72 Miss. 117 | Miss. | 1894
delivered the opinion of the court.
The errors assigned and argued by counsel are:
1. That the verdict is not supported by the evidence.
2. That the court erred in admitting evidence of the confessions of defendant, which confessions, it is contended, are not shown to have been voluntary, but were extorted from the defendant by threats and violence.
The first error assigned is not well taken. The evidence not only abundantly supports the conviction, but reaches as near to demonstration as can be possible. But an important part of the evidence is the confession of the appellant, and the fate of the verdict depends upon the competency of this evidence. The confessions were proved by the witness, Emanuel Ellis, who gives, in substance, this account of the circumstances under which they were made. After the death of the deceased had been discovered, a number of persons, including the witness, the
Some of the testimony of the witness, Ellis, was given before the court on a preliminary examination, and in the absence of the jury, and some of it before the jury after the court had declared its competency. Over the objection of the defendant, the testimony of this witness was permitted by the court to go to the jury, and the court instructed for the defendant as follows: “Unless the jury believe from the evidence that the confession made by the accused was a voluntary one, they must disregard it altogether in making up their verdict. ’ ’
In Garrard v. State, 50 Miss., 147, it was held that where there was a conflict of testimony as to whether a confession was voluntary, a question of fact determinable by the jury was
In view of the instruction given for the defendant, submitting to the jury the competency of the evidence of the confession, we infer that the learned judge below was controlled by the rule announced in Garrard v. State, supra. But that case was overruled by Ellis v. The State, 65 Miss., 44, in which case it was decided that when a confession is offered in evidence, the court, upon a preliminary examination, should determine its competency, in which examination the defendant is entitled to the benefit of any reasonable doubt that may exist as to the fact of its being free and voluntary. If the court admits the confession, ' ‘ the state or the defendant may produce before the jury the same evidence which was submitted to the court when it was called on to decide the question of its competency, and all other facts and circumstances relevant to the confession, or affecting its weight and credit as evidence; and if it shall be made to appear at this point, or at any other during the progress of the trial, that the confession was made under such circumstances as to render it incompetent as evidence, it should be excluded by the court. The jury cannot reject or disregard a confession which has been admitted by the court, merely because they may deem it incompetent, for the competency or incompetency of evidence is a legal question not within their province; but, on the other hand, they are not bound to believe or attach any weight or credit to a confession, on the ground
The distinction between disregarding evidence and disbelieving it is a refined one, but it necessarily inheres in the trial of cases under a system in whichj as with us, the competency of evidence is to be determined by the court and its credibility by the jury. If, because of the circumstances of a confession, the jury does not believe it to be true, it ought not to rest a verdict of conviction thereon merely because the court had admitted it; but the evidence cannot be disregarded by the jury— cannot be excluded and not at all considered. The jury must consider all evidence submitted by the court for the purpose of determining its credibility, its weight and effect. Of course, if it is not believed, it can have no further influence; and when this stage in its consideration is reached, then, and not till then, may it be disregarded.
Upon repeated consideration of the evidence touching the circumstances of the confession of appellant, we are of opinion that it does not appear to have been a voluntary confession, clearly and beyond doubt. It was the duty of those arresting the accused 'to carry him before the proper officer, ‘' without unnecessary delay,' for the examination óf his case.” Instead of so doing, they tie him, and take him off in the woods, where, twelve of them still further retire him, for the manifest purpose of subjecting him to investigation. The witness, Ellis, and Clem, the elder in his church, appear to have been the leading spirits of the crowd. The witness then told the accused “that it would be best for him to own that he killed this man, if he did it,” to which the accused replied: “If you all say so.” At this point, Elder Clem observed that “we don’t want anything like that; we want you to tell if you killed the man. If you say you did do it, we will send you to the circuit court, and if you say you did not, we will turn you loose
It is conceded by the attorney-general that the statements of the accused, which followed the offer to hang him, are not admissible, but it is said that the confession already made was not thereby rendered incompetent. To this we cannot assent. The attempt to hang was proximate, in time, place, and occasion, with the antecedent confession. It was, in truth, a part of the res gestee, and casts light and suspicion upon what had gone before. We cannot close our eyes to all that this act discloses. It illumines the immediate past equally, with the immediate future, and we can appreciate, as the helpless prisoner probably did from the first, the character and purpose of the lawless crowd which had’bim in custody. The defendant says that the crowd assembled around his house, ‘‘and. sat around on the fence like, buzzards after a horse, and, when I came out of the house, there was guns on that side and guns and pistols on this side. ’ ’ He further stated that they told him if he would confess, it would go light with him, but, if he did not, they would
The judgment is reversed, and cause remanded.