State v. Stevenson

127 S.E.2d 638, 147 W. Va. 211

• Court: West Virginia Supreme Court
• Decided: July 25, 1962
• Docket: 12129
• Status: Published

Opinions

Browning, Judge:

Ernest Stevenson, hereinafter referred to as defendant, ivas convicted of the offense of murder of the first degree in the Common Pleas Court of Cabell County on September 22, 1960. A motion to set aside the verdict and grant him a new trial was subsequently overruled and, the jury having failed to recommend in their verdict a sentence of life imprisonment, judgment was entered thereon sentencing the defendant to be executed on January 6, 1961. The Circuit Court of Cabell County, upon writ of error, affirmed that judgment to which action this Court granted a writ of error and supersedeas on September 18, 1961.

Perhaps a brief resume of the appellate procedure in this case is indicated. Section 1 of Article 8 of the Constitution of this State provides that “The judicial power of the State shall be vested in a supreme court of appeals, in circuit courts and the judges thereof, in such inferior tribunals as are herein authorized and in justices of the peace.” Section 12 of Article 8 provides that circuit courts “shall have appellate jurisdiction in all cases, civil and criminal, where an appeal, writ of error or supersedeas may be allowed to the judgment or proceedings of any other inferior tribunal. . . .” The Common Pleas Court of Cabell County was created by statute pursuant to the provisions of the Constitution of this State and has jurisdiction in criminal matters. This Court held in State v. McLane, 128 W. Va. 774, 38 S. E. 2d 343, that there could be no direct review of a judgment of a court of limited jurisdiction and that the circuit court of the county wherein such court of limited jurisdiction sat had exclusive jurisdiction to review the judgments of such court.

Upon petition of the defendant, the Honorable John W. Hereford, Judge of the Circuit Court of Cabell County, granted a writ of error to the defendant to the final order of the Common Pleas Court of Cabell County, entered on the 14th day of October, 1960, and thereafter a supplemental petition for writ of error was filed by the defendant alleging certain misconduct of the jury during the trial. On January 6, 1961, the Circuit Court, after a hearing, “on said original petition and said supplemental petition,” remanded the case “to the Common Pleas Court of Cabell County, West Virginia, for the purpose of determining and ascertaining the facts in connection with the alleged acts of misconduct raised by said supplemental petition, with affidavits attached, and to report such findings to this Court with the recommendation as to whether or not the alleged acts of misconduct are in the opinion of the said Common Pleas Court such acts of misconduct as would require” a new trial. Pursuant to the remand the Judge of the Common Pleas Court heard testimony upon that issue which covers 145 pages of the transcript of evidence before this Court. The Judge of the Common Pleas Court thereafter entered an order which stated in part “. . . that the alleged acts of irregularities and misconduct on the part of the Jury are not such as would warrant the setting aside of the verdict of the Jury in this case and so recommends”. On the 26th day of April, 1961, the Circuit Court of Cabell County entered its order to which this Court has granted this writ of error in which that court found that “the judgment of said Common Pleas Court is just, proper and plainly right”.

The errors relied upon by the defendant in this Court are: (1) The evidence is insufficient to support a verdict of murder of the first degree; (2) In admitting in evidence a purported oral confession of the defendant; and (3) The alleged misconduct of the jury.

At common law there were no degrees of murder. All murder was punishable by death. However, the Legislature of this State has seen fit to divide murder into murder of the first degree and murder of the second degree. Code, 61-2-1, provides:

“Murder by poison, lying in wait, imprisonment, starving, or by any wilful, deliberate and premeditated killing, or in the commission of, or attempt to commit, arson, rape, robbery or burglary, is murder of the first degree. All other murder is murder of the second degree.

“In an indictment for murder and manslaughter, it shall not be necessary to set forth the manner in which, or the means by which, the death of the deceased was caused, but it shall be sufficient in every such indictment to charge that the defendant did feloniously, wilfully, maliciously, deliberately and unlawfully slay, kill and murder the deceased.”

There can be no murder without a homicide but the converse is not true. A homicide may be murder of the first degree, of the second degree, or voluntary manslaughter or involuntary manslaughter or it may be justifiable. State v. Galford, 87 W. Va. 358, 105 S. E. 237. A homicide becomes a criminal offense only if the corpus delicti is established just as in any other offense. In State v. Beale, 104 W. Va. 617, 141 S. E. 7, this Court said that to constitute the corpus delicti in a case of homicide two fundamental facts must be established: (1) the death; and (2) the existence of criminal agency as the cause thereof. When the State has established by the requisite proof the corpus delicti the presumption is that it is murder of the second degree. If the State would elevate the offense to murder of the first degree, the State must establish the characteristics of that crime and, conversely, if the prisoner would reduce it to manslaughter or justifiable homicide the burden of proof rests upon him. State v. Morrison, 49 W. Va. 210, 38 S. E. 481; State v. Douglass, 28 W. Va. 297; State v. Cain, 20 W. Va. 679.

The deceased, Louise Davis, was the manager of the Atlantic Sea Food Market, located at 1642 8th Avenue in the City of Huntington, Cabell County, West Virginia, a business enterprise which was usually open between the hours of 6:30 p. m. and 2:00 a. m. on Thursday, Friday and Saturday of each week. On Thursday, February 4, 1960, the owner came to the market between 10:00 and 11:00 o’clock p. m., and determined that there was approximately Twenty Dollars ($20.00) in petty cash in the cash register. The market consisted of two rooms lighted by either three or four single light bulbs to each of which a string was appended. The outside was lighted by a light controlled by a switch located over the door on the inside of the building. The owner returned to the building on the morning of February 5, 1960, at approximately 11:00 a. m., found the front door closed, but not locked; the lights out, one “fire” burning in the stove; and, discovered the body of deceased in the rear room.

