| Ark. | Nov 15, 1887
The principal question in this case is as to the admissibility of the confession upon which the prisoner was convicted.
The defendant objected to the introduction of the confession in this case; the jury was withdrawn and the court heard the evidence that led to the confession, to determine whether it was admissible in evidence. This was the approved practice.
It seems that after a time the defendant gave evidence of breaking down. The grand jurors pressed the opportunity and exhorted him to tell the truth. He expressed a fear of personal violence at the hauds of those whom his testimony might implicate. Grand jurors promised him protection. Two of the three members of that body who testified, insisted that the protection promised was protection only from personal violence such as one citizen might give to another; and one of them said the defendant was informed that.the jury regarded it as their fiut-y to indict him, and expressed the opinion that the prisoner must have known he would be indicted ; but the same witness testifies that when they promised him protection they did not explain what kind of protection was meant; and the third witness, who was the foreman, testified that if he had been in the prisoner’s place he would have understood the promise and assurances of the grand jury to mean that he was not to be prosecuted. The defendant, at this juncture, made a statement implicating others in the offence, making an effort still to shield himself. He was then removed from the grand jury room under a guard furnished at his request to protect him from violence, to await the further direction of the grand jury, the foreman instructing the guard to allow no one access to him. In this interval, as we understand it, the prosecuting attorney sought him and assured him that if he would tell the whole truth the state would deal fairly with him. The next morning, while waiting to be called before the grand jury, G-rady, Chitwood and Taylor — ,th& witnesses who testified to his confession — were admitted by his guard to his presence. They told him that they understood he had made a statement to the grand jury about the safe robbery which was not regarded as satisfactory ; the spokesman informed him that it did not clear up some persons who were suspected, and that he ought to tell the whole truth, let the guilt rest where it might. The prisoner replied that that was just what h& was going to do, and produced a statement which he had written out on a pocket memorandum book, making th& confession which was given in evidence and read it to them. He stated that it was prepared for the grand jury,, and that he had previously made up his mind not to tell anything until he got before the grand jury, where ho could have protection. He was called at once before tho grand jury where he made the same statement. Whei* informed by them that he was to be indicted he-expressed great surprise.
The court refused to permit anything which transpired in the grand jury room to go to the jury, but admitted the statement made to the three witnesses named. Tho confession made to these witnesses is, we think, fairly traceable to the hope inspired by the assurances made by the grand jurors and prosecuting attorney. These officers, in their commendable zeal to ferret out the perp«r-trators of the crime, evidently led the prisoner to expect favor from his confession. It was the natural consequence of the course pursued that such an impression should rest upon his mind. It is true one of the witnesses testified that he was satisfied the prisoner understood all the while that he was to be indicted, but none of them testified that a hope of leniency in the prosecution was not fairly deducible from what transpired in the jury room alone ; and the foreman felt sure that no other conclusion could have been reached by the prisoner. If a doubt remained in the prisoner’s mind after the first day’s experience, it must have been dispelled by the assurance he then received from the state’s attorney. What could he have inferred from that except that a further and fuller statement would be followed by leniency, or an exemption from prosecution? The assurance that he would be dealt with fairly at the hands of the state, cannot be interpreted as merely a guarantee that he should not thereafter be cheated of his legal rights. The integrity of the state’s official, and the protection which the most wretched feels the courts will afford him, was sufficient guaranty of that favor. The prisoner must have taken this last assurance as a sanction of the hope he understood the grand jurors were holding out to him. By all the. opinions, arousing an expectation of clemency by a prosecuting officer will exclude the confession. 1 Bish. Cr. Pro , sec. 1234; Sumner v. State, 61 Miss., 256; Commonwealth v. Nott, 135 Mass., 269" date_filed="1883-06-21" court="Mass." case_name="Commonwealth v. Nott">135 Mass., 269; Owen v. State, 78 Ala., 425" date_filed="1885-12-15" court="Ala." case_name="Owen v. State">78 Ala., 425; Beggarly v. State, 8 Baxt., [Tenn.] 520; Hopt v. Utah, 110 U.S., 574" date_filed="1884-03-03" court="SCOTUS" case_name="Hopt v. People of Territory of Utah">110 U. S., 574.
It is not material whether the prosecuting officer knew the grand jury had inspired a hope which his language would inflame, or that the grand jury were informed that the officer would talk, or had done so, with the prisoner. The test is, was there a causal connection between the hope aroused and the confession ? The fact that the confession is not made to the officer or officers who generated the hope is immaterial. When the improper influence has been exerted it must be shown by the state that it has been removed before a subsequent confession is admissible. Wharton Or. Ev., sec. 650 ; 1 Bish. Cr. Pr., sec. 1239; Commonwealth v. Taylor, 5 Cush., 605; Simmons v. State, 61 Miss., 256. That was the main question determined in Love v. State, 22 Ark., sup.
Experience has shown that reliance cannot be placed upon admissions of guilt obtained by thus playing upon the hope or fear of the accused, “ for the obvious reason/’ says Judge Cooley, “that they are not made because they are true, but because, whether true or false, the accused is led to believe it is for his interest to make them,” People v. Wolcott, 51 Mich., 612" date_filed="1883-10-24" court="Mich." case_name="People v. Wolcott">51 Mich., 612.
It is in cases where the atrocity of the crime, or the gross abuse or violation of a trust, as in this case, makes the prisoner abhorrent, “ that the safeguards of the law,” says Mr. Justice Fairchild, in Love v. State, supra, “must be protected, that the just punishment of the guilty may not be a precedent or excuse for the illegal conviction of the innocent. Doubtless an adherence to such rules of law as the court below failed to observe, and as we are called upon to enforce, may sometimes screen the undeserving from merited punishment; but there is no safety for the greater portion of society, that is, the observers of the law, without preserving with strictness the integrity of legal rules that protect against perjury and wickedness. as well as against the weakness of those who are wrongfully suspected or accused of criminal acts.” The facts bearing upon the question of the admissibility of the evidence in this case are undisputed, and the court erred in its conclusion to admit the confession.
Other questions raised upon the trial have been urged by the appellant, but as they have become immaterial, or have not been argued by the attorney general, and the cause must, in any event, be remanded, we have not considered them.
Reverse and remand for a new trial.