Opinion
No. 33639.
June 5, 1939.
1. CRIMINAL LAW.
In prosecution for grand larceny, an alleged agreement at former term of court for entry of a plea of guilty, which was not in fact entered, could not be used as a confession of guilt until trial judge had determined from antecedent facts and circumstances whether or not it had been freely and voluntarily made.
2. CRIMINAL LAW.
An alleged agreement for entry of plea of guilty at former term of court was incompetent as evidence against defendant in prosecution for grand larceny where it appeared that defendant had not voluntarily entered into agreement, and agreement had been induced by promise of leniency as to sentence to be imposed.
APPEAL from the circuit court of Madison county; HON. JULIAN P. ALEXANDER, Judge.
Lee M. Russell, of Jackson, for appellant.
What fatal error it was to allow the circuit clerk and the sheriff testify to all this prejudicial matter about what the defendant did as to change of his plea, and all allowed by the court, when the record itself showed that no such thing happened. Are men convicted and sentenced to prison or hanged by what somebody "heard" or "said" happened? Why not let the record speak; the solemn judgments of the courts hang people and place them in the penitentiary, and that alone. Yet, this sort of damaging testimony, long drawn out before a jury that knows no law, except as allowed to be presented by the court, as was in this case, was dinned into their ears by these two witnesses, Randel and James, officers of the court and well known to all jurors, and with the court's sanction as being competent and, therefore, most any jury would convict believing that once he entered a plea of guilty, he would know and therefore he would still be guilty regardless of whether there was any other proof to connect him with the case.
The average juror and the average layman are always willing to stand upon a confession, or some admission against interest and render punishment without any other investigation. And, regardless of that the record showed in this matter they, the jurors, had heard from the lips of these officers, under sanction of the court, for all intents and purposes, a plea of guilty, they need no more — law or no law.
The burden of proof is always on the state to prove every essential element of the crime charged. Page v. State, 160 Miss. 300, 133 So. 216.
The burden of proof never shifts.
Hampton v. State, 99 Miss. 176, 54 So. 722.
Circumstantial evidence should be acted upon with great caution.
Pitts v. State, 43 Miss. 472.
While there was no confession in the legal sense as we view the record, yet, if there be a reasonable doubt as to whether a confession is free and voluntary, it must be excluded.
Ellis v. State, 65 Miss. 44, 3 So. 188; Williams v. State, 72 Miss. 117, 16 So. 296; Lee v. State, 137 Miss. 329, 102 So. 296; Foster v. State, 145 Miss. 116, 110 So. 361.
A confession is distinguishable from an admission of facts from which guilt may be inferred.
Pringle v. State, 108 Miss. 802, 133 So. 216.
A confession not corroborated by independent evidence of the corpus delicti is not sufficient to support a conviction of felony.
5 Miss. Digest, page 159, sec. 535 (1).
A confession of accused is not alone sufficient to prove corpus delicti.
Jenkins v. State, 54 So. 158, 98 Miss. 717; Bolden v. State, 54 So. 241, 98 Miss. 723.
Defendant's explanation of a homicide, not contradicted directly or by fair inference, must be accepted as true.
Bowen v. State, 144 So. 230, 164 Miss. 225.
A conviction cannot be predicated upon suspicion.
City of Hazlehurst v. Byrd, 57 So. 360, 101 Miss. 57; Jobe v. State, 61 So. 826, 104 Miss. 860; Williams v. State, 98 So. 338.
The peremptory instruction should have been given.
E.R. Holmes, Jr., Assistant Attorney-General, for the state.
We submit that the testimony of McRooney alone was sufficient to sustain the jury's verdict. However, the record discloses that appellant did not make a motion for a new trial in the court below and hence this question as to the sufficiency of the testimony cannot be raised in this court.
Justice v. State, 170 Miss. 96; Bryant v. State, 172 Miss. 210.
It is competent to show that the defendant entered a plea of guilty whether such plea was entered in the court below and an appeal taken therefrom, or whether, as in this case, the plea of guilty was entered and subsequently withdrawn, just as it is competent to use the testimony of an accused taken at a former trial against the accused in a subsequent trial for the same offense.
Crabb v. State, 123 So. 851.
In addition to the foregoing, however, we point out that the record itself shows that the defendant agreed to enter a plea of guilty at the January term of court and by such agreement obtained a continuance, and that at the January term of court he moved the court to set aside such plea or agreement and allow him a trial on the merits. The motion to set aside was sustained.
Argued orally by Lee M. Russell, for appellant.
From a conviction of the grand larceny of a steer, this appeal is prosecuted. The evidence was largely circumstantial, except for the fact that the state was permitted to offer evidence as to an agreement had at a former term of the court, whereby the appellant was to enter a plea of guilty upon the understanding that he would receive a sentence of only one year in the state penitentiary, and that the case was to be continued for that term in order that the sentence might not be imposed and take effect until the following term of the court. The minutes of the court at the former term disclosed only that the appellant was arraigned, entered a plea of not guilty, and that the case was continued by agreement for the term. The circuit clerk was offered as a witness by the state and testified that at the time of the continuance of the cause, an agreement to the foregoing effect was stated to the court by the prosecuting attorneys in the presence of the appellant, and that he assented thereto. Thereupon, the attorney who had represented the appellant at the former term was introduced by his present counsel and testified to having made the agreement with the prosecuting attorneys on behalf of the appellant, but that he had advised the appellant to consent to that disposition of the case for the reason that the state's witnesses were all white men and that the witnesses for the appellant were all colored; and that he thought it was best for the appellant to accept the sentence of one year in the penitentiary rather than take the chance with a jury of receiving a longer sentence. He then undertook to testify that the appellant was protesting all the while and was maintaining that he was innocent of the crime; that he finally induced him to submit to the arrangement, but that he was dissatisfied therewith; and that because of this agreement which the attorney had advised him to make, the appellant asked to be allowed to secure the services of another attorney, which was done. The testimony of the first attorney, whereby he undertook to disclose that the appellant did not consent willingly to the entry of such plea, was excluded, and the inquiry was confined to what occurred in open court, wherein the appellant made no audible objection to the agreement stated to the court by the prosecuting attorneys and assented to by his own counsel.
From the foregoing, it clearly appears that the agreement for the entry of the plea of guilty at the former term, which was not in fact entered of record as a judicial confession or plea of guilty, was used against the appellant on the trial as a confession of guilt of the crime with which he was charged. Before this alleged confession could be used as evidence, it was necessary for the trial judge to first determine from all of the antecedent facts and circumstances whether or not it had been freely and voluntarily made. Hunter v. State, 74 Miss. 515, 21 So. 305; Johnson v. State, 107 Miss. 196, 65 So. 218, 51 L.R.A. (N.S.) 1183; Brown v. State, 142 Miss. 335, 107 So. 373; Stubbs v. State, 148 Miss. 764, 114 So. 827; Buckler v. State, 171 Miss. 353, 157 So. 353; Bartee v. State, 180 Miss. 141, 177 So. 355; Allen v. State, 180 Miss. 418, 177 So. 787; and Humphries et al. v. State, 181 Miss. 325, 179 So. 561. And, we are of the opinion that the court could not have determined this issue without the benefit of the excluded testimony, which, in the case at bar, would have shown that the alleged confession was not free and voluntary. Moreover, it also clearly appears that this alleged confession, even though agreed to by the appellant, was induced by the promise of leniency as to the sentence to be imposed. Under the facts and circumstances testified to, we do not think it was competent as evidence against the accused.
The cause will therefore be reversed and remanded for a new trial.
Reversed and remanded.