censurable for the second, we are constrained to the conclusion that on this entire record the verdict and sentence cannot be reversed and set aside, though the errors aforesaid are present; for, upon a careful scrutiny of the evidence in this case, and of every detail thereof, we are of the opinion that the competent evidence so clearly discloses the guilt of appellant, and so completely excludes any other reasonable hypothesis, that no impartial jury, duly mindful of the obligations of their oaths, could fail to convict. House v. State,
Before this court will reverse a cause, it must be satisfied of two facts — namely, that error in favor of appellee was committed in the trial; and, second, that the error was prejudicial to the appellant. Calicoat v. State,
Affirmed.
Dissenting Opinion
I am unable to concur in the opinion of the majority. Reluctant as I am to dissent on account of the possibility of the defendant and others indicted with him being connected with organized criminal agencies, I do not think that we can overlook the errors mentioned in the majority opinion without denying the fair trial by an impartial jury guaranteed to all persons accused of crime under section 26 of the Constitution. A fair trial by jury, I think, means a trial on competent evidence, fairly conducted, in which all the rights of the defendant are recognized and safeguarded.
In my opinion the testimony offered by the defendant, if believed, would justify an acquittal; while I unhesitatingly say that I would affirm the conviction but for the two errors mentioned — that is, the improper introduction of the plea of guilty at the preliminary trial, and the argument of the district attorney. But the force of a confession by the defendant himself is of such weight — so conclusive to the ordinary mind — that I feel sure that it contributed to the conviction, and perhaps would of itself have caused a conviction. It is conceded that it was unlawfully admitted in evidence. The evidence for the state, independent of this confession, does not connect the appellant with the robbery itself, but tends to prove that he was an accessory before the fact. The proof of the state upon this proposition of accessory before the fact is strong and convincing, but not necessarily conclusive. *448
While the defendant's statements and conduct at the time of the arrest were inconsistent with his theory produced on the trial, his statement at such time was not inconsistent with the theory that he was an accessory after the fact — a different offense from that for which he was indicted, and of which he was convicted.
It is never safe for this court, in a case of conflicting evidence, to say what the jury would believe. The value of a jury trial, and the very purpose of it, is to have questions of fact, and of guilt, in criminal cases decided by the common sense of the common man, guided by the instructions of the judge as to the law, and limited by the evidence permitted to go to the jury.
It appears to me that, under our decisions, it cannot be held harmless error to introduce a confession where there is evidence by living witnesses which, if believed, would warrant an acquittal. Of course, the evidence is for the jury, and for the court to deprive the defendant of a jury trial limited to the legal evidence would endanger the safeguard of the bill of rights. Confessions are inadmissible for any purpose, when made under the influence of a sufficient threat or sufficient promise. Peter v. State, 4 Smedes M. 31, 1 Mor. St. Cas. 249; Jordan v. State,
Where the officer in charge of the prisoner informed the latter that it might go easier with him if he told all *449 about it, and that if he did the shooting he had better say so, and the accused confessed, but the confession thus extracted by hope inspired by inducement is not free and voluntary, it is inadmissible. Harvey v. State (Miss.), 20 So. 837.
A confession to an officer having custody of the accused, after a statement by the latter to the former to the effect that he would tell the officer all about the crime if he would help him out, and the officer promised to do so, cannot be admitted in evidence, because not made freely and voluntarily. Mackmasters v. State,
What constitutes a free and voluntary confession is shown in the case of Whip v. State,
While the witnesses for the defendant, who were jointly indicted with the appellant, were testifying, one of them stated that the district attorney offered to make it light on him if he would implicate Comings, but that he declined to do so. The witness was vigorously cross-examined on this point, but not contradicted by evidence; and counsel for the defendant evidently was referring to this testimony in the argument; and the district attorney, in replying to this argument, in closing the case for the state, when he made the statement, said: "Gentlemen *450 of the jury, I have been your district attorney for three years, and in this case my motives have been impugned for the first time, but I'm going to tell this thing just as it is. Those two boys, Stovers and Winters, confessed to this crime to the officers and implicated Comings, and said he furnished the brains for the job." This argument was objected to immediately, and motion made to discharge the jury and enter a mistrial, to which the court responded, "The jury remembers the evidence," and overruled the motion for a mistrial. The district attorney then said: "Yes, I am going to tell it just like it was. They confessed and implicated Comings up to the time they were seen by this Greenville lawyer" (referring to Ben Wilkes, counsel for defendant). To this remark, counsel for the defendant again objected, but before the court ruled on the objection the district attorney said: "`Oh yes, you vent your spleen on me, but I am going to tell it just like it is, regardless of how many lawyers come from Vicksburg or Greenville.' Whereupon, the audience began to clap and applaud. The court reprimanded the audience, but did not caution the jury not to be influenced by this applause; and the defendant again moved for a mistrial, which motion was again overruled." This argument made in closing the case is assigned as error. The state had sought to prove by one witness that Winters or Stovers, in their confession shortly after their arrest to the Memphis officers and sheriff of the county, that they had said that Comings was implicated in it. Objection was made, and the court excluded this testimony, and there was no evidence in the record to sustain the attorney's statement of fact that Winters and Stover had said that Comings was implicated, and furnished the brains for the job. The language of the district attorney that he was "going to tell the thing just as it was," then stating that the two boys, Stover and Winters, confessed to this crime to the officers, and implicated Comings, *451 saying that he furnished the brains for the job, was a statement of a fact not in evidence, and which could not have been admitted in evidence unless made in the presence and hearing of Comings and undenied by him, which is not the case here.
Our court has uniformly condemned the statement of facts not in evidence by attorneys in their arguments. We have given attorneys as wide latitude as necessary; but we have never permitted them to state facts outside of the evidence of a hurtful or damaging nature to the rights of the defendant. It is difficult to see how any more damaging statement could have been made. It not only stated what purported to be facts that were damaging to Comings, as affirmative evidence, but the statement also practically destroyed the effect of the testimony of Winters and Stover in behalf of Comings. Winters and Stover were admittedly the principals in the robbery. They pleaded guilty, but testified that Comings had nothing to do with the robbery, and knew nothing of it until it was completed. It therefore contradicts the evidence of these vital witnesses for Comings. Objection was made in the manner required by law, and the motion should have been sustained to discharge the jury. The damage of such a statement, under the situation which then existed at the trial, could not be removed in any other way. It may be all right to censure the attorney, as stated in the majority opinion, but censuring the attorney does not cure the damage that his statement did to the appellant's rights. In the early case of Perkins v. Guy,
In Martin v. State,
In Harwell v. State,
In the course of the opinion, we said: "Does the argument avoid the conviction as to Harwell? Harwell testified in his own behalf, but he did not introduce his codefendant, Payne, and, indeed, could not introduce Payne, or force him to testify as a witness, any more than the state could introduce him and force him to testify. In other words, both the state and Harwell were equally powerless to use the testimony of Payne, unless Payne consented. It would appear from the argument that at the close of the testimony for the state the defendants and their counsel retired to consider what evidence would be put up for the defendants. We do not think any *453 comment should be made on this fact before the jury. It is a sacred right, accorded to all defendants by the Constitution, to be defended by counsel and to confer with such counsel with reference to their causes. It was improper for the district attorney to seek to draw a deduction, and to state before the jury what in his opinion occurred when this conference was held." And the court reversed the case, concluding the opinion in the following language: "In matters of argument, counsel necessarily must have a wide latitude. His illustrations may be as varied as the resources of his genius; his argumentation as profound as learning and logic can make it. He may give wing to his wit and play to his imagination, so long as he deals with the evidence in the case and the deductions to be drawn from the testimony; but he should never allow himself to imagine facts not in evidence, nor allow his wit to wing him out of the record."
We have many cases which have been reversed because of the statement, as facts, of matter not found in the record. See Martin v. State,
I think that the appellant in this case did not secure a fair trial under the facts contained in this record. Every criminal, regardless of guilt, or the character of the crime with which he is charged, or of which in fact he may be guilty, is entitled to a fair trial. In Fisher v. State,
Can it be said that the legal rights of the accused are safeguarded and respected, when such damaging evidence, as a plea of guilty, is unlawfully admitted, and where damaging statements of fact are made by counsel in argument, which are not contained in the record, or supported by any inference drawn from the record? I think not. To affirm this case is to deny appellant the benefit of a trial by jury on competent evidence.