Porter v. State

55 Ala. 95

Opinion

STONE, J, —

“A free and- voluntary confession of guilt, made by a prisoner, whether in the course of conversation with private individuals, or under examination before a magistrate, is admissible in evidence, as the highest and most satisfactory proof; because it is fairly presumed, that no man would make such a confession against himself, if the facts confessed were not true. And the highest authorities have now established, that a confession, if duly made, and satisfactorily proved, is sufficient alone to warrant a conviction, without any corroborating evidence aliunde. But a confession, in order to be admissible, must be free and voluntary : that is, must not be extracted by any sort, of threats, or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.” 2 Russ. Cr. 824. What we have here said is quotation. It is not our intention to overturn or impair the principle declared in Matthews v. The State, at the present term,in which we held that a conviction cannot be had on confessions alone, without some other proof of the corpus delicti. In that case, as in this, the crime charged was a felony.

“When a confession has been obtained, or inducement held out, under circumstances which would render a confession inadmissible, a confession subsequently made is not admissible in evidence, unless, from proper warning of the consequences, or from other circumstances, there is reason to presume that the hope or fear, which influenced the first confession, is dispelled. And in the absence of any such circumstances, the influence of the motives proved to have been offered will be presumed to continue, and to have produced the confession, unless the contrary is shown by clear evidence ; and the confession will be rejected. 2 Leading Cr. Cases, 218.

In Brister v. The State, speaking on the subject of confessions, this court rightly said: “Where promises or threats have been used, yet, if it appear to the satisfaction of the judge that their influence toas totally done aioay before the confession was made, the evidence will be received.” 26 Ala. 107, 129; See, also, Aiken v State , 35 Ala. 399.

In 1 Greenl. Ev. § 221, it is said : “ The influence of the motives proved to have been offered will be presumed to continue, and to have produced the confession, unless the contrary is shown by clear evidence, and the confession will therefore be rejected.”

In 2 Bussell on Crimes, 833, quoting from adjudged cases, is the following language: “ A confession bad been improperly obtained, by giving the prisoner two glasses of gin; the officer to whom it had been made, read it over to the prisoner, before the committing magistrate, who told the prisoner, the offense imputed to him affected his life, and a confession might do him harm. The prisoner said, that what had been read to him was the truth, and signed the paper. Best, J., considered the second confession, as well as the first, inadmissible; and said, that had the magistrate known the officer had given the prisoner gin, he would, no doubt, have told the prisoner, that what he had already said could not be given in evidence against him, and that it was for him to consider whether he would make a second confession. If the prisoner had been told this, what he afterwards said would be evidence against him; but, for want of this information, he might think that he could not make his case worse than he had already made it, and under this impression might sign the confession before the magistrate. Where hopes of favor had been given, and the prisoner refused, before the magistrate, to confess, except upon conditions, Mr. J. Bulleb observed, that there must be very strong evidence of an explicit warning by the magistrate, not to rely on any expected favor on that account, and it ought most clearly to appear that the prisoner thoroughly understood such warning, before his subsequent confession could be given in evidence.” See, also, 2 Lead. Cr. Cases, 213.

In People v. Robertson (1 Wheeler’s Cr. Cases, 67), the magistrate told the prisoner’s wife, that if what she had told him was true, her husband had better confess. He held out no inducement to fear or favor, other than was implied in these words. The prisoner was then in custody, but not in the room in which the magistrate used these words. The wife then asked the witness, “Can we put confidence in him?” Witness said, “You may eonfide in the magistrate.” On the next morning, the same magistrate took the examination of the prisoner, and told him, that nothing he had said before should induce him to expect any favor; but that he (the magistrate) had all the facts, and it would be better to tell them truly, for, if he did not, he would detect him in a falsehood. He then examined him, in the usual manner. The court held, that the confession was, under these circumstances, inadmissible — -that this was holding out an expectation of favor, inconsistent with the free and voluntary spirit in which a confession should be made. See the subject of confessions fully treated in 2 Leading Criminal Cases, 167 to 232.

In Bonner v. The State, at the present term, we, to some extent, considered the question of confessions, and, among other things, said, a reasonable doubt entertained by the court, as to whether a confession was voluntarily made, or not, ought to be resolved in favor of the accused.

In the present case, there .is no material conflict in the evidence which proves the circumstances under which the confessions were made. Hence, this record presents no question of the weighing of evidence. The facts appear to be clearly made out, and are substantially as follows: The prisoner, Porter, was undergoing preliminary trial before a magistrate, on a charge of murdering Isaac D. Moore. Mr. Moore had been the victim of a most atrocious murder, committed, probably, for purposes of robbery, in the night time, and by one or more persons who were lying in wait for the purpose. The State and the prisoner were each represented by counsel. The gentleman who acted as the prisoner’s counsel testified as follows : “ Believing, from the evidence in the ease, and the manner of the defendant, Porter, that he was guilty, and feeling that the only way to save his life was to get him as a State witness, I proposed to Mr. Stewart” [counsel for prosecution], “to make him a State witness, if he would confess and tell the truth. Mr. Stewart at first declined, wishing to confer with Mr. Brown and Mr. W. D. Moore, the brother of deceased. I told him, that I felt convinced that Porter knew all about it; and Mr. Stewart, after consulting with Mr. Moore, at last agreed to the proposition. Porter was sober and collected all the time; and I took Porter out of the court room, and into a private room, and stated to him, that if he would confess, and tell me all about the matter, and all the truth about the murder of Isaac D. Moore, I assured him that he should not be hurt; that he should not be tried for the offense — -that he should be discharged, and used as a witness against the other defendants. I told him, I was authorized by Mr. Stewart, and the other parties engaged in prosecuting him, to say this to him, and to make this bargain and agreement; I can have it strictly carried out, and I will see that it is strictly carried out.” (This occurred at Uniontown.) “The prisoner refused to tell anything about the murder, saying that he did not know anything about it. I then told him, he had just as well tell it ;• for they had sufficient proof against them all to hang them, and thajj the only way he could escape was to confess and tell the truth about it, and become a State’s witness in the cause. The prisoner then asked me, if I could save him, if he would confess. I replied, that I could and would save him from punishment, and that I would suffer my right arm to be cut off before he should be punished, if he would con fess and tell me all about it. The prisoner then said, ‘ Let Mr. Moore,’ the brother of the deceased, ‘ come and tell me that I will not be punished, if I tell it.’ I brought in Mr. Moore, Mr. Nicholson, the magistrate, and Mr. Stewart, the prosecuting attorney; and they all assured the prisoner, that he should not be punished, if he would confess and tell all about it. And I then gave him every inducement to tell, and every assurance that he should not be punished, but used as a State witness, if he would tell the facts about the homicide.” After some hesitation, the prisoner said, “ There is no chance for me, any how; I will be hung, whether I tell or not, and I might as w'ell tell all about it.” He then confessed before those persons. It was then and there agreed, that he should be made a State witness; and he went before the magistrate, in the court-room, and repeated the statement and confession. The next day, while being carried to prison by the constable, and after receiving three drinks of liquor from him, he repeated his confession to him.

On the first and second days, each, after the prisoner was committed to prison at Marion, the leading counsel for the prosecution visited the prisoner in jail, there being in company with said counsel, on each occasion, two other persons, friends of the prosecution; one of them, at least, being present at the request of said counsel. At the first of said visits, the brother of the deceased was present; and the brother-in-law of deceased was one of the number who then visited the prisoner. Said leading counsel said to the prisoner, in substance, as follows: “ I have heard what you confessed at Uniontown. Yon did not tell the whole truth about it. I want you to be particular how you talk, as what you say may send you to the penitentiary or gallows. I have control of the ease now; and all that was done at Uniontown is done away. I withdraw all hopes of reward, and fears of punishment. You have not told all the truth about it. I tell you now, again, Porter, that you must not hope or expect to receive any benefit, favor, or mercy, or think the case will go lighter with you, for what you said at Uniontown, or what you said at any time before, or what you may say now; and if they promised to let you off, or make the punishment lighter, or to let you be a State witness, I tell you it cannot be. You cannot be a State witness; and you must not expect any mercy, or to be a State witness. I want ,‘jon to understand, that all promises made at Uniontown are taken back, and what you said at Uniontown will do you no good, and cannot be used for or against you. If you wish to tell any thing, you must do it of your own free will; and remember, it may hang yo.u, or send you to the penitentiary for life. Now, you can tell the truth about it, if you wish. Do you understand, what I mean?” The prisoner replied, “that he did; that he did not expect any mercy; that he expected to be hung; that he told it, because his conscience hurt him, and he could not keep it any longer.” The prisoner thereupon made confession of his guilt; and the main question in this cause is, were those confessions, last made, rightly admitted in evidence against him?

1. We do not think any unbending, universal rule can be laid down, for the government of all cases, in which it is claimed that confessions are legalized by the withdrawal of promises or threats previously made. The inquiry, in all such cases, presents itself, has all influence been withdrawn and obliberafed from the mind of the prisoner, so as to show, affirmatively, that the confession is clearly voluntary, and not influenced in the slightest degree by the threats, promises, or other inducements, previously made or held out, or by any thing which resulted from such previous threats or promises. For, if such previous inducements were the remote or contributory cause of the confession, the policy of the law forbids that such confession shall be used in evidence; and when previous inducements have resulted in drawing a confession, the proof should be very clear and strong, that the mind of the prisoner had been completely disabused, so as to convince the court that the confession was as free as if no motives to make it had ever been offered to the prisoner. Less than this falls short of proving that the confession was voluntary. In considering the facts of each particular case, the degree of intelligence of the prisoner should be taken into the count.