A pathologist testified: “... First of all, the face had some sort, didn’t know what it was, it looked like sooty mud and some sort of fine gravel and sand on it. We washed that off and found an excoriation that looked like sand paper or something extremely rough had been sideswiped against the head. The lower jaw was broken on both sides and you could just move it around. The face, I hate to use the word, had been stomped so that you could take the nose and everything up here and move it around and then there was a huge, almost like a sunburst laceration over the left side of the forehead and then there had been multiple, multiple, numerous tearing wounds of the scalp. The bones of the head had been driven internally, into the brain. One large area was so big, 7% centimeters and numerous other sorts of circular defects around this larger one. There was a lot of hemorrhage into the inside of the skull and around the brain. The clothing, the hands and the face were splattered with blood and some of it was dried. . . Then there was a slit, about a centimeter and one half long through the apron that she wore, through her undergarments into the left lung with a slit in the left pulmonary artery, that is more or less externally, sir. . . There was a panty girdle which had been pulled off forcefully. The shoes were still on but the stockings had been turned inside out and the stocking which was now on was now turned inside out and covered therefore the right shoe and had been jerked in half, while the left stocking was still intact and attached to the panty girdle. She had a pair of panties on. I have forgotten the color. They were only on the left leg, they had been pulled off the right leg.” The doctor further testified that: spermatozoa was found in the vagina of the deceased; any of the classes of injuries, that is, to the skull, the face or the slit in the lung, would have resulted in death; and, she had been dead approximately 12 to 16 hours previous to the time he examined her at 1:00 p. m. on February 5, 1960.

George France, a teacher of physical education and athletic coach at one of the high schools in Huntington, testified for the State and stated that he saw the defendant in the Atlantic Seafood Shop about 12:25 on the morning of February 5th. He also stated that he saw another man in the place at that time. He made this answer to a question: “A. She was facing the window there, standing up to the counter and the individual I could see through the door, had his back turned and Ernest was standing around at the side of the counter leaning on the counter.” He further testified that he had known the defendant for about fifteen years and on cross-examination stated that the defendant was in one of his physical education classes and “I wouldn’t want a better boy to deal with in class than he was.”

William E. Morton, twenty-three years of age, another witness for the State, who testified that he had known the defendant “about all my life”, was asked the following questions and made these answers: “Q. I will direct your attention to the early morning of Friday, February 5th, 1960, and I will ask you if you saw Ernest Stevenson at that time? A. I did. Q. Where did you see him? A. In the door. Q. In the door of what? A. The Seafood company. Q. At about what time was that? A. 1:10. Q. About ten minutes after one in the morning? A. Yes, sir. Q. What was the occasion for your seeing him? I mean where had you been or where were you going? A. I had just came up from Fred’s Bar-be-que shop and was walking up the South side of the street going East and I looked over my shoulder and see him. Q. You say you saw him? Do you mean Ernest Stevenson? A. Yes, sir. Q. Where was he when you saw him? A. In the door between the screen and the door. Q. Was the screen door open or closed? A. The screen door was open. Q. Do you know whether the door was open or closed? A. No it was open. Q. Was he standing in the doorway? A. In the doorway. Q. Was the door open or closed? A. The screen door was open.”

Sandra Matthews, a witness for the State, testified that on the 5th day of February she lived at 1331 8th Avenue, was standing with a friend, James Mauck, at the front of her dwelling house and at that time and place saw the defendant. After stating that she had known the defendant for six or seven years, these questions were asked and these answers made: “Q. About what time was it when you first saw him? A. I would say that it was about 1:20. Q. 1:20, was that in the morning? A. It was in the morning. Q. Night time or early morning? A. yes, sir. Q. Where were you at the time you saw him? A. Standing in front of my house. Q. Where was your house at that time? A. 1331, 8th Avenue. Q. Was there anyone with you on that occasion? A. Yes, sir. Q. What was his name? A. James Mauck. Q. Where were you and James standing? A. In front of my house. Q. Where did you see the defendant? A. He was passing the house. Q. Did he speak to you? A. Yes, sir, he spoke. Q. Did you talk with him? A. No, we didn’t talk with him. Q. What did you say, just ‘hello’? A. I spoke and he kept on going.” On cross-examination these questions were asked of this witness and she made these answers: “Q. Which way was he going on 8th Avenue, East or West? A. Well, he was going West, he was coming from 16th Street I guess. Q. Coming from that direction? A. Yes, sir. . . Q. I believe you used to go with Stevenson at one time? A. Yes, sir, in ’57. Q. In 1957? A. Yes, sir. Q. How long did you all go together? A. We went together until the middle part of ’58, I will say March of 1958.”

