Simmons v. State, 61 Miss. 243

Simmons v. State

61 Miss. 243 | Miss. | 1883

Campbell, C. J.,

delivered the opinion of the court.

Most of the numerous exceptions reserved by the appellant and assigned for error are without merit. All have been considered but only a few of them will be specially remarked upon.

When it was proposed by the State to introduce evidence of confessions of his guilt by the appellant, he asked that a preliminary investigation should be made by the court, to ascertain if the alleged confessions were made under such circumstances as to make them admissible in evidence. The court refused to pursue this course, and stated that all the evidence as to the confessions and the circumstances attending them might be introduced, and if it should appear that they were improper to be received as evidence they would be .excluded. Evidence of confessions of his guilt by the appellant was received, and the jury was instructed at the instance of the State and the appellant as to the admissibility of confessions as evidence.

We are strongly impressed with the belief that some of the confessions introduced as evidence were incompetent, and should have been excluded. The inquiry whether confessions were made under such circumstances as to make them competent evidence is a pre*257liminary one to be made by the court, in which a full investigation ' should be had, with a view to determine the competency of the proposed confessions, and it is for the judge, after such investigation, to determine whether the confession shall be admitted in evidence or not. If satisfied, after hearing all the evidence pertinent to the inquiry, that the confession is admissible, it should be allowed to be related to the jury, whose province it is to determine the value as evidence but not the competency of a confession. Unless it plainly appears that a proposed confession was made in such manner as to make it competent evidence, it should not be received, and, if admitted, and in the prrigress of the trial it should be made to appear that it was obtained under such circumstances as to render it incompetent as evidence, it should be then excluded by the court.

If the preliminary investigation which was proper had been made by the judge as to the proposed confessions to enable him to decide as to their admissibility, it is not to be doubted that specific inquiry on that issue would have distinctly drawn the line between competent and incompetent confessions, but with the testimony delivered ¿s it was we find it difficult to determine as to this.

It seems to us that the confessions testified to by the witness Chafin are competent evidence, but that those testified to by Reynolds and Sykes and Finley, prior to the time when McIntosh announced to the prisoner his purpose not to do anything for him, are incompetent. We deduce from the record that McIntosh, who was of counsel for the prosecution, and “the leading spirit” in it, as stated, had told the prisoner, if he would tell what he knew of the murder of General Tucker, he (McIntosh) would do all he could to save him; and it was after this that the prisoner made a. confession to Reynolds, and subsequently repeated it with variations; to Reynolds and Sykes, and as we read the record, Mr. Finley was-present on one occasion when the other gentlemen just named were before the prisoner in jail, and testified to the same confession testified to by them. It was probably on the occasion of the third interview between Reynolds and the prisoner that McIntosh declared to the prisoner his purpose not to try to do anything for him. Confessions made by the appellant after this are competent, *258as affected by the promise of McIntosh. Inasmuch as the correct practice was not observed, and we are satisfied that some confessions of the prisoner were received as evidence which were inadmissible, but are not able to determine satisfactorily from the record as to the competency of some of the confessions testified to, we will not particularize, but content ourselves with announcing the true rule in such cases, and leave its application to the circuit court in the new trial which must be had. Every confession by the prisoner before the withdrawal of the promise of the prosecuting attorney, McIntosh, to him above mentioned, and which may be fairly traceable- to that promise as an inciting influence, should be excluded ; and so of any which, by the familiar rules of law, may be incompetent from any other cause, which may have inspired such hope or fear as to render confessions inadmissible.

Evidence was improperly admitted as to conversations of Dick Shaw after the .killing of General Tucker.

The prisoner was denied the right to testify before the jury as to the state of his mind at the time of making the confessions introduced in evidence. He should'have been permitted to testify on this subject. It was material to his defense that the jury should hear what he felt and thought as explanatory of his confessions. If they were sincere and true, they authorized his conviction. If they were false, and made for a purpose, if prompted by hope or fear, the jury should have had an opportunity to learn it, so as to place a proper value on them. And who so capable of informing them as the person, the state of whose mind was the subject of investigation ? He was a competent witness for. all purposes, and peculiarly qualified to testify as to the operations of his own mind.

We find no error in any of the instructions for the State, except the thirteenth, further than the impropriety common to both sides of instructing the jury as to the admissibility of confessions. As before remarked, the jury had nothing to do with the competency, but only with the sufficiency of confessions as evidence.

The thirteenth instruction for the State is in effect that the defense of an alibi is “ to be viewed with peculiar suspicion and distrust.” In Nelms v. State, 58 Miss. 362, an instruction was held bad *259which declared that the defense of an alibi was to be viewed with caution and rigid scrutiny. The implication of the opinion in that case is that the instruction would have been free from objection if it had informed the jury that an alibi is a good defense when fully made out; but the decision cannot be invoked as authority for the proposition that an instruction which expressly discredits the defense of an alibi is allowable. We do not think it is. This defense is like any other, and should be left to the jury uninfluenced by instructions calculated to excite prejudice against it or throw discredit upon it.

What would be thought of an instruction to the jury that apparent danger or reasonable apprehension, when relied on by the accused in an indictment for homicide, is a defense liable to abuse growing out of the ease with whieh it may be fabricated, and sustained by false testimony, and the difficulty with whieh such fraud and peijury are detected, and, therefore, this defense is to be viewed with peculiar suspicion and distrust ? There is no doubt that many guilty men have escaped by fabricating the defense of self-defense, -and supporting it by perjury; but it is not allowable because of this to instruct a jury that self-defense is to be viewed with peculiar suspicion and distrust. Nor is it proper for the court to disparage the defense of an alibi.

We have carefully considered the thirty-six instructions asked by the appellant, and find no error in the modification made by the court in those given, or in the refusal of the three whieh were refused.

Judgment reversed and new trial grdnted.