2. In the present case, the strongest conceivable influences were brought to bear on the prisoner, to induce him to confess. The promises were of the most complete immunity from criminal punishment; and this guaranty was given and sanctioned by the court before which he was being tried, the brother of the deceased, and by the officiating attorneys of both the prosecution and the- defense. Never was importunity more vehemently urged, backed by a stronger array of personal influence, or enforced by the promise of a more tempting boon. A clear head and an imperious will could scarcely resist such combined influences. Under these the first confession was made, and it matters not that the prisoner then announced he expected to be hung; thus repelling, as it may be supposed, all idea that he was at all influenced to make the confession by the promises previously made him. It is very improbable that, in the absence of the im-portunities and assurances with which he was besieged, he would bave confessed bis guilt of tbe horrid crime, tbe commission of which was then so justly disturbing the public repose. In fact, tbe counsel for tbe prosecution, in view of tbe circumstances, admitted on tbe trial that tbe confession, then and thus obtained, could not be given in evidence against tbe prisoner. In this be but affirmed what all tbe law books teach.

Tbe second confession, made on tbe day following, tbe counsel for tbe prosecution also admitted was illegal evidence. In this be asserted only a legal truism, for two reasons; first, tbe inducements of tbe day before bad not been withdrawn; and, second, tbe confession was made to tbe officer who bad him in charge, and who, previous to tbe confession, bad given tbe prisoner three drinks of liquor. It is thus shown that, up to tbe time tbe prisoner was committed to jail, none of bis confessions were admissible evidence against him.

Were tbe explanation and withdrawal of tbe offered inducements, which took place when tbe prosecuting counsel visited tbe prison, sufficient to efface from tbe mind of tbe prisoner every trace of influence exerted by tbe promises made, so as to leave bis mind as free to act, as if no hopes or expectations of benefit bad been previously held out to him ? Are we convinced — fully convinced — that such was tbe case ? The recitals in this record do not enable us to answer these questions affirmatively. Tbe prisoner was evidently an ignorant man. He was confronted only by persons who believed him guilty, and could not be classed as bis friends. Neither bis counsel, nor any sympathizing friend, was present; and be was not warned or advised to reflect, or take counsel, before be made further confession. We do not say that this last step would be in all cases necessary; but, in tbe then condition of tbe prisoner’s mind, and with tbe persons then around him, it would bave been eminently humane and proper to do so. Above all, we do not think it was sufficiently explained to tbe prisoner, ignorant of such things, as we are satisfied be was, that none of tbe confessions previously made by him could be proved in court against him, or could exert any influence whatever in bis trial. This point should bave been made unmistakably plain to him. Less than this does not assure us that tbe prisoner may not bave believed bis former confessions bad sealed bis doom, and that any denial be might then make would be of no avail.

. In what we bave said, we do not wish to be understood as disapproving confessions of guilt, voluntarily made, as an instrument of evidence. When they are tbe spontaneous out-crop of conscious guilt, made without importunity, without appliances of hope or fear, if satisfactorily proved, they deserve to be classed with the highest evidence. No sane man, it is supposed, would deliberately and falsely volunteer a confession of his guilt, and thereby bring odium and probable punishment upon himself. Consequently, when a confession is freely and spontaneously made, it is an evidence that the virtuous instincts are not all deadened, and that conscience is doing its accustomed work. A self-accusing secret is a restless prisoner. It struggles for enlargement. "When, however, appliances and artifices are resorted to, as a means of inducing suspected persons to confess, such confessions come in so questionable a shape, that they deserve very careful, watchful scrutiny. The doctrine of admitting confessions in evidence, has been sometimes carried to the outer verge of propriety. King v. The State, 40 Ala. 314.

3-4. Many of the charges given and refused do not bear on the question of Porter’s guilt. They are only important as bearing on the guilt of other defendants. Of the charges asked and refused, several are of this class. Charges numbers 2, 5 and 6 assert correct legal propositions, and should each have been given. Charges 1, 4 and 7 were calculated to mislead, and should not have been given. The clause in the general charge, authorizing the jury “ to compare the confessions of each with the' other,” was calculated to mislead, and should not have been given, without a limitation. Parties were on trial, against whom no confessions were proved. Against such, neither the confessions of others, nor a comparison of the confessions one with another, should be allowed to have the slightest influence. As to them, such confessions were but unsworn hearsay; and should have been allowed to exert no more influence against them, than if the parties confessing had not been on trial.

5. An attempt made to prove any material fact, followed by a failure, is a circumstance to be weighed against the party making it. To say “it is a strong presumption against him,” is going beyond what any authority justifies. 1 Bur-rill’s Cir. Ev. 519, quoting from-Wills’ Cir. Ev. 83, says, such failure “is always a circumstance of great weight against a prisoner.” “Great weight” is not the equivalent of “'strong-presumption.” Presumptions in law are inferential, or prima fade facts. We are inclined to think Mr. Burrill states the principle too strongly. We cannot perceive, why a failure, in an attempted proof of alibi, should be visited with severer intendments, than a failure in the attempt to prove any other fact in defense. Of course, a fraudulent attempt to prove a simulated alibi, sustained by perjury, will, when detected, be a circumstance of great weight against tbe prisoner. Tbe connection in which Burrill employs the ■expression above copied, tends to show that he had reference to an unsuccessful fraudulent attempt to establish an alibi. In that sense, we agree with him.

The judgment is reversed, and the cause remanded. Let ihe prisoner remain in custody, until discharged by due •course of law.