*1
669
weight
according
justify
testimony
a rea
acter and
as would
of wit-
drawing
person
Chapman,
equip-
the inference
ness
the door to
sonable
sought
properly
is
to be sustained. ment was not
fact
secured.
If the
evidence is such that
state
If
“a
the court’s reference to
conflict, nevertheless,
presents
if
it
no
joint operation”
ruling
be considered a
conflicting
reasonable minds
draw
plaintiff
to the effect that
contrary
same
inferences from the
joint enterprise,
recover
because of
we
requiring
verdicts,
it
evidence
different
disagree. A succinct
statement of
jury
is the
is for the
to determine which
law, supported by the text writers and
purpose of
correct
inference. For the
cases, is
contained Restatement of the
accept
opinion,
we must
as true
Torts,
591,
a, p.
Law of
Comment
1274:
§
plain
credible evidence adduced
“ * * *
plaintiff
injured
If the
Murray
Pipeline
tiff Wells.
v. Pasotex
negligence
of a defendant
Co.,
1947,
5;
5
161 F.2d
Cir.
Baltimore
engaged
joint
whom is
in a
Postom, 1949, U.S.App.
& O.
v.Co.
85
R.
enterprise,
the fact that
so
53;
Grey
207,
D.C.
177 F.2d
Atlantic
engaged
recovery.”
does not bar his
Crowder,
Corp.
1949,
hound
v.
177
5 Cir.
Hicks, 1951,
See also Rollinson v.
233 N.
633; Audirsch,
F.2d
et al.
Texas &
v.
99,
190, 195;
Am.Jur.,
C.
63 S.E.2d
629;
Ry. Co,
1952,
Pac.
Cir.
195 F.2d
238, p.
recognizes
925.
§
Florida also
Morgan
Sturdivant,
v.
Swift & Co.
&
Arline,
such to
rule.
al. v.
et
1954,
115,
214 F.2d
49 A.L.R.2d
Cir.
Brown,
1951,
5 Cir.
participate unloading equipment;
670 together appellants, a third with person appealed, were has not who robbing post office a contract
victed Worth, grocery in a small store in Fort They picked up Cali- Texas. questioned speeding, taken fornia for having custody suspects com- for into police an on a officer. mitted assault custody their effects While stamps found. searched and rolls of A called and he Postal appel- questioning the thereafter started lants. Judge, Gewin, dissented. Circuit a court As found suppress a written preliminary motion to state- Inspector. These ments to the Postal were made when statements provisions of discussed with them the permits an F.R.Cr.Proc. Rule person oth- in a district arrested accused com- the crime was that in which er than transferred
mitted to have the case arrest if he elects the district of his plead per- guilty. Thereafter, officer up- sign full them to suaded promise try ob- would on his that he charges against of state tain dismissal Although in the dealt with them. order, the officertestified trial court’s hearing he on the motion while provisions with Rule discussed promises and did not them he made urge However, plead it. them to under Worth, Tex., Williams, Fort Richard G. as fol- on cross examination he testified Dallas, Tex., MacDowell, for J. Gordon : lows C. Williams. you “Question: reason What Dallas, Tex., MacDowell, for Gordon give guilty pleading them about P. W. Howell. taking mandatory year sen- Gary Atty., ? Sanders, tence T. Barefoot U. S. Worth, Jr., Atty., Cole, U. Asst. S. go want to “Answer: didn’t Tex., appellee. for Mr. Mr. Mitchell and back to Texas. govern- were afraid Williams Judge, TUTTLE, Chief Before might charges drop ment Judges. GEWIN, BROWNand Circuit might pick up and follow state .them through habitual criminal on an Judge. TUTTLE, Chief charge [carrying sentence].” life arising These two cases out out the written con- The court ruled argument for same trial and consolidated fession, saying: and judgment Court attack the submission ground “I will sustain motion and trial court on the objection testimony extrajudicial con- written statement July signed guilt improperly basis 23rd on the fession of admitted by promise on that was induced evidence. prosecution continuing postal inspector Texas part one would, just get try court and that it was as much their in- state ground cooperate dismissed, In- and on that terest *3 cases August spector by giving a confession alone.” July. agree. as it had been We brought back to After the men being the held in There can no Fort Worth and were be doubt about the rule county Inspector jail, that another a confession made because an by He talked to them. inducement visited of the kind found the trial hearing of motion to the court to testified the in have been offered the first suppress by them that that after he warned is stance as inadmissible as if forced any statement, compulsion, that need not make or threats fear. The United the5r they did prop if statement could be the States does not take issue this with they them, con States, and that osition. In Bram v. United 168 they lawyer, oral con 532, 183, 568, sult made a full U.S. 18 42 S.Ct. L.Ed. cited recently Mfg. to see fession. said that he called He in Shotwell Co. v. United Howell, States, talk with but Howell would not 341, 347, 448, 371 U.S. 83 S.Ct. being present. 