A foul murder was committed when two colored men entered the shop in Tampa of Nick the Tailor, struck an elderly clerk dead with a concrete block which one of them concealed in a sack, rifled the cash register, and fled.
A majority of this court entertain the view, however, that the judgment finding the appellant guilty cannot stand because of the manner of obtaining his confession. There is grave doubt that there could have been a conviction without this testimony of the defendant against himself, and, in any event, it cannot be said that allowing it to be considered by the jury was harmless error. Inasmuch as we believe the circumstances surrounding the confession were infected with want of the freeness and voluntariness so long and so often recognized by this and other courts as elements indispensable to competency of a confession, we shall confine our remarks to this particular phase of the State's case against the appellant. In gauging the propriety of the methods employed to procure the statement we shall resort solely to the State's own witnesses and ignore the testimony offered by the appellant in refutation.
Shortly after the homicide a city detective was driving along the street when he spied appellant, stopped at the curb, and halted the appellant without telling him why he was accosted. Upon being asked where he was going, the negro replied that he was going home, and gave the officer the correct address. The detective opened the door to leave his car, whereupon the appellant ran, and the officer fired at him. Seven or eight minutes later this detective, after calling for police cars to surround the house, went to the address given him, where the appellant was found unafraid, "unconcerned," and "perfectly calm." He was then placed in custody without warrant and was transported to the police station. This occurred about midnight.
About two o'clock in the morning began the inquisition which culminated in the alleged confession and which lasted all through the night until noon of the following day. Interrogators were three: the officer who apprehended the appellant, another detective, and the chief of detectives. All were armed.
They ranged in height from five feet eleven inches to six feet two inches, and in weight from 199 to 220 pounds. The prisoner, aged twenty-one or twenty-two, was five feet ten inches tall and weighed 135 or 140 pounds.
The examination was continuous and incessant for ten hours. One officer estimated that he asked the appellant five hundred or seven hundred questions, and he said the questioning was persistent, and appellant, at least for a time, was completely surrounded by the officers in the place they had chosen for the inquest. One of the officers was present the full period, one for two hours, and one for three and one-half hours. At eleven o'clock a meal was brought to the prisoner and served him, but evidently without any recess in the examination.
At some time or other during this investigation, but before the supposed confession, one of the detectives took the appellant, handcuffed, out in a car, ostensibly to interview persons who the prisoner said knew his whereabouts the night before the crime was committed. During this trip the officer decided he wished to see the body of the victim; so he took appellant with him to the undertaker's establishment, where both viewed the remains. The purpose of the visit, so the detective said, was "to see just where he [the victim] was hit, and just where the wounds were," although he admitted he "knew how it [the crime] was committed." Why it was necessary or expedient to make his visit to the undertaker's at this particular time, while he had the appellant in custody, or why he should have been accompanied by the appellant when the investigation was still in progress and no admission of guilt had been made, is not explained.
Even then the defendant did not confess any part in the crime.
Then appellant's mother was brought to the police station. What connection she had with the transaction we are unable to determine from the record, and we cannot remark upon the motive for detaining her and putting her in a cell without digressing from the testimony of the State, to which we said at the outset we would confine our comment.
We close this narrative with the quotation of a significant statement of the chief of detectives, who said: ". . . he emphatically denied it [any connection with the crime] until that afternoon when his mother came in and I talked to her in his presence."
Of course the basic principle governing the admissibility of confessions is imbedded in section 12, Declaration of Rights, of the Florida Constitution where the following language is found: "No person shall be . . . compelled in any criminal case to be a witness against himself . . ." This identical phraseology appears in article five of the amendments of the Constitution of the United States. Inasmuch as the right defined and safeguarded in these portions of the Constitution is not a fundamental one or a privilege or immunity forbidden by the Federal Constitution, in the Fourteenth Amendment, to be abridged by a state, John D. Jack, v. State of Kansas,199 U.S. 372, 26 S.Ct. 73, 50 L.Ed. 234, 11 Am. Jur., Constitutional Law, page 1106, we shall deal first with the question in the light of the inhibition in our own Bill of Rights, then remark upon this guarantee as it is viewed by the Supreme Court of the United States under another provision of the Fourteenth Amendment of the Federal Constitution.