This is the statement made by the defendant at about 3:10 p. m. on the day of the murder: “I, Ernest Stevenson, age 22, living at 1002 28th Street, Huntington, W. Va., Cabell County, wish to give the following statement with the knowledge that anything I may say can and will be used in court as evidence against me. I understand that I do not have to make this statement and I understand that I have the right to call an attorney and that I give this statement of my own free will without any threats or promises being made to me: I went down to the whiskey store on 9th Street and bought a pint of whiskey. Then I went back to my sister’s house at 1002 28th Street. I stayed there and drank that pint and then I left there. It was right at midnight because I am remembering looking at my watch. I walked all the way down to the fish market on 8th Avenue and I saw Jack Davis’s wife inside sweeping, so I went inside. The next thing I remember I was walking across the street with this hammer in my hand. I walked through the housing project and walked west on Artisan Avenue to Barnett School and I walked down the alley behind the school and I think I dropped the hammer there someplace. Then I must have walked around for awhile then I went to my sister’s house and went to bed. This was about 3 o’clock in the morning. I had to wake my brother, Walter, to get in the house. Then about 11:35 this morning I woke up and went to my jacket to get a cigarette. It was then that I noticed this blood on my jacket. I tried to remember what had happened but I couldn’t remember. I did remember coming out of some place and having this hammer in my hand. I also found all this money in my pocket and I couldn’t remember where it came from. Then that is all I can remember until you all come to the house to arrest me. I had been to the bathroom and washed my face and hands and had all my clothes on except my jacket when you all came.” The statement continues in the form of questions and answers as follows: “Q. Ernest, were you drunk last night? A. I was drunk just about all day yesterday. Q. Can you read and write? A. Sure. Q. Are you sober at this time? A. Yes. Q. Ernest, we are now going to ask you if you killed Louise Davis at the Atlantic Sea Food at 1640 8th Ave.? A. I don’t know. Q. Ernest, did you rape Louise Davis? A. I told you I don’t remember what I done. Q. Ernest, when you came out of the Sea Food place did you notice whether you had blood on you or not? A. No, it was dark, I couldn’t see nothing. Q. Did you wash before you went to bed this morning? A. Yes. Q. Did you notice anything around your shorts or your penis when you washed this morning? A. No. Q. Ernest, when you walked into the Sea Food place did Louise say anything to you? A. I don’t know. Q. Do you remember having a brassiere in your hand when you came out of the Sea Food Place? A. I didn’t have nothing in my hand but a hammer. Q. Ernest, do you have any idea where you got this hammer you keep speaking about? A. It must have come from inside the place, cause I didn’t have one when I was walking down 8th Avenue. Q. Why did you go into the Atlantic Sea Food Shop? A. I remember I got to the door and something said go on in and when I walked in the heat just hit me in the face and I don’t remember anything after that. Q. Ernest, do you know Louise Davis? A. I didn’t know her personally. I just knew her well enough to speak to her on the street. Q. Have you been in the Atlantic Sea Food Shop many times? A. I never did go in there before last night. Q. Ernest, do you remember Louise scratching you? A. No, I don’t. Q. Do you remember being in the back room? A. No. Q. When you went in the Sea Food place, did you see anyone else in there besides Louise? A. I don’t know. Q. When you noticed the Wood on your jacket this morning, did you have any recollection of where it had come from? A. No. Q. Ernest, are you sure that you dropped the hammer in the alley behind Barnett School? A. No, I have\ thought about it and now I remember putting it in a garbage can in the rear of a house on the corner of the alley behind and below Hamilton’s Do-Nut Shop. Q. Ernest, I now show you a hammer and I ask you if this is the hammer that you put in the garbage can? A. It looks like it. Q. Ernest, what time did you buy the pint of whiskey on 9th Street? A. It was between 8:30 & 9:00 P. M. last night. Q. What time did you return to your sister’s at 1002 28th Street, after buying this whiskey? A. Around 10:00 P. M. Q. What time did you leave 1002 28th Street after drinking this whiskey? A. Around midnight.” (Italics supplied.) The statement, including the questions and answers, is signed by the defendant, Ernest Stevenson; Witnesses: B. T. Tomlinson and D. E. Salyers; and subscribed and sworn to before a notary public.

The defendant, in his formal statement, described the garbage can in which he had placed the hammer with such accuracy that two police officers found it at 821 13th Street without difficulty. Detective Don L. Salyers, in his testimony on direct examination, stated: “. . . Me and Sgt. Tom-linson left headquarters and went to an address on 13th Street and a lady by the name of Mrs. Powers, at 821, 13th Street lived there and we walked in the back yard and Mrs. Powers was out back, on the back porch. We identified ourselves as police and told her briefly what we were looking for and what had happened and I took a piece of paper from my inside coat pocket after opening the garbage can, taking the lid off, and I could see the hammer and I picked up the hammer with a piece of paper and we come on back into headquarters and completed our statements, etc.” The witness was asked these questions and made these answers: “Q. You say that you found this hammer at Mrs. Power’s how did you know to look in that vicinity for the hammer? A. Well, the accused finally told us that he had thrown the hammer or placed the hammer in a garbage can in an alley between 8th and 9th Avenue below 13th Street and we finally pin-pointed and came to the conclusion it was the Southwest corner house in the rear of the southwest corner and we knew exactly where to go and find it. Q. Is that where you went and found it? A. Yes, sir. . . . Q. Now, Mr. Salyers, I will ask you if at that time when you found that hammer, did it contain on it any place any foreign substance? A. Yes, sir, it contained what appeared to me to be blood stains and as I recall it had hair or what appeared to be hair on it at the time.”

An expert witness for the State, qualified as such, testified that he had examined the blood on the defendant’s wrist watch, both shoes, pants, jacket, handkerchief, shorts and the hammer that was alleged to have been the weapon used to commit the homicide and had ascertained that all had human blood upon them. The handkerchief had been found in the pocket of defendant’s jacket, containing silver money which, with a few bills found in other pockets, amounted to $22.21. The hammer in question was identified by the owner of the establishment and by an employee thereof as being the same hammer that was under the counter of the Atlantic Sea Food Company, but which had disappeared some time between February 4 and eleven o’clock on the 5th of February.

As heretofore stated the body of the deceased was discovered about 11:00 a. m. on the morning of February 5th, the officers made inquiry in the vicinity and upon the basis of what they learned the defendant was arrested approximately thirty minutes later. The testimony of the three officers and the defendant as to what transpired when the car in which those four persons were riding stopped about fifty feet from the scene of the alleged crime will be stated in more detail under the assignment of error with regard to the admissibility of the alleged oral confession of the defendant made at that time. There was no objection to the written statement of the defendant which has heretofore been quoted verbatim.

This is the first syllabus point of State v. Bowles, 117 W. Va. 217, 185 S. E. 205: “In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state’s evidence is sufficient to convince impartial minds of the guilt of the accused beyond a reasonable doubt, though the evidence adduced by the accused is in conflict therewith. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done.” That syllabus point has been quoted with approval by this Court in the recent cases of State v. Milam, 142 W. Va. 98, 94 S. E. 2d 442, and State v. Spradley, 140 W. Va. 314, 84 S. E. 2d 156. In the opinion in the Spradley case there are twelve decisions of this Court cited in support of it. It is the opinion of this Court that the jury was justified in finding from this evidence beyond a reasonable doubt that the defendant was guilty of murder of the first degree.

The Court is also of the opinion that the alleged misconduct of the jury was not prejudicial to the defendant in the instant case. It appears by affidavit of the auditor of the Hotel Frederick, in which the jury was housed on the nights of September 20, 21 and 22, during the trial of the case, that the members of the jury were assigned rooms on four different floors of that hotel and that, during the time they were there: thirteen outgoing telephone calls were made from rooms occupied by seven of the jurors; television sets were in three of the rooms assigned to jurors; and, there was a radio set in every room. At the hearing in the Common Pleas Court, pursuant to the remand for that purpose by the Circuit Court of Cabell County, it was developed that: the jury was in custody of two deputy sheriffs each night; upon leaving the courtroom, and returning to the hotel, some jurors walked upstairs to their rooms, others took the elevator, in two groups, each group escorted by a deputy; the jury met in the lobby for meals; the deputies, each assigned to a room on a different floor would check lo see that the jurors were in their rooms between 10:30 and 11:00 p. m. and would then retire for the night; the jury was cautioned by a deputy not to use the telephone or to watch or listen to any newscasts; and five of the jurors assembled in the room of another to play “penny ante”, walking to and from their own rooms on the other floors unescorted. The jurors testified as to all of the telephone calls but one, stating that they had called their wives on various matters but did not discuss the case, as to all of which calls and the subjects thereof they were corroborated by their respective wives. One juror called a nearby drugstore for some necessary medicine which was delivered to his room. The one unexplained telephone call was made to the office of Eastern Airlines and it was admitted by the Hotel Auditor “that Gladstone 31311 could quite possible— or is somebody else’s call, having been made from the same room previously occupied by another person.” All jurors denied any discussion of the case whatever; denied seeing or listening to any newscasts; denied any misconduct; and testified that they considered themselves to be in the custody of the deputies at all times.

It is pertinent to consider the Acts of the Legislature with reference to the responsibility of the trial court and the sheriff with regard to the assignment of error as to the alleged misconduct of the jury dining the trial of the defendant. Prior to 1955 it was the law of this State that in all felony cases after a jury was empaneled and sworn they should be “kept together” until they agreed upon a verdict or were discharged by the court. However, the applicable section, Code, 62-3-6, was amended by the Legislature at the Regular Session of 1955 to provide in part as follows: “After a jury in a case of felony punishable by death is empaneled and sworn, they shall be kept together until they agree upon the verdict or are discharged by the court. In the case of felony in which the punishment cannot be death, the jury shall not be kept together unless the court, in its discretion, order it to be so kept together. . . .” Perhaps it is of significance to note that the people of this state at the general election of 1956 approved this proposed amendment to the Constitution of this State: “Regardless of sex, all persons, who are otherwise qualified, shall be eligible to serve as petit jurors, in both civil and criminal cases, as grand jurors and as coronor’s jurors.” The Legislature, at its Regular Session of 1957 further amended the provisions of Code, 62-3-6, to provide that “. . . After a jury has been empaneled no sheriff or other officer shall converse with, or permit anyone else to converse with, a juror unless by leave of the court. The court shall, in its discretion, determine the manner in which the jury shall be kept in custody by the sheriff or other officer or officers until the jury agree upon a verdict or are discharged by the court.” (Italics supplied.) This case was tried after the 1957 amendment. This is the first case in which this Court has passed upon the question of the improper conduct of a jury subsequent to that amendment. It is apparent that after the Constitutional amendment making women eligible for jury duty and the 1957 legislative amendment it was not contemplated that the jury be kept together by providing sleeping quarters for the jurors and the officer in charge of them in one large room. However, that does not mean that the former decisions of this Court as to what constitutes an improper separation or other misconduct of a jury are abrogated.

In the somewhat similar case of State v. Clark, 51 W. Va. 457, 41 S. E. 204, there was a separation of the jury and in that case six of the jurors were housed on one floor of a hotel and six on another floor. During the trial there were times when one or more of the jurors became separated from the others. But this Court in holding that there was no prejudice to the defendant said: “The judge of the court below having seen and heard all of these witnesses testify, had a far better opportunity to ascertain what the facts were and whether they were such as to prejudice the prisoner than this Court has and his finding in reference to that matter is entitled to great weight. Aside from that, nothing has been shown in all this testimony which is deemed to have been prejudicial.” In this case the trial court has found no prejudicial error and in that regard he is sustained by the intermediate appellate court, the Judge of the Circuit Court of Cabell County. This Court will not upon that assignment of error reverse such finding.

