Frank v. State

2 Morr. St. Cas. 1474 | Miss. | 1872

Handt, J.:

The first ground of error assigned is the overruling the motion for a new trial.

Upon this several points of objection are urged to the action of the court below, which will be considered in the order in which they are presented in the argument of the counsel for the plaintiff in error.

1. It is insisted that the court below erred in overruling the prisoner’s objection to the testimony of Austin Morgan, and his motion to exclude that witness’ testimony.

The ground of that motion was, that the confession of the prisoner, testified to by the witness Morgan, was not freely and voluntarily made, because it appeared, from the testimony of that witness, that, at the time of the confession of the prisoner to the witness, and in the hearing of the prisoner, another negro slave was being whipped, “in relation to matters connected with the offense with which the prisoner was charged.”

What was the particular cause of the whipping of the other slave, or whether it was because ho was charged or suspected of a participation in the same offense charged against th« prisoner, does not appear. For aught that appears, it might have been for resistance or other unlawful conduct of the slave. But it does not appear that it was done for the purpose of obtaining confessions from him, or that it was on account of the very same offense charged against the prisoner in this case. As the matter is stated in the bill of exceptions, it is impossible to infer that that whipping could, with any reasonable probability, have operated on the mind of the prisoner to cause him to make an untrue confession of his own guilt in the matter charged against him. No threat or coercion whatever was used towards him; and if the treatment of the other slave could, under any circumstances, have the effect to destroy the force of the prisoner’s confession against himself, it would have to appear that the circumstances were such as to put the prisoner in such terror on his own account as plainly to destroy his free volition, and bring his confessions under the rule of illegal coercion. No such circumstances appear here, and we thinlc that the objection and motion were properly overruled.

The second ground of error is, the refusal of the first, second, and third instructions asked in behalf of the prisoner.

The first instruction is, in substance, that a confession, to warrant a conviction, must be free and voluntary, and made under no inducements whatever; and if any inducements were held out to the prisoner to confess, his confession will not warrant a conviction.

This is certainly much broader than the well-recognized rule upon the subject. Anything reasonably tending to hold out the hope or promise of reward or benefit for confession, or of punishment or injury for the failure to confess, is in law an unwarrantable inducement to confess, which renders the confession so obtained incompetent evidence. But there may be other “inducements” held out to a party, which are not within this rule. An appeal to the character or circumstances of a party — to his family connection and situation in life — to the claims of justice of others, whose rights or-safety were involved in his declaring the truth — to his responsibility to a tribunal above all earthly courts for his falsification or suppression of the truth — these and others might very naturally be an “ inducement” to a party to make a confession. Tet a confession so induced would not necessarily be incompetent; for the inducement would not be illegal. The instruction was, therefore, in its terms erroneous. But it was properly refused also for another reason. There was no evidence to show that the confession of the prisoner was induced by illegal means; and hence the instruction, if correct in its terms, would merely have stated an abstract proposition, which was irrelevant to the case as presented by the evidence.

The third error assigned is, the refusal of the second' instruction, asked in behalf of the prisoner; which was, in substance, that the finding of the articles stolen, according to the directions of the prisoner in his confession, is not presumptive evidence of' his guilt of the crime of burglary.

It appears by the evidence that the prisoner had confessed circumstantially that he broke and entered the dwelling-house of the prosecutor, and took therefrom certain articles of property, and he gave directions where the articles had been placed, and that they were in a carpet-bag at that place; and upon search being immediately made, that the articles stolen were found in the carpet-bag, and at the place stated by him. It also further appears, that his manner of entering the house, as confessed by him, was corroborated by facts stated by the witness tending strongly to show that his confession, as to the mode of entering the house, was true.

The taking of the goods from the house was a part of the act of entering the house, and intimately connected with it. The confession as to the taking of the goods, and their place of deposit, was, therefore, a confession of a material part of the crime; and if the goods were found upon such, in the place and condition stated by him in his confession, this certainly tended strongly to show that the confession, both as to entering the house and taking the goods, was true. Hence, it was presumptive' evidence of his guilt of both of the material acts confessed by him.