The protection is personal to the witness, or the accused, and may be waived by him. This he may do by a free and voluntary disclosure of guilt, but no such waiver can result unless from the attendant circumstances these ingredients are present. See Ex parte Senior, 37 Fla. 1, 19 So. 652. It is not left to the witness to determine whether any confession he has made is admissible, but this mixed question of law and fact is decided by the trial court in the absence of the jury. If the confession is held to be admissible the jury then passes upon its credibility. Nickels v. State, infra.
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A foul murder was committed when two colored men entered the shop in Tampa of Nick the Tailor, struck an elderly clerk dead with a concrete block which one of them concealed in a sack, rifled the cash register, and fled.
A majority of this court entertain the view, however, that the judgment finding the appellant guilty cannot stand because of the manner of obtaining his confession. There is grave doubt that there could have been a conviction without this testimony of the defendant against himself, and, in any event, it cannot be said that allowing it to be considered by the jury was harmless error. Inasmuch as we believe the circumstances surrounding the confession were infected with want of the freeness and voluntariness so long and so often recognized by this and other courts as elements indispensable to competency of a confession, we shall confine our remarks to this particular phase of the State's case against the appellant. In gauging the propriety of the methods employed to procure the statement we shall resort solely to the State's own witnesses and ignore the testimony offered by the appellant in refutation.
Shortly after the homicide a city detective was driving along the street when he spied appellant, stopped at the curb, and halted the appellant without telling him why he was accosted. Upon being asked where he was going, the negro replied that he was going home, and gave the officer the correct address. The detective opened the door to leave his car, whereupon the appellant ran, and the officer fired at him. Seven or eight minutes later this detective, after calling for police cars to surround the house, went to the address given him, where the appellant was found unafraid, "unconcerned," and "perfectly calm." He was then placed in custody without warrant and was transported to the police station. This occurred about midnight.
About two o'clock in the morning began the inquisition which culminated in the alleged confession and which lasted all through the night until noon of the following day. Interrogators were three: the officer who apprehended the appellant, another detective, and the chief of detectives. All were armed.
They ranged in height from five feet eleven inches to six feet two inches, and in weight from 199 to 220 pounds. The prisoner, aged twenty-one or twenty-two, was five feet ten inches tall and weighed 135 or 140 pounds.
The examination was continuous and incessant for ten hours. One officer estimated that he asked the appellant five hundred or seven hundred questions, and he said the questioning was persistent, and appellant, at least for a time, was completely surrounded by the officers in the place they had chosen for the inquest. One of the officers was present the full period, one for two hours, and one for three and one-half hours. At eleven o'clock a meal was brought to the prisoner and served him, but evidently without any recess in the examination.
At some time or other during this investigation, but before the supposed confession, one of the detectives took the appellant, handcuffed, out in a car, ostensibly to interview persons who the prisoner said knew his whereabouts the night before the crime was committed. During this trip the officer decided he wished to see the body of the victim; so he took appellant with him to the undertaker's establishment, where both viewed the remains. The purpose of the visit, so the detective said, was "to see just where he [the victim] was hit, and just where the wounds were," although he admitted he "knew how it [the crime] was committed." Why it was necessary or expedient to make his visit to the undertaker's at this particular time, while he had the appellant in custody, or why he should have been accompanied by the appellant when the investigation was still in progress and no admission of guilt had been made, is not explained.
Even then the defendant did not confess any part in the crime.
Then appellant's mother was brought to the police station. What connection she had with the transaction we are unable to determine from the record, and we cannot remark upon the motive for detaining her and putting her in a cell without digressing from the testimony of the State, to which we said at the outset we would confine our comment.
We close this narrative with the quotation of a significant statement of the chief of detectives, who said: ". . . he emphatically denied it [any connection with the crime] until that afternoon when his mother came in and I talked to her in his presence."