453, out He then 357, the others Supreme 9 L.Ed.2d Court present, all testified that with three said: talking and told Howell did most “A in order admis- of the in detail about the commission sible, voluntary: must be free and robbery. did not * * * * * The three defendants * is, that stand, on the but testified take the by any implied obtained direct or suppress they had made * motion to that * slight promises, however no admission at session. dispute Neither the United does States Inspector per- was When the Postal by appel- the contention made here detailing testify trial, mitted to at the lants that where a has been admission he said had been made to inducement, obtained means ground him, objected on counsel prosecution is burden show the statement received in operating force of the has inducement pre- of the evidence because inducements brought an been end before subse- viously given obtain quent confession This be received. fession. Wigmore rule is stated as follows: meeting between men the three general principle “The univer- is and the Postal Worth sally subsequent conceded approximately one month after their improper end of an inducement must signed had been Cali- taken shown, e., is i. assumed have fornia. contrary continued until is charge Wigmore, proper The trial court shown.” 3 Evidence touching jury 1940). (3rd on the need for § ed. voluntariness of the admissions before present- A much issue more difficult jury. could be considered Of when wheth- ed the court must determine course, jury had not the tes- heard er, fact, run its the inducement has timony who the Postal motivating course as a a later cause when promises to stated that he made the ac- confession is obtained. signed persons cused before Bayer, In the of United case States 1394, 91 L.Ed. 331 U.S. 67 S.Ct. charge Supreme here Court reaffirmed overruling objec although proposition that, court’s of the it is dif- tion to the admission of the later ficult to visualize case in which clearly motivating produced ini- erroneous. facts that longer say overhanging illegal of the threat tial danger moving entering “state into the court and the of a cases” consideration
n sought sought admission, subsequent an interview .giving there he aof n aresuch alone, apparently, case Howell either in that because The Court cases. proof inadequacy period lapse of six of the of a because found that the unavailability witness, months, coupled that the there with fact n accused proof custody of an Howell than was no other admission was not army except base, fur- being the written confession. It is restricted significant in- that when Powell number of ther had had a the fact that he trial, of In- cross examined on the he admitted Federal Bureau terviews talking defendants, vestigation, fill in that the three when in which offered to jail complained confession, per- Worth to him the Fort of his earlier the details *4 having signing holding of into the confes- been tricked that the second mitted (the in confession California the weak- sion was infected with not by subsequently ruled out the trial court of the first. nesses suppress).\ on the motion to It is chronology (1) There is: Here the seeking noted that therefore Powell was defend- conversations with the three were to subse- bolster a confession which was shortly be- .ants in California after was quently out and also to ruled obtain might be United lieved that the States govern- apparently confession which the cases, which the at time interested the against needed Howell if the writ- ment agents discussed with the defend- (cid:127)federal out, ten confession should be ruled rights The under Rule 20. .ants their under whereas the defendants were all hearing held, prelim- on the trial court they already impression the that had inary suppress, had motion to that there given a be written confession that was to time, no inducement offered at that been against them.,, used a substan- that the defendants made 'but tially complete \ this state of facts find no of their Under we statement im- government by plication (2) robbery. substantial to All three effort confession, carry showing signed the burden of that written (cid:127)defendants circumstances which made the written was inadmis- which the trial court held longer by confession inadmissible were no it had induced sible because been motivating producing promises part inspector factors in of