State v. . English
159 S.E. 318
N.C.
1931
Check Treatment
BbogdeN, J.

Is the voluntary confession of a third party, made to officers of the law, that he killed the deceased, detailing the circumstances, competent evidence in behalf of the defendant charged with the murder ?

The admissibility of confessions of a third party in criminal actions has been bitterly assailed and warmly defended by courts and text-writers. The numerical weight of authority excludes such testimony. About one hundred years ago it appears in S. v. May, 15 N. C., 328, that a defendant was charged with stealing a slave. At that time this was a capital felony in North Carolina, and the defendant having been convicted, the. judgment of death was pronounced against him. In that case the defendant offered testimony that another man had confessed to stealing the slave and had made compensations therefor. The testimony was rejected. The Court said: “Except the facts of the respective residences of the parties, which of themselves do not tend to establish *299 guilt in either of the parties, it is obvious that all the evidence, as well that received as that rejected, consists of the acts and declarations of other persons, to which neither the State nor the prisoner is privy. I think the whole of it was inadmissible. The confession is plainly so. It is mere hearsay. It may seem absurd to one not accustomed to compare proofs, and estimate the weight of testimony according to the tests of veracity within our power, that an unbiased confession of one man that he is guilty of an offense with which another is charged, should not establish the guilt of him who confesses it, and by consequence, the innocence of the other, but the law must proceed on general principles; and it excludes such a confession upon the ground that it is hearsay evidence — the words of a stranger to the parties, and not spoken on oath. Indeed, all hearsay might have more or less effect, and from some persons of good character, well known to the jury, it might avail much. Tet it is all rejected, with very few exceptions; which do not in terms or principle extend to this case. Even a judgment upon the plea of guilty could not be offered in evidence for or against another, much less a bare confession. As a declaration of another establishing his own guilt, the confession of a slave might be used upon the same principle.”

The May case is the original legal patriarch of an increasing line of legal descendants in this State. S. v. Duncan, 28 N. C., 236; S. v. White, 68 N. C., 158; S. v. Gee, 92 N. C., 756; S. v. Lane, 166 N. C., 333; S. v. Church, 192 N. C., 658. The states holding the same interpretation of the law are assembled in a note in the decision of Donnelly v. U. S., 228 U. S., 243. The minority view is clearly and concisely stated by Mr. Justice Holmes, who wrote a dissenting opinion in the Donnelly case, supra, in which Justices Lurton and Hughes concurred. Justice Holmes said: “The confession of Joe Dick, since deceased, that he committed the murder for which the plaintiff in error was tried, coupled with circumstances pointing to its truth, would have a very strong tendency to,make any one outside of a court of justice believe-that Donnelly did not commit the crime. I say this, of course, on the-supposition that it should be proved that the confession really was made, and that there was no ground for connecting Donnelly with Dick. The rules of evidence in the main are based on experience, logic and common sense, less hampered by history than some parts of the substantive law. There is no decision by this Court against the admissibility of such a confession; the English cases since the separation of the two countries do not bind us; the exception to the hearsay rule in the-case of declarations against interest is well known; no other statement is so much against interest as a confession of murder, it is far more calculated to convince than dying declarations which would be let in to hang. *300 a man; . . . and when we surround the accused with so many safeguards, some of which seems to me excessive, I think we ought to give him the benefit of a fact that, if proved, commonly would have such weight. The history of the law and the arguments against the English doctrine are so well and fully stated by Mr. Wigmore that there is no need to set them forth at a greater length. 2 Wigmore, Evidence, sees. 1476, 1477.”

The Supreme Court of Appeals of Virginia in Hines v. Commonwealth, 117 S. E., 843, assails the whole majority doctrine, and summarizes the attack in these words: “The reasons given by the authorities for rejecting proof of such evidence seems to us unsatisfactory and entirely arbitrary; and, no rule of property being involved, we do not think it is even yet too late to abandon the unsound precedents and follow the rule of right and reason.”

The Supreme Court of Kansas in State v. Scott, 235 Pac., 380, granted a new trial for failure to admit evidence in behalf of a husband on trial for killing his wife, that a “mysterious stranger might have committed the murder.” A petition to rehear was filed and the former decision adhered to. Two Justices, however, dissented.

The Supreme Court of Colorado in Moya v. People, 244 Pac., 69, adopts the majority view with two Justices dissenting. The Supreme Court of Kentucky in Etly v. Commonwealth, 113 S. W., 896, adopts the minority view in a case in which the husband was on trial for killing his wife.

The great jurist who wrote the May case confesses that the holding might seem absurd to a layman, “but the law must proceed on general principles,” and hence if proffered testimony is technically and legalistically hearsay, then the technical interpretation must prevail. Furthermore, the suggested possibility that some man accused of crime would procure a confession of guilt by a slave and thus escape punishment, might have been a consequence which law-writers of a hundred years ago were seeking, to avoid.

The writer of this opinion, speaking for himself, strings with the minority, but it was the duty of the trial judge to apply the law as written, and the exceptions of the defendant are not sustained.

Certain exceptions were taken to evidence relating to the association of defendant with a school girl. These exceptions are not sustained, for the reason that while proof of motive was not necessary, yet it has been held with practical unanimity that such circumstances are competent in eases similar to the one now under consideration. Exceptions were also taken to evidence tending to show that the father of the deceased woman, who was a witness for defendant, had attempted to bribe a colored man to implicate two other parties. These exceptions are not sustained. S. v. Patterson, 24 N. C., 346; S. v. Beal, 199 N. C., 278.

*301 Tbe record is voluminous and no impartial mind can review it carefully without an impression of grave doubt. Obviously, such an impression was in tbe minds of tbe jurors wbo convicted tbe defendant of murder in tbe second degree and prayed tbe mercy of tbe court, but tbe trial judge bas correctly applied tbe law as written.

No error.