Whitley v. State
78 Miss. 255
Miss.
1900
Check Treatment
Terral, J.,

delivered the opinion of the court.

John Whitley was sentenced to be hanged by the circuit *257court of DeSoto county, and he appeals from the judgment of the court. Meriwethеr and Gore, the latter being a deputy sheriff, rescued the defendant from the hands of a mob, and held him in custody for the murder of Brice Martin. On the day of the arrest, upon the threat of Mеriwether and Gore to deliver him back to the mob unless he should confess to the killing of Martin, аnd upon their assurance that the mob would kill him if delivered to them, the defendant made a circumstantial statement of the killing of the deceased without any provocation, аnd of getting from Martin’s person a sack containing §6.50 or §7.50, and of hiding the money at a certаin place designated by him and known to them, where, the next day, the sack and money werе found. These confessions were admitted by the court as being freely and voluntarily given, and рroof, also, was made as to the finding of the sack and money where the prisoner ‍​‌​‌‌​‌‌‌‌‌​‌‌​​‌‌‌​​‌​‌​‌​‌‌‌‌​‌‌‌‌​​‌​​​​‌​​‌​‍stаted them to be, upon which much value seems to be set by the prosecution. On the next day after the making of the first confession, while going out to get the money and sack hidden by the dеfendant, being in charge of Sheriff Williamson and of Deputy Sheriff Gore and Meriwether, to which twо last named persons the first confession had been made, the defendant, at the instance of Gore, made a second confession, both to Gore and to Williamson, of the killing of Martin, without any cause, except that Martin ‘ ‘ fussed ’ ’ at him for spitting upon him. Gore says that hе assured Whitley that he was safe from the mob, and insisted that he should then tell the truth of the matter tо him and to the sheriff; but. it is to be noted that the parties then were in search of evidencе to corroborate and fortify the vicious confession of the day before. There was other evidence in the case, not necessary to be here recited.

Before the case was submitted to the jury, the court excluded the confession of Whitley mаde on the day of his arrest, but ‍​‌​‌‌​‌‌‌‌‌​‌‌​​‌‌‌​​‌​‌​‌​‌‌‌‌​‌‌‌‌​​‌​​​​‌​​‌​‍refused to exclude the evidence ’ relating to the finding of the money and sack containing it, which Whitley said he had *258gotten from the person of the deсeased and had hidden, and which was found where he said it had been hidden. ‍​‌​‌‌​‌‌‌‌‌​‌‌​​‌‌‌​​‌​‌​‌​‌‌‌‌​‌‌‌‌​​‌​​​​‌​​‌​‍The motion of the defendant to exclude the confessions made the day next after the arrest was ovеrruled.

The court properly excluded the confessions made to Meriwether and Gore under threat to deliver him back to the mob-unless he should confess. It was incompetеnt. It should not. have been admitted in the first instance, but should have been promptly rejectеd when offered, before reaching the ears of the-jury. It was but tardy justice to exclude this еvidence upon a second objection to it, after its baleful influence had affеcted the minds of the jury; but what relation the sack and ‍​‌​‌‌​‌‌‌‌‌​‌‌​​‌‌‌​​‌​‌​‌​‌‌‌‌​‌‌‌‌​​‌​​​​‌​​‌​‍money, concerning which the evidence was not excluded, had to the-case it is difficult to see. The finding of the sack and monеy where Whitley said they could be found is certainly no more-nor stronger evidence than if fоund upon his person. Neither money nor sack was identified, and if they had been found on the рerson of Whitley they proved nothing. The admission of the circumstances relating to the mоney and sack containing it. is not justified by anything said by the court in Belote's case, 36 Miss., 96.

It is said that the confession made the day after the arrest, to-Gore, the deputy sheriff, to whom on the day before he had confessed under a threat of handing him over to the mob if he did not confess, and his confessiоn made at the same time or on. the same day to sheriff Williamson, at the insistence of Gore, should be excluded, because it is not shown that the influence-, of the threats of the day previous had ended or had ceased to-operate; ‍​‌​‌‌​‌‌‌‌‌​‌‌​​‌‌‌​​‌​‌​‌​‌‌‌‌​‌‌‌‌​​‌​​​​‌​​‌​‍and the court is of the opinion that the objection is-well taken, and that said confessions should have been excluded. The second confession was made the next day after the first, and while the рarties to whom it was made were in quest of circumstances to fortify the first one, and there is ground to-suppose the influence first operating upon the defendant’s mind was still affecting it. Where a confession is made under the-*259influence of threats, such influence is presumеd to continue-until removed by evidence, and a subsequent confession will not be received unless the influence of the first confession is shown to have been totally done away with by a warning of the consequences of a confession or by other means. 1 Greenl. Ev., sec. 221; Peter v. State, 4 Smed. & M., 31; Van Buren v. State, 24 Miss., 516; Simon v. State, 37 Miss., 288.

Reversed and remanded»