The assignment of error that has caused immediate concern to this Court is the question of whether the trial court committed reversible error in admitting the testimony of the police officers as to the alleged oral confession of the defendant. At the time of the alleged oral confession defendant was in a police cruiser of the City of Huntington with three police officers of that city. The first officer introduced by the state as a witness was Joe Coleman, who stated that he was a police sergeant, had been a member of the department for nineteen years and had known the defendant for “several years”. After the witness testified to the arrest of the defendant, this question was asked: “Q. All right, now did you go any place and take this defendant with you? A. We placed him in the patrol car and started down 8th Avenue and on the way down we decided to stop at the scene of the crime and take him in to view the remains at the Atlantic Sea Food Store and Detective Salyers stopped the car in about fifty feet of the place and we proceeded and started to take the defendant inside and he said what are you taking me in there for and Detective Tomlinson said don’t you want to go in there and he said I don’t want those people to look at me and Detective Tomlinson said why don’t you want to go in there, why don’t you want to go inside and he said I don’t want to go and Detective Tomlin-son asked him if he wanted to tell us about it and he said I will tell you what you want to know when we get to headquarters and Sergeant Tomlinson said no, you tell us now, did you do it, and he said, yes I did.” These further questions were asked of this witness and he made these answers: “Q. All right, what if anything did you then do? A. Took him to the police station to the Detective Bureau. Q. Now, did you have anything further to do with this case Sergeant. A. No, sir, other than the money was counted there. Q. That was all silver that you had taken from him? A. Yes, sir. Q. Were you there when it was counted? A. Yes, sir. Q. Do you recall how much there was? A. Counted the silver and the bills and there was Twenty-two Dollars and a few cents. Q. You found that wrapped in a handkerchief I believe you said in Stevenson’s jacket pocket? A. The silver was and I believe several bills were taken from another pocket. Q. All right, then did your connection with the case stop at that time? A. Yes, sir, it did.” There was no objection by counsel for the defendant to any question asked this witness. Counsel for the defendant then proceeded to cross-examine the witness and the cross-examination continued until the time came for adjournment of the court for that day.

On the next day the record shows that immediately after the formal opening of the court the following colloquy took place: “By Mr. Baker: Your Honor, at this time I want to make a motion. By the Court: All right. By Mr. Baker: At this time I would like to move that the evidence of the witness Joe Coleman in as far as it pertains to a statement that the accused made to him pertaining to his guilt of this charge be excluded from the evidence as that is in effect a confession and it does not comply with the rules covering the introduction of a confession in that he was not warned that any statement he made may and would be used against him or any of the other requirements on entering of a confession and for that reason I now move that the court strike that evidence from the record. By the Court: Overruled. By Mr. Baker: Exception.” It should be observed that neither at that time nor at any time during the trial did counsel for the defendant request the trial judge to hear testimony upon and determine, out of the presence of the jury, the issue of whether the alleged confession was voluntary or otherwise. The testimony of the two other officers who were present when the alleged oral confession was made was substantially the same as this witness.

Upon direct examination the defendant was asked these questions and made the following answers thereto: “Q. Now you heard the testimony here of a police officer, Ernest, concerning a statement that you made when they had you in their custody in front of the Fish Market? A. Yes. Q. Can you tell us what conversation took place on that occasion? A. After we left the house, after they put me in the car and left the house, they didn’t park in front of the fish market, they parked up the street and said come on, we are going to take you inside and I said what for and they said we got something we want to show you and I said I don’t want to see and he said how do you know and I said I don’t know what you want me to see and he said we will show you, come on with me, I am going to show you and I said, no, I am not going in there and he said are you going to tell us what happened, and I said tell what, nothing happened and he said, well come on, I am going to take you inside and he said you are going to tell me and I said tell you what, tell you about what and he said the murder and I said I don’t know anything about a murder and he said I am going to take you in and I said I don’t want to go in there with all those people standing in there like that and he said are you going to tell us about it and I said I will tell you what you want to know when we get down to the police station and he said no, tell me now and I said I will tell you what you want to know and one of them went inside and came back out and two were still in the car with me and they said something to me and I said I will tell you what you want to know when we get down there so the othér one said he is going to tell us and they brought me down to the police station. Q. Did you at any time say that you had murdered Louise Davis? A. Never did.”

As heretofore stated there was no objection to the testimony of Police Officer Coleman to the effect that the defendant admitted in the presence of the witnesses, Sergeant Tomlinson and Detective Salyers, that he had killed the deceased. Counsel for the defendant completed his cross-examination of the witness prior to the adjournment of court for that day, and the motion made by counsel for defendant on the following morning to exclude that part of Coleman’s statement relating to the oral confession has heretofore been quoted verbatim. After the motion of counsel for the defendant to strike the evidence of the witness Coleman pertaining to the alleged oral confession of the defendant was overruled, Detective Salyers was the next witness for the state. When Salyers reached the point in his testimony where he related the statement of the defendant that he had killed the deceased, counsel for the defendant interposed an objection which was overruled by the Court and the witness continued his testimony with regard to what transpired thereafter. The same procedure was followed when Detective Tomlinson testified to the statement of the defendant to the same effect. It is apparent from this record that counsel for the defendant were not surprised by the testimony of the witness Coleman as to the alleged oral confession made to him and other police officers. In his opening statement to the jury Mr. Russell Daugherty, the prosecuting attorney, stated: “. . . We will show you by the testimony of three police officers that when this man was taken to the scene of the crime he admitted to them that he had committed the murder and we will introduce to you at the proper time a statement taken by the police officers from this defendant in which you will see when the state has introduced the writing and you will see that he recites everything he did from the time he went into the store until the time he left with the exception for one brief lapse of memory or blackout which was of course was the time when the actual murder was committed. . . .”

