Opinion
April 11, 1949.
1. Criminal procedure — confession — preliminary hearing.
When an alleged confession is about to be offered by the prosecution and an objection or suggestion is made that its voluntary character is or will be an issue, the court must conduct a preliminary hearing, in the absence of the jury, as to whether the confession was free and voluntary, at which hearing the testimony in behalf of the defendant as well as that of the State must be fully heard so far as offered; and the alleged confession is not to be permitted to go to the jury unless the trial judge on the preliminary hearing is of the opinion that the confession is competent.
2. Criminal procedure — evidence — other like crimes on previous occasions.
In a prosecution of the capital felony of rape of a child under twelve years of age, it is error to admit evidence that the accused had committed the same offense upon the same child on previous occasion.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Montgomery County; J.P. COLEMAN, J.
Robertson Horton, for appellant.
Denial of the defendant's request to determine the admissability of the confession, as to being free and voluntary, in the absence of the jury constitutes reversible error and a denial of due process to the defendant. Warren v. State, 174 Miss. 63; Wilson v. State, 37 So.2d 19; Hawkins v. State, 193 Miss. 586; Johnson v. State, 196 Miss. 402; Ellis v. State, 65 Miss. 44; Lee v. State, 137 Miss. 329; Hathorn v. State, 138 Miss. 11; Winchester v. State, 163 Miss. 462; Allen v. State, 180 Miss. 418; Williams v. State, 37 So.2d 156; Morroco v. State, 37 So.2d 751; Fletcher v. State, 159 Miss. 41.
The confession was not freely and voluntarily made and should not have been admitted. Wright v. State, 198 Miss. 211; Whip v. State, 143 Miