State v. Willis

41 A. 820, 71 Conn. 293, 1898 Conn. LEXIS 104

• Court: Supreme Court of Connecticut
• Decided: November 29, 1898
• Status: Published

Opinion

Hamersley, J.

The statement made by the accused was admissible as a declaration against his interest. “Declarations of a party against his interest are always admissible in evidence.” Ives v. Bartholomew, 9 Conn. * 309, * 312. They are not admitted as testimony of the declarant in respect to any facts in issue; for that purpose they are open to the objections to hearsay evidence. They are admitted because conduct of a party to the proceeding, in respect to the matter in dispute, whether by acts, speech, or writing, which is clearly inconsistent with the truth of his contention, is a fact relevant to the issue. A party cannot ordinarily prove his own conduct in support of his contention, because he might thus manufacture evidence in his own behalf; but there is a presumption that he will not make evidence against his interest.

The probative force of such declarations must depend on the circumstances of each case. They may have little, if any, weight, or, in connection with other evidence, they may amount to convincing proof. The laws of evidence apply equally to civil and criminal cases, subject to a-very few exceptions. Justice Stephen said: “I know of only four rules of evidence which can be said to be peculiar to criminal proceedings.” 1. The prisoner and his wife are incompetent witnesses. (The same rule of interest, however, excluded in civil cases.) 2. The rules relating to evidence of confession. 3. The rule respecting dying declarations. 4. Evidence as to character of accused. 1 Steph. Gr. L. 439. It will be found that the peculiarities of evidence in criminal law are not doe so much to any departure from the settled law of evidence, as to the application of that law to conditions found only in criminal practice. The axioms that define the methods by which truth can be most effectually ascertained, are the same in all cases. So the rules referred to, relating to evidence of confessions, were not intended to deny the self-evident fact of the probative force of declarations against interest, nor to forbid its application in criminal cases, but simply to regulate its application to conditions peculiar to a criminal trial. These conditions axe the liability of accused persons after their arrest, upon promise of favor from those having control of the prosecution, to untruly admit guilt or misstate criminatory acts for the purpose of securing immunity through the promised favor; and the liability of inferior police officers to report untruly or inaccurately the chance expressions or conversations of prisoners in -their charge. In criminal practice the judge ascertains the circumstances under which the declaration was made, and, if made under certain circumstances, excludes the evidence, not as irrelevant, but as unreliable and immaterial. But if it clearly appears that the declaration, or any part of it, in connection with other evidence, is in fact both reliable and material,—as when the accused tells where the instruments or product of a crime are to be found, and they are shown by other evidence to have been found and identified in pursuance of the information,—the information is admitted, no matter under what circumstances it was made. Regina v. Gould, 9 C. & P. 364. The rule of practice as to the exclusion of confessions is one that admits of great variety in application. Steph. on Ev. p. 52.

The rules of application referred to by Justice Stephen did not come to us from the English common law; they were developed in England after our independence, from the general proposition that “ confessions ought to be voluntary and without compulsion.” 1 Steph. Cr. L. 447. This proposition expresses a well established principle of evidence; it applies to admissions as well as to contracts, or to any act whose probative force depends on intent or assent. If the voluntary mental condition which should characterize the act does not exist, either through the compulsion of duress or the temporary aberration of intoxication, or from other cause, the evidential significance of the act is destroyed. For this reason any admission compelled by the torture of violence or compulsion of duress is inadmissible; State v. Hobbs, 2 Tyler, 380; Tilley v. Damon, 11 Cush. 247; Com. v. Morey, 1 Gray, 461; just as a contract entered into under the same circumstances is void; while an admission secured by fraud which does not touch the voluntary character of the act, is admissible. Rex v. Derrington, 2 C. & P. 418.

It is very necessary to a clear understanding of the course of decisions on this subject, to distinguish between that compulsion which may destroy the significance of an evidential fact, and the use of force to compel a person to testify against himself. The maxim “Nemo tenetur seipsum acensare” expresses a personal right, whose recognition in the administration of justice is peculiar to the common law and deemed by us of sufficient importance to receive the protection of constitutional guaranty. But this right is a purely personal one, and involves exemption from a compulsory disclosure of one’s crime, when called upon to testify upon one’s own trial or in any legal proceeding. The secrets of each man’s heart are his own and cannot be forced into expression. Violence applied for that purpose is held to be an infringement of personal liberty. But the testimony of an accused is legitimate (unless excluded on the ground of interest) and is never excluded merely because the witness expects a benefit.

The only instance in the nature of testimony by an accused on his own trial, known to the common law, is confession in open court, i. e., plea of guilty, which is conviction. The confusion of such “ confession ” with admissions which are not testimony, but are proved as an independent fact which may be relevant to the general issue of guilt, or to some particular fact in issue, is responsible for much uncertainty. The two are absolutely distinct. This common law “ confession ” is practically the testimony of the accused given in open court, going directly to the facts charged, conclusively proving those facts, and sufficient of itself to support conviction.

An admission of the accused which may be proved as relevant to any fact in issue, is not testimony; it is a fact to be proved by testimony; it may tend to prove the main fact in issue, but is not competent to prove that fact and cannot of itself support a conviction. There are some cases which seem to favor the theory that an uncorroborated admission can justify conviction; but examination shows that in most, if not all of these cases, there was other evidence, and the theory is repugnant to the firmly established principle that the essential elements of a crime must be proved by witnesses in court testifying of their own knowledge.

It is difficult to conceive of a “ confession ” that is not induced by a sense of interest; and the common law directly recognizes confessions procured by the official promise of benefit. Confession is simple, i. «•., plea of guilty; or relative, i. e., in order to attain some other advantage. Relative confession is where the accused confesseth and appealeth others thereof, thereby to become an approver. 2 Hale P. of C. Chap. XXIX. If upon this appeal the approver is successful, he receives pardon, if he is not successful he is convicted upon his confession, that is, upon his testimony against himself ; and this testimony has not been obtained by force because it was given under a conditional promise of immunity. The law of approvers is obsolete; but the principle is illustrated to-day, when the public prosecutor offers to put an accused upon the stand, under an implied promise of pardon if he testifies fully, and then, if the accused acts dishonestly, procures his conviction upon the testimony so obtained. Com. v. Knapp, 10 Pick. 477, 478; Moore's Case, 2 Lew. C. C. 37. Of course, such evidence as against an accomplice is of a suspicious character and needs corroboration, but the point now is that such testimony against one’s self is not compelled, but is legally voluntary when induced by official promises of favor. Indeed, it is matter of almost daily experience in criminal courts that testimony of the accused against himself by a confession in open court upon which conviction is based, is induced by promises, directly or indirectly obtained from the prosecuting officer, of favor in the matter of punishment. And such action of the prosecuting officer, when prudently taken, the accused having advice of counsel, is approved by the court. But if the constitutional provision that no accused person shall be compelled to give evidence against himself, includes the compulsion of personal benefit, then every one so convicted should be discharged. It would, in truth, be a violation and not a protection of personal liberty, to prevent one from testifying when he believes it to be for his interest. And yet we find dicta of judges that not only favor such an impossible latitude, but apply this provision against enforced self-criminating testimony to the considerations determining the weight belonging to evidence given by others in respect to the conduct of the accused. Such dicta would never have been uttered, had the radical distinction between the proof of conduct of a party as a relevant fact, whose weight may be greater or less according to the surrounding circumstances, and the use of .force to compel a person to testify against himself, been kept in mind.

The English decisions which have developed the existing practice in excluding admissions, are not concerned with their admissibility as relevant, but mainly if not wholly with their weight. And the word “voluntary” is used, not merely as contrasted with compulsory, but with a technical meaning indicating certain surrounding circumstances. The question is, shall this evidence, admissible as relevant, be excluded, because in the opinion of the judge the conditions of the declaration come within those conditions that make such an admission too unreliable to go to the jury; and the decisions illustrate the diverse exercise of this judicial discretion. The earliest of these cases were decided about 1783, and in these the court was evidently influenced by a desire to use its power in behalf of the prisoner. It was during the flood tide of the bloody code of England, when every conscientious judge was moved to strain his power to escape its ruthless results. This is indicated in Thompson’s Case, 1 Leach C. C. 291. The declaration was objected to because made under circumstances calculated to induce the accused to say an untruth for the sake of personal safety. The court said: “ It is almost impossible to be too careful on this subject. ... I must acknowledge, that I do not like to admit confessions, unless they appear to have been made voluntarily, and without any inducement. Too great a chastity cannot be preserved on this subject; and I am of opinion, that under the present circumstances the prisoner’s confession, if it was one, ought not to be received.” After this followed a great number of »w* prim rulings; for the most part reported with uncertain brevity. .They are contradictory; some of them grotesque in their unreason. Finally they came to be regarded as precedents for testing the character of inducements by technical meanings given to certain forms of words. An effectual stop was put to this tendency in 1852, by the appellate court for crown cases reserved, in Baldry’s Case, 2 Den. C. C. 430. In this case Pollock, C. B., said (p. 441) that the grounds for not receiving confessions are not “ that there is a presumption of law one way or the other,” but “ because it is supposed that it would be dangerous to leave such evidence to the jury.” Parke, B. (p. 445), intimated a doubt whether “ it would not have been better to have allowed the whole to go to the jury,” and said: “ I confess I cannot look at the decisions without some shame when I consider what objections have prevailed to prevent the reception of confessions in evidence; ” and, referring to the experience of his associates, “ we all know how it occurred. Every judge decided by himself upon the admissibility of the confession, and he did not like to press against the prisoner, and took the merciful view of it.” Earle, J. (p.446), said: “According to my judgment, in many cases where confessions have been excluded, justice and common sense have been sacrificed, not at the shrine of mercy, but at the shrine of guilt.” Since Baldry's Case, the decisions have been very different from the earlier ones. The old theory of a form of words being decisive as to the effect of an inducement, was distinctly denied in Queen v. Jarvis, L. R. 1 C. C. R. 96, 99, and Queen v. Reeve, ibid. 362.