given by attempt oral he would have state admissions the defendants that to nothing jail. (3) in the Fort There is (cid:127)cases .strong On the trial Worth dismissed. against promise up de- to show of case was built assistance by eye preventing prosecution of de- fendants certain witnesses at these n sceneof n statements made robbery. (4) by California, The oral fendants State by as California Wil- the avoidance to two of a (who ap- prosecution has under habitual liams and Mitchell not Texas by pealed) fore- the Postal criminal act were testified to not still in the (5) Inspector, they minds Stokes. front their when made the testify being permitted to to then was to oral admissions after Powell returned certain, jail. admissions made all three the Fort least, / oral Worth they had re- where (cid:127)defendants after men been were back Texas readily they prosecuted to Fort under turned Texas be government jail. law if Worth the Texas the federal prosecution. saw fit to abandon the As noted no It is be that there was government quoted above, one witness testimony on the trial itself that Howell testified that it was fear of the Texas had ever made an oral statement in Cali- prosecution that motivated Williams and signed prior fornia to the confession. original giving Mitchell given 'Therefore, testimony Agent admissions made think, however, only proof Fort Worth of ad- We that the most touching validity Thus, important fact on mission or Howell. significant quite 'it when of the oral admissions made after the be Worth, express Court takes this means men had been returned knowledge they appreciation ap- al- its counsel who had was their full, pointed represent ready signed a written confession in knowledge appeal. this lack of and their Having signed already GEWIN, Judge such a con- (dissenting). them. Circuit contended, fession, (albeit, they majority opinion has misconstrued doing being so) deceived into reason of they facts, certain im- failed to notice other knew indication that portant facts and has not made correct suppressed. that this confession could application pertinent the law the circumstances what would Under these involved. facts gain by failing at this late date careful, experienced A cautious and prose- cooperate fully with the refuse to benevolently gener- ruled orally repeating cutor to the extent of ously respect certain confessions again already said in writ- what involving 3 who criminals are not novices ing? Evidence, Wharton, Criminal See activities, in criminal who are People v. *5 (12 1955), and Sec. 359 ed. strangers to the courtroom or criminal Jones, P.2d touch- Cal.2d procedure. Out of an cau- abundance of ing requirement prisoner a on Judge tion the District “leaned back- prior should informed that invalid be wards” and excluded written .confes- against used him be sion toas the two their subsequent confession can before his (Mitchell, appeal- associate who has not valid. have no doubt that considered We ed), and excluded of present circumstances here under the prior Howell made to the con- written government, there was a burden on the fession. acceptance ad- before the of further oral perfect This case is a illustration of the accused, mission or confession from the position in which a trial awkward original to inform them that the written placed, bur- is often and the intolerable would confessions not be offered used undertaking must in den bear he against plain from the evi- them. crafty, of the trial criminals who are duct dence that the defendants were com- here ingenious, irresponsible, unprincipled plaining of of the existence this outstand- any kind and will resort to delay of tactics ing written confession. Thus it is clear sen- final and avoid the government agent not tell tence of the law. invalidity them of its or the fact quiet evening On a June in 1962 these the written would not of- by appellants accompanied two Mitchell or them. Thus there fered grocery entered a small in store having would be no warrant in a further guns. Worth, Texas, carrying partA finding respect point. of fact with grocery store was used as a United conclude, therefore, We that a new States Post em- OfficeSubstation. Three granted, trial must be at which the oral ployees in the were foi'ced establishment admissions obtained in the Fort Worth store to lie face down in the rear of the jail can not be used. cash the 3 criminals looted while registers carefully We have considered mo- store, in Of- and the Post government tion How- dismiss and cash As fice safe box. ground appeal ell’s failed leaving, the owner arrived and he too appeal to file his notice of within the