The objections to the refusal of the third instruction asked in behalf of the prisoner, are untenable, for the reasons above stated upon the first instruction.

The next error assigned is, the granting of the first instruction asked in behalf of the state, to the following effect: “ That the raising of a window-sash, which was the only fastening or security to the window, and thereby entering a dwelling-house in the night-time, by a slave, some white person being in the house at the time, with intent to steal, is burglary.”

The only question made on this instruction is, whether the raising of a window-sash, which was down and closed, and which was the only fastening to the window, and the entry of the party through the same into the house, is such a breaking in law as will constitute burglary. And it is well settled that it is.¹ State v. Boon, 13 Iredell, 244; Rex v. Russell, R. & M., 377; 2 Whart. Am. Crim. Law, § 1541, 5th ed.

Again, it is assigned for error that the court improperly refused the motion for a new trial, which was made on the ground of newly-discovered evidence.

This newly-discovered evidence is shown by the affidavit of the witness Coffee to be, in substance, that the prisoner had made a confession to other persons to the same effect as that made by him to the witness Morgan, whose testimony was the cause of his conviction; that the confession to Morgan was made shortly after that to the other persons; and that, in obtaining the first confession, “ inchícements and %>ersuasions were used” by the person obtaining it, “to bim to confess,” &c.

This affidavit does not show what was the nature of the “inducements and persuasions” held out to the prisoner to confess; and it was therefore insufficient to show that the confession was obtained by such means as to l’ender it incompetent evidence, as is above shown.

But the affidavit is palpably insufficient in another respect. Although it states, in terms, that the affiant did not believe that the fact of the first confession ©f the prisoner was known to him, or to his counsel, at the time of the trial, yet the affidavit shows that it must have been known to the prisoner; for it was Ms own confession. There could not, therefore, be any pretense that it was newly-discovered evidence.

The last ground of error is the overruling of the motion in the arrest of judgment. This motion was made on the ground that one of the jurors who tried the case and found the verdict was neither a freeholder nor householder, and hence that the jury was illegally constituted.

But it is settled that an objection of this sort comes too late after the verdict; and that it is not of such a nature as to vitiate, the verdict. Williams v. The State, 37 Miss. R., 409. But if this were otherwise, it is clearly no ground for a motion in arrest of judgment, which must be founded on something on the face of the record.

Upon consideration of the whole case, we perceive nothing to justify a reversal of the judgment, and it must be affirmed.

The counsel for the prisoner ashed for a re-argument, as to so much of the opinion as decides that the objection to the juror Ilardgrove came too late; and to sustain this view he cited and relied upon the following authorities: Lewis v. The State, 9 S. & M., 115; Whart. Crim. Law, 860; Dawson v. The People, 13 Wend., 351; Williams v. The State, 32 Miss. R., 389; McGuire v. The State, 37 Id., 369; Cotton v. The State, 31 Id., 504; Nelms v. The State, 13 S. & M., 500; Sam v. The State, 31 Miss. R., 480; Sellers v. The People, 3 Scam., 416; Busch v. The State, 19 Ohio R., 198; Romaine v. The State, 7 Ind. R., 67; Keener v. The State, 18 Ga. R., 216; Jeffries v. Randall, 14 Mass. R., 206; Graham & Waterman on New Trials, 19-40; but a re-argument was denied.

1 Rex v. Hall, R. & R., 355; Rex v. Haynes, ib., 450; 1 Russell on Cr., 787; Rex v. Russell, R. & M., 377; Rex v. Hall, East T., 1818; Russ. & Ry., 355; Rex v. Haines & Harrison, East T., 1821; Russ. & Ry., 451; 2 Archbold Cr. Pr. & Pl., 330 et seq., notes; 1 Hawk., c. 38, § 6; Rex v. Hymans, 7 C. & P., 441; Rex v. Hall, Russ. & Ry., 355; ib., 451; 1 Wheeler Cr. Cases, 374.