The English decisions which have developed this practice are not binding as authority in American States which have adopted the English, common law existing at the time of our separation; but they have been largely followed, and decisions in the State courts exhibit something of the same contradictions and changes. In Massachusetts the more reasonable theory of modern English decisions prevails. Com. v. Knapp, 9 Pick. *496, 502; Com. v. Morey, 1 Gray, 461, 462; Com. v. Howe, 132 Mass. 250, 260. In Pennsylvania the common sense view was early adopted. The hope of benefit which actuates every confession is not of itself sufficient to exclude. “The true point of consideration, therefore, is whether the prisoner has falsely declared himself guilty of a capital of-fence.” Com. v. Dillon, 4 Dall. 116, 118; Fife v. Com., 29 Pa. St. 429, 436.

In some States the matter has been regulated by statutes. If it is sound policy to exclude from evidence any class of statements made to officers, it would doubtless be far better to regulate by statute the conduct of officers, excluding all statements resulting from any violation of the statute, and to leave admissions to be controlled in every other particular by the general law of evidence. The subject has been somewhat complicated with the effect of testimony given by persons suspected of crime, in examinations by members of the privy council under a common-law power in cases of treason and by justices of the peace under the statutes passed in the reign of Phillip and Mary. Similar statutes have been passed in some of our States. A study of the law in respect to such examinations does not alter the conclusions we have reached.

In this State it has been the practice to exclude statements of the accused made to an officer, when they have been induced by promises of favor made by the officer in respect to the prosecution. This practice was recognized in State v. Potter, 18 Conn. *166, *178. The opinion discusses some of the early English cases, but cannot be regarded as investing them with authority. It maintains the theory that the inquiry “ is addressed to the discretion of the court.” Indeed it is impossible to reconcile the necessary diversities of the practice of occasional exclusions of admissions, upon any theory (where the surrounding circumstances do not show duress), unless it is regarded as an exercise of the power of the court involving a duty to exclude testimony prima facie relevant, when satisfied that it is worthless and unfair to the prisoner. When the English courts first began to exclude admissions, it was evidently an exercise of the power of the court to secure fair play for the prisoner; the same power has been used by some great judges in permitting the accused to make an explanatory statement, although the law forbade Ms appearing as a witness. The discretion of the judge in receiving a confession is, however, reviewable, because a question of duty is involved, and a clear case of abuse would furnish ground for a new trial. That trial courts have acted wisely in this matter is evident from the fact that for more than a hundred years only a single case has come to this court for review..

In the case at bar the admission was made in the presence of the sheriff, after the accused had been duly warned; no claim is made that it was inadmissible by reason of anything that took place at the time. But counsel for the accused urge in support of their tMrd reason of appeal, that the admission was induced by promises of the detective who brought the prisoner from Columbus, Ohio, to New York, where he was placed in the hands of the sheriff. We assume that the admission would and should have been excluded, had it been made to the detective. It was not so made, but was made to superintendent Diehl in the presence of the sheriff, a few hours afterwards. The accused claims that where inducements are held out by one officer and shortly afterwards an admission is made to another, it must be held as a matter of law that the subsequent admission was caused by the prior inducement. This is clearly not so. “ It is not to be presumed that, if one officer makes threats or promises, their influence will lead the prisoner to accuse himself falsely to another officer.” Com. v. Cuffee, 108 Mass. 285, 288; Moore v. Com., 2 Leigh, 701. Even when the promises induce a confession, a second confession, found not to be under the influence of the former promises, is admissible. Rex v. Clewes, 4 C. & P. 221; State v. Howard, 17 N. H. 171, 183; State v. Carr, 37 Vt. 191, 195; Regina v. Cheverton, 2 F. & F. 833; Com. v. Howe, 132 Mass. 250, 260.