on was made lie the floor down proper time. We find that there was pocket. his from his billfold removed compliance sufficient satisfy with the rule to They escaped to California where requirement. apprehended for other law viola- judgments Appellant -and tions. The Howellhad former- reversed ly proceed- burglary cases are remanded for further been convicted and served ings opinion. penitentiary inconsistent with this in the state sentence Texas; promise Huntsville, in and Williams had California induced burglaries Inspector of Postal Stokes to have the of numerous been convicted peni- prosecu- defendants released from state time in state served Florida Although tion California. the defend- there. tentiaries misgivings ants had about some return- criminals made confessions All 3 of the ing quoted to Texas as shown times. Mitchell and Williams at various majority opinion, statement officials in Cali- to state made confessions any factor was not involved in sense when freely crime. discussed the fornia and Inspector Postal talked with them In- confessions to also made oral charges Only California. California alleged prior in- spector Stokes time; were involved at and insofar California, Mitchell and In ducement. discloses, record the State Texas place confined one Williams were any charges against present never did another. the written Before Howell any of the defendants. question, made Howell also appellants employed Postal confession to skillful coun- an oral confession, which suppress The written Stokes. sel who filed a motion to suppressed from the and excluded all confession and evidence, was made to given by other statements the defendants July all S of the offenders Stokes since arrest A-full their California.” At the 23 in State of California. day’s hearing was conducted on mo- planned to enter time the 3 defendants suppress tion to the written confession. guilty pleas pursuant to F.R.Crim.P. It was claimed the defendants that *6 plan when one 20. This was abandoned unlawfully had confession been objected to the use the defendants given induced. The defendants were information, “knowingly” the word in the immunity complete and testified at contended, know he did not because as he length. on When the defendants rested grocery in a Post Office was located the motion stated to court that and store. any testimony, none of them had further July highest Attorney Hughes, on After written confession District legal profession, to defendants were returned Tex- traditions of fairness, as for trial S. District Court the U. candor and volun- unusual tarily question Texas. On for the Northern District of raised the de- that August 28, slightly only after over 5 weeks fendants’ motion went not to the “ * * * sup- the written confession which was all written confession but to evidence, pressed given by and excluded from other statements the defendants defendants made an oral since The their arrest California.” Attorney This oral at a dif- confession was made District he wished then stated location, time, clarify inquired and to ferent different to of the a matter resting person. they a different The oral confession defendants whether were “ * * * they Inspector every was made to Postal Powell as to in- statement allegations Worth, Texas. Fort tend to contest under the rights they Attorney fully advised of their before this motion.” The District confession, told made such oral then the defendants and their informed they counsel, that that that was another oral state- were entitled to counsel there right silent, perfect upon had a which would to remain ment the Government any rely made trial. He then statement at the informed them. At the time and their counsel of the oral defendants charges” the oral the “state the Government rely. trying stated, “I and the would am not had been removed He California just long them, I been released to run their business for defendants since custody want to sure there no misunder- from the of the Cali- State standing suppress it was of what has been fornia. On the motion to covered * * given court con- this motion claimed the written confession
{575
given
that the
unlawful
oral
that it was his
render
eluded
allegations
Inspector
motion
broad to
of the
Powell at Fort Worth on
August
enough
any kind of
cover
28.
nied that
the defendants took the witness stand
with full
to the
They
know of the other
after,
hear
to hash it
counsel did
such statements to
the District
was understood
suggested
gave
fense counsel
District
confessions made
Inspector
the Government
fendants about
sary
closed
anyone, and I am
fendants and
we
ness to take
time would be
statement.”