Of course the basic principle governing the admissibility of confessions is imbedded in section 12, Declaration of Rights, of the Florida Constitution where the following language is found: "No person shall be . . . compelled in any criminal case to be a witness against himself . . ." This identical phraseology appears in article five of the amendments of the Constitution of the United States. Inasmuch as the right defined and safeguarded in these portions of the Constitution is not a fundamental one or a privilege or immunity forbidden by the Federal Constitution, in the Fourteenth Amendment, to be abridged by a state, John D. Jack, v. State of Kansas,199 U.S. 372, 26 S.Ct. 73, 50 L.Ed. 234, 11 Am. Jur., Constitutional Law, page 1106, we shall deal first with the question in the light of the inhibition in our own Bill of Rights, then remark upon this guarantee as it is viewed by the Supreme Court of the United States under another provision of the Fourteenth Amendment of the Federal Constitution.
The protection is personal to the witness, or the accused, and may be waived by him. This he may do by a free and voluntary disclosure of guilt, but no such waiver can result unless from the attendant circumstances these ingredients are present. See Ex parte Senior, 37 Fla. 1, 19 So. 652. It is not left to the witness to determine whether any confession he has made is admissible, but this mixed question of law and fact is decided by the trial court in the absence of the jury. If the confession is held to be admissible the jury then passes upon its credibility. Nickels v. State, infra.
In many opinions of this court are found pronouncements of the characteristics which render confessions admissible and properly to be considered by the juries impaneled to decide the issue of guilt or innocence. In Simon, a slave, v. the State of Florida, 5 Fla. 285 (1853) in discussing this old common law principle, the court held that to be free and
voluntary the confession "must not be extracted by any sort of threats or violence, nor be obtained by any direct or implied promises however slight, nor by the exertion of any improper influence." Although this was written long before adoption of our present constitution, the rule announced seems to mesh with latter expressions of the court on the subject. In Green v. State, 40 Fla. 474, 24 So. 537, it was said that "the mind of the accused must at the time be free to act, uninfluenced by fear or hope; and . . . it must be clearly shown that they were voluntarily made" before confessions could be admitted. They may be considered by the jury, Nickels v. State, 90 Fla. 659,106 So. 479, when "freely and voluntarily made by the accused and uninfluenced by any threat, promise, fear, hope, or other illegal inducement . . ."
After a painstaking study of the record in this case we have concluded that the confession of the defendant given in the circumstances described by the witnesses for the State themselves was not free and voluntary as those words have been defined in the decisions we have cited and many others on the subject. We are convinced that admission of the confession, obtained as this one was, amount to compelling the defendant to testify against himself in contravention of the safeguard given in Section 12 of the Bill of Rights of the Florida Constitution. The point may be decided on that basis alone.
Many of the circumstances surrounding the supposed confession might be isolated and eliminated. For instance, a confession is not rendered invalid simply because the defendant was at the time in custody, McDonald v. State, 70 Fla. 250, 70 So. 24, or the examination protracted, or conducted by a person of superior physique or mentality, but the voluntariness must be determined from all these circumstances considered together. When this method is adopted here and the atmosphere under which the statement was given is taken into account and the solution is approached with the caution which we have admonished must be exercised, Nickels v. State, supra, we are lead to the conviction that appellant was not so uninfluenced by his experiences and so unconstrained that his statement was a free and voluntary expression.
We have remarked that this protection against compulsory testimony was not one of the fundamental rights which might not be abridged because of the provisions of the Federal Constitution. It is an interesting commentary that this very matter of the efficacy of confessions not freely obtained has been held by the Supreme Court of the United States to be determinable under provisions of the Fourteenth Amendment to the Federal constitution. In other words, that tribunal in Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472,84 L.Ed. 716, held that certain petitioners who had been convicted of a capital crime could assert under the "due process clause" of the Constitution the right to have their guilt or innocence determined independent of confessions obtained contrary to the provisions of that amendment. The Fourteenth Amendment, of course, deals with depriving citizens of life, liberty, or property without due process of law, or denying them equal protection of the laws.
We conclude, then that under the provisions of the State Constitution (Section 12, Bill of Rights) which we quoted in the very beginning, the defendant is entitled to a reversal in this case because of the inadmissibility of the confession, and we decide, too, that under the due process clause of the Federal Constitution (Fourteenth Amendment), the confession he was alleged to have made could not properly have been introduced against him. Reversed and remanded for a new trial.
CHAPMAN, C. J., BROWN and BUFORD, JJ., concur.
TERRELL, ADAMS and SEBRING, JJ., dissent.