Whether the admission was or was not induced by the prior promises, is a collateral question of fact on the evidence. Regina v. Cheverton, State v. Carr, supra; State v. Squires, 48 N. H. 364, 368. u The principle is well settled that where the admissibility of evidence depends upon a preliminary question of fact, to be tried by the court, its decision is not to be reversed unless in a case of clear and manifest error.” Fife v. Com., supra, p. 437. Here the trial court bas found upon tbe evidence tbat the admission of the accused was not made by reason of the prior inducements, but was freely and voluntarily made, knowing that it might be used against him. The whole of this evidence does not appear in the record, but enough appears to indicate that the accused placed no reliance on the talk of the detective; but did rely on the statement made or authorized by the sheriff, and in view of that statement made his admission, as he says, “ unconditionally.”

The confession was properly admitted, but it remained for the jury to give it such weight as they might think it merited, in view of all the circumstances which led up to it. They could not found a conviction upon it, unless satisfied beyond a reasonable doubt that, in connection with the direct evidence of the crime, it spoke the truth. The accused has not excepted to the charge of the court, and it must be assumed that in regard to this, as well as to all other points, it was adequate to the nature of the case.

The fourth reason of appeal assigns error in admitting a declaration made to the sheriff just after the declaration to Diehl had been made. It consisted in a statement that the . accused had pawned the watch taken from the murdered man, at a described pawn-shop in Philadelphia, and was offered in connection with evidence identifying the watch and proving that it was found in pursuance of the statement of the accused at the place described. This declaration was admissible, no matter what promises had been previously made. Laros v. Com., 84 Pa. St. 209; Com. v. Knapp, 9 Pick. *496, *511; Com. v. James, 99 Mass. 438, 441; Regina v. Leatham, 8 Cox C. C. 498, 503; Regina v. Gould, 9 C. & P. 364; Duffy v. The People, 26 N. Y. 588, 590; 2 Swift’s Dig. 434.

The first and second reasons of appeal are not based upon the record. The court did not refuse permission to the defendant to testify, and did not refuse to give the defendant an opportunity to produce the detective, Crouch; on the contrary, the court received a statement prepared by the accused containing his own account of the transaction, and precisely what he claimed the detective, Crouch, would testify to if present, and this statement was received by the court with the consent of the State’s Attorney and of the accused, as the testimony of Crouch and of the accused. With this action, so plainly in his interest, the accused was satisfied, and did not afterwards ask to be called as a witness, and did not ask for an adjournment in order to find the detective, Crouch; we do not mean to intimate that a refusal to adjourn under the circumstances would have been error.

The fifth, sixth and seventh assignments of error furnish no ground for a new trial. .

The opinions formed by the jurors challenged were not settled opinions, such as imply, a prejudice from being committed to one side of the question; nor were they formed in such a way that hostility or prejudice against the prisoner may be inferred from their existence. The law on this subject was settled in State v. Wilson, 38 Conn. 126, 138. We said in that case, speaking of opinions like those now claimed as disqualifying: “ They had their origin in no relationship, partiality or prejudice, but from reading an ordinary statement of the circumstances attending the killing, for aught that appears impartially obtained, and candidly stated in the newspaper, and those opinions, impressions, or suppositions, received no tincture of prejudice from any other source. For various reasons we are satisfied that such opinions should not in theory, and do not in fact, incapacitate a man from sitting as an impartial juror.” See also State v. Potter, 18 Conn. *166, *172; State v. Smith, 49 id. 376, 378. Of course, an opinion of this kind may be said to be one that will require evidence to remove; as long as the hypothesis which led to the opinion is unchallenged, the opinion will remain. But it is not one which requires evidence to remove, in a sense that implies any partiality; and is very different from an opinion so fixed as to require evidence to remove a prejudice against a prisoner, before the juror can hear and weigh the testimony fairly. It is possible that reading- a newspaper account of a crime may produce a settled opinion which in fact renders one partial, prejudiced and unfit to be a juror; but common experience tells us that such a result is not the usual one. In this case the court below has found that the jurors challenged were not prejudiced by reading the newspaper; we think the finding is fully justified by their examination. There is no error in the judgment of the Superior Court.

In this opinion the other judges concurred.

Prior to the argument Mr. Pessenden moved that certain statements in the brief of counsel for the accused, alleged to be quotations from the stenographer’s notes, might be eliminated, upon the ground that they formed no part of the official record and had been refused a place therein by the trial judge upon application of defendant’s counsel. After a brief consultation the court granted the motion and struck out the objectionable statements. Bepobtkb.