[*]
District
The court forthwith
“I am
their counsel
claimed
is another
At this
[*]
have
matter,
Worth,
did not claim
defense
fully
“
any objections
the Government
defendants
[*]
trying
on the
* * *
ft
Attorney expressed
as to
Attorney
taken
immunity,
Powell.
misled, coerced,
stage
any
made to
out,
statement,
and in minute detail the oral
Attorney said in
and both the
confer
whatever
Texas,
Both the
their
stated
counsel
the oral
given
of
we
witness
the
would
day
telling
keep
and their counsel that
statement.
made it
can do it
Thereafter,
and
with them. There-
inducement,
Inspector
the defendants and
confer
counsel that
explained
to them to
get
on this
and if
ample
from
placed
time was neces-
court wished
proceedings,
categorically
the defendants
rely
confession. As
them that
August
stand and
court
had made
court
defendants
to the truth
or
crystal
with the de-
on
open court,
misleading
now,
persuaded
business.”
The court
time
to the
each
and the
willing-
or that
go
28.
Powell.
ample
there
want
since
clear
oral
into
dis-
any
and
and
de-
de-
de- given
of
made
proper
had denied and said
considered, it must be found to have been
case came on for trial.
made to
jection
ance with the
take a
*7
the defendants elected not to take the
was induced
the defendants on
confession had been
stand. As the matter was
the trial court
objection:
The defendants
coercion and duress. There was no ob-
jury,
They elected not to do
ernment was forbidden make
ell
oral confession
District
suppress,
erence to it.
When the case was
previous matters in California had
After the
make the record
jection
was under
conversation while the defendant
In view of the fact
ord, I would like to renew our ob-
already
law
opportunity
“MR. BIDDLE:
voluntarily
subject.
instruction
showing
testified
Attorney upon
to this
trial court
the Government offered the
been
before confession could be
foregoing proceedings,
previous
final
therefore, Inspector
Only
arrest,
tomade
as
and the
rendered
and free from unlawful
the written confession
concluded;
the motion
straight.”
testimony,
to a
Powell on
Stokes California.
a
charge
suppressed,
the defendants had
Just
statements of the
and after
submitted
so.
Inspector
that the written
In exact accord-
right
had not made.
requirement
for
At
of
presented
a
hearing
August
the oral
just
the rec-
lucid and
the court
to under-
following
this time
suppress
the Gov-
Powell.
which
Pow-
ref-
of
effect,
majority
improp
the oral
opinion
make
relied
In
entirely
repeated
erly
on a flat denial. After
substitutes
of
this
court,
court,
caution
full
court
disregard
of
disclosure
for that
the trial
in total
Attorney,
explora-
pertinent
the District
and full
of
facts before
judge
facts,
lodged
tion
all the
of
details and
the court
trial
and
the discretion
determining
judge
ruled that there was no evidence what-
in the trial
the ad
any inducement, coercion, missibility
ever to show
of
In effect the
confessions.
duress,
majority
or
other fact which would
has found
trial court
that the
Mangum
is
v.
To
same effect
United
confessions to be
should have
involuntary
ruled
Lyons
1923,
States, 9
cases, is of which finding one, of fact which his McMANAMAN, ntiff-Ap J. Gerald Plai plainly add- (Emphasis *8 untenable.” pellant, ed.) Lyons, supra, Supreme D. COM T. AND C. SHERIDAN W. Court Foreign PANY, Corporation, clearly expresses follow- the rule Defendant-Appellee. ing language: No. 15404. a dis- But where there is pute Appeals as to whether the acts United States Court of actually charged Sixth Circuit. coercive are occurred, where different infer- Feb. or 1964. may fairly ad- drawn from ences facts, and the mitted only position jury in a better are not falsity appraise truth from the assertions the defendant’s witnesses but demeanor
legal duty to make
decision.”