The precise question thus presented is apparently one of first impression in this State although there is much authority elsewhere. In 102 ALR at page 605 there is an annotation dealing with the duty of a court to institute a preliminary investigation as to the voluntary or involuntary character of a confession. Beginning on page 633 is this statement: “The proper time for objection to an alleged confession is when testimony regarding the confession is offered in evidence, and the court need not grant a preliminary hearing on objection made at an earlier date. Of course, in order for the defendant’s request to be properly designated one for a preliminary examination, it must be made before the alleged confession is introduced in evidence, and a subsequent request for a so-called preliminary examination has been held ineffective.” In People v. Farmer, 194 N. Y. 251, 87 N. E. 457, the Court affirmed the judgment of conviction and upon the issue here presented stated: “The defendant also insists that the court erred in denying her the right to a preliminary examination of one of the witnesses before he testified to certain confessions alleged to have been made by her. The request to be allowed such preliminary examination was made after the sheriff had been fully and at length examined and cross-examined with reference to the confessions of the defendant, and it was not until the witness, giving his testimony at the time of the request, had been fully examined as to everything relating to the defendant’s confessions except as to statements made by her at the jail. ... In this case it appeared at the time when the request was made for a preliminary examination that it was not in fact preliminary to the confessions, but that the defendant’s confessions had been already heard by the jury, . .

In Davis v. State, 182 Ark. 123, 30 S. W. 2d 830, the Court held that it was incumbent upon the accused to request the Court, as a preliminary matter, to hear testimony as to whether a confession was voluntary or otherwise and that in the absence of such request it was not error for the trial court to permit the hearing of such evidence without a preliminary hearing in the absence of the jury. In State v. Davis, 34 La. Ann. 351, the Court held that “In the absence of timely objections from the accused, the court will not exclude evidence of an alleged confession, because preliminary proof was not offered, on the part of the state, to show that the confession was made freely and voluntarily. ...” The Court stated that a different rule would have a tendency to induce the accused to take his chances of an acquittal upon the evidence introduced without objection, and in case of conviction to obtain a new trial on the ground of erroneous rulings by the trial court on points not raised at the trial. In State v. Blodgett, 50 Or. 329, 92 P. 820, it was held that the trial court did not commit error in overruling the defendant’s motion to strike out testimony of a confession after it had been admitted without objection, and where no evidence of duress in obtaining the confession was shown. In the opinion, the Court said: “If defendant should have any reason to claim that the alleged confession was involuntary, he should present his objection when the offer is made, and, before the conclusion of the preliminary hearing, offer such testimony, if he has any, to support his objection and to rebut that offered by the state, or, upon his failure to do so, be precluded from thereafter objecting.” In State v. Maupin, 196 Iowa 904, 192 N. W. 828, 195 N. W. 517, the defendant was convicted of murder and the state had presented in evidence written confessions of the defendant without defendant’s counsel having the opportunity to examine the witnesses present at the time the confessions were made and the court, in affirming the judgment of the lower court, said: “The record does not disclose that defendant’s counsel requested the privilege of first examining the witnesses with a view to ascertaining the circumstances under which the confessions were made. The record shows, without question, that the confession was made eligible for the record before it was received. Also, counsel for defendant cross-examined the witnesses exhaustively.”

In Eberhart v. State, 47 Ga. 598, it was held that the trial court did not err in allowing confessions of the defendant to go to the jury without a preliminary examination and without proof that they were voluntarily made when during the trial no objection was made and the attention of the court was not called to the matter. The Court said: “We incline to think that, if objected to, it would have been the duty of the state to show the circumstances under which they were made, that the court might see if they were voluntary. But confessions are not illegal evidence, standing alone. ... It is the right of the prisoner to object to their coming in, unless the circumstances under which they were made also come in; but if he or his counsel fail to object, and the confessions go to the jury without any special inquiry as to the circumstances, he is not entitled to a new trial.”

Counsel for the defendant rely upon the decisions of this Court in State v. Zaccario, 100 W. Va. 36, 129 S. E. 763; State v. Brady, 104 W. Va. 523, 140 S. E. 546; and State v. Mayle, 108 W. Va. 681, 152 S. E. 633. The single syllabus point in the Zacearlo case is: “To render admissible evidence of an extra-judicial confession by an accused to one in authority, or some person acting under the apparent sanction of those in authority, it must appear that the confession was freely and voluntarily made and without previous inducements of a temporal or worldly character or in the nature of threats or intimidation, or some promise or benefit held out to the accused by which he may expect mitigation of punishment or to escape from the consequence of his crime.” It is stated in the opinion that the prosecution, over the objection of the defendant, introduced evidence of an alleged confession by the defendant shortly after his arrest to the jailor and arresting officer, without showing that it had been freely and voluntarily made. It was further stated in the opinion that the state should have shown by affirmative testimony as a condition precedent to the admission in evidence of the confession that it was not made under inducement of fear or favor. However, this sentence appears in the opinion: “The defendant denied the confession and stated, without contradiction, he was assaulted by the jailor for refusing to make any incriminating statement.” (Italics supplied.)

In the Brady case the evidence as to the admissibility of the alleged confession was heard by the Court in the absence of the jury previous to its introduction into evidence and the Prosecuting Attorney of Mineral County, the Prosecuting Attorney of Hardy County, a deputy sheriff of Hardy County and one James Welton testified that the confession was voluntarily made and “that no inducements were held out to him, no threats made to him, or offer of benefit of any character or in mitigation of punishment; that in fact it was freely and voluntarily made.” This Court, in refusing to disturb the lower court’s ruling that it was admissible, stated: “The real question in every case as to whether or not a confession is admissible is whether or not the confessing mind was influenced in any way to create a doubt as to the truth of the confession; and over this doubt or question the trial court has a wide discretion, and this discretion will not ordinarily be disturbed on review.” The judgment of the Circuit Court of Hardy County sentencing Brady to death for rape was affirmed.

In the Mayle case an alleged confession of the defendant was admitted in evidence although in the opinion the Court said: “It is true that the prisoner has stated that he would not have made this confession if he had not been induced to do so by threats and acts of violence on the part of the officers. The officers all unite in denying the use of any threats or violence. Both court and jury have determined this fact contrary to the prisoner’s contention.” The officers denied that any force was used to secure the confession but a member of the Department of Public Safety admitted that he did tell the defendant that “it was best to tell the truth”. In commenting upon that question the Court made these pertinent statements: “Did this render the confession inadmissible? There are authorities which in a measure so hold because of the presumption that, under all the circumstances of the particular case, the party in making them was influenced by the admonition made. However, there is a great line of cases holding to the contrary. The latter proceed on the theory that where the prisoner is advised to tell the truth, it cannot be supposed that he would be induced thereby to confess to a crime of which he is really innocent. The real question being whether there has been any threat or promise of such nature that the prisoner would likely tell an untruth for fear of the threat, or hope of profit from the promise. State v. Goldizen, 93 W. Va. 328, 116 S. E. 687. So, if what is said to the prisoner has no tendency to induce him to make an untrue statement, his confession is admissible. 3 Russ. on Cr. (5th Ed.) 442. But as we have shown, each case must be viewed in its own setting to determine the question. For this reason it would serve no useful purpose to attempt to review or reconcile the cases, pro and con, if it were possible.”

In State v. Goldizen, 93 W. Va. 328, 116 S. E. 687, this Court held that a confession made to a prosecuting attorney, police officer or other person in authority was admissible in evidence against him if voluntarily made. State v. Morgan, 35 W. Va. 260, 13 S. E. 385, and several Virginia cases are cited for this statement in the Goldizen opinion: “It is well settled by the decisions of this state and those of Virginia that a confession may not be given in evidence if it appears that it was obtained from the accused by some inducement of a temporal or worldly character in the nature of a threat, or some promise or benefit held out to the accused by which he may expect to escape from the consequence of his crime, or mitigation of punishment, by some one in authority or by some person with the apparent sanction of those in authority.” This is the single syllabus point of the case: “A confession of the accused is admissible in evidence where is appears that it was made to the prosecuting attorney and sheriff without any inducement of a worldly or temporal character in the nature of a threat, promise or benefit held out to him by them in respect to his escape from,, or mitigation of, his punishment. Information from them to him that a confederate in the crime had confessed and placed the guilt on the accused, unaccompanied by any threat, inducement or promise of benefit by which he could escape from, or receive diminution of, punishment from the consequences of the crime will not render the confession inadmissible.” Judge Lively, who wrote the opinion for the Court, made this interesting observation: “The reason for excluding confessions fails in the case at bar. Greenleaf lays down the proper test as follows: ‘The only proper question is, whether the inducement held out to the prisoner was calculated to make his confession an untrue one. He further says that the spirit of extreme caution and liberality toward accused persons has resulted in many rulings not to be defended upon principle; but the tendency in law courts today is towards repudiating the most extreme of these rulings of the first half of the nineteenth century, and to approximate toward the use of the test above quoted. Greenleaf on Evidence, Vol. 1, sec. 219. In Baldry’s Case, 2 Denison’s C. C. 430, Justice Erie says: ‘According to my judgment, in many cases where confessions have been excluded, justice and common sense have been sacrificed, not to the shrine of mercy, but to the shrine of guilt.’ ” In the Morgan case .this Court held that a confession made to a private detective with no authority to make promises, of help or immunity, was properly admitted in evidence.

In State v. Richards, 101 W. Va. 136, 132 S. E. 375, Richards and two other defendants were convicted of murder of the first degree and sentenced to imprisonment in the penitentiary for the period of their natural fives. In that case the Court held in the fifth point of the syllabus that a confession made to a public officer would not' render it inadmissible if freely and voluntarily made without any threats or intimidations or promises of reward or immunity from punishment for the crime. It was again' held in that case that: : . it devolves upon the court in the first instance to determine whether the confession of the accused was freely and voluntarily made, or was under duress and threats, or by inducement made or held out by some one in authority, of benefit or reward of a worldly or temporal character respecting his escape from, or in mitigation of, his punishment.” The Court held that the burden of showing the qualifying facts respecting a confession of guilt is upon the state, but where the trial court has determined from the evidence that the confession is admissible, “the appellate court will not disturb the judgment when supported by the evidence, though there be conflict therein; for in the end the question of the weight and sufficiency of the evidence to sustain the truth and verity of the alleged confession passes to the jury, who become thereby the final triers of the facts, and of the weight they will attach to such confession.” It was further stated in the Richards opinion: . . The rule as stated in 16 C. J., p. 720, § 1474, is that: ‘A confession is not rendered inadmissible by the mere fact that it was elicited by questions put by public officers or others, even though the questions assumed the prisoner’s guilt, and although they were roughly asked; but the fact of interrogation may be taken into consideration in determining whether or not the confession was voluntarily made, and sometimes it, in connection with other circumstances, is sufficient to exclude a confession as having been made involuntarily,’. . .

There are many other cases, in this jurisdiction and elsewhere, dealing with admissibility or inadmissibility of confessions but, as was stated in the Moyle case, . . each case must be viewed in its own setting to determine the question. . .” and none of the cases heretofore cited reach the precise point involved herein. In the instant case the defendant categorically denied making any confession whatsoever. It is true that in the Brady case, the defendant denied having made any statement whatever, but the trial court had, on a preliminary examination in the absence of the jury, held the purported confession to be voluntary and admissible. This Court, without further comment with regard thereto, noted: “The inconsistency of these two positions of the prisoner regarding the confession is apparent.” No other case is found in West Virginia touching this point and little authority is available elsewhere. However, in People v. Hegovic, 348 Ill. 58, 180 N. E. 561, the Court stated: “The claim of the plaintiff in error was, not that he was beaten and forced to make an involuntary confession but that he made no confession. It is claimed that, although the defendant testified that he had made no confession, the court erred in receiving evidence showing the confession after the plaintiff in error had testified on the hearing, apart from the jury, that he had been beaten by police officers, without hearing the police officers whom he charged with the offense of beating him. On the question whether or not the defendant made any confession, the fact that he was beaten has no direct bearing and evidence of such fact is not admissible on that question. . . .” The Court thereafter held that where the defendant denies having made any confession, the prosecution in such case is required to prove only that a confession was in fact made and there is no necessity for a preliminary hearing as to its voluntary character. In People v. Rose, 22 Ill. 2d 185, 174 N. E. 2d 674 (1961), the second syllabus point is as follows: “Where defendant, in a prosecution for illegally selling narcotics, specifically denied making oral admissions to arresting officers at the time of her arrest, it is not error for the trial court to admit testimony by the arresting officers that defendant had made oral admissions to them, as her outright denial that any admissions were made merely presented the jury with a simple question of fact as to whether any admissions had in fact been made.” In the opinion the Court stated: “. . . Where a defendant denies making any statement, a simple question of fact is presented as to whether the statement was made and the trial court is not required to determine whether it was voluntarily made.” Of similar import is the case of Robinson v. State, 138 Md. 137, 113 A. 641.

The defendant was entitled to have the jury instructed with regard to his theory of the case and the Court gave every instruction offered by him upon the question of whether he made the confession to police officers as they testified, or did not make it as he stated from the witness stand. It is true that no instruction was offered upon that specific question but the Court did give defendant’s Instructions Nos. 7, 8 and 16, which are respectively set forth below:

“The Court instructs the jury that if they find there is a conflict in the evidence in this case on any fact or circumstance tending to establish the guilt or innocence of the defendant, a part of which is in favor of the theory of the State and a part is in favor of the theory of the defendant, and the jury should entertain a reasonable doubt as to which is true, then it is the duty of the jury in arriving at their verdict to adopt the evidence, theory and conclusion most favorable to the accused.”

“The Court instructs the jury that in arriving at a verdict in this case they are the sole and exclusive judges of the evidence and the credibility of each and every witness introduced in this case; that the jury has the right to disregard the testimony of any witness, or witnesses, who in the opinion of the jury have testified falsely in this case, or to give to the testimony of any witness, such weight as in the opinion of the jury the same may be entitled to under all the circumstances of this case, and in ascertaining such weight the jury may take into consideration the character, motive, or anything else surrounding the witness, or his testimony, as disclosed by the evidence and circumstances in the .case; that in passing upon the credibility of witnesses they may take into consideration the reasonableness or -unreasonableness of their statements, their apparent bias or prejudice, as well as their interest in the outcome of the case, if any, as well also as their intelligence or lack of intelligence and their demeanor while upon the witness stand and from these and other facts and circumstances appearing in the case, the Jury may give the evidence of any witness or witnesses only such credit as the jury may think such testimony entitled to, because the Jury is the sole judge of the evidence, as well as the credibility of the witnesses who testify in the case.”

“The Court instructs the jury that the defendant, Ernest Stevenson, had the right to testify in his own behalf, and the jury have no right arbitrarily to disregard or disbelieve his evidence in whole or in part merely because he is on trial charged with crime, but it is the duty .of the jury to weigh and consider his evidence the same as that of any other witness, and give to his evidence such weight and credit as they think the same is entitled to, and to weigh his evidence under the same rules as they weigh the evidence of other witnesses testifying in this case.”

It is the opinion of this Court that when Officer Coleman was permitted to testify without objection to the oral confession of the defendant, counsel for the defendant proceeded to cross-examine him without objection or request for a preliminary hearing upon the admissibility of the oral confession and, at no time during the trial asked the trial court to hold a preliminary hearing in the absence of the jury to determine the admissibility of the confession, that the trial court committed no error in refusing the motion to strike the testimony of Coleman with regard thereto or in overruling the objection to similar testimony by Salyers and Tomlinson, inasmuch as it is clear from the testimony of these three witnesses that the alleged confession was not made under duress or threats or by any inducement made or held out to the accused by either of the officers present of any benefit or reward of a worldly or temporal character, or in mitigation of punishment. The testimony of the defendant as to what transpired at the place where he was alleged by the police officers to have made the oral confession is free from any contention to the effect that these officers attempted to secure a confession from him by any “inducement of a temporal or. worldly character in the nature of threats or intimidation, or some promise of benefits held out” to him by which he could have expected mitigation of punishment or to escape from the consequences of his alleged crime. Police officers investigating a crime, especially one as serious as the murder of Louise Davis, were within their rights in requesting the defendant to go with them to the scene of the crime if they did not use or attempt to use any physical force hpon him or make any threats to do so. Assuming that the officers did request the defendant to leave the police cruiser and go into the fish market, that is not the type of threat or inducement that is sufficient to render his alleged confession involuntary. Furthermore, as heretofore stated, the defendant denied making any confession to the officers. If this or any other court should adopt an invariable rule that it is reversible error to admit in evidence a confession, oral or written, of a defendant even though his counsel did not object thereto, and especially where the defendant later in his testimony, denied having made such statement, it would be difficult if not impossible for a trial court to prevent the injection of reversible error into practically every criminal case in which the state sought to introduce such testimony.

This Court finds no error in the order of the Circuit Court of Cabell County in affirming upon writ of error and super-sedeas the judgment of the Common Pleas Court of Cabell County and therefore that order is affirmed.

Judge Given participated in the decision of this case, indicating he would dissent from the holding herein, but died previous to the preparation and pronouncement of this opinion.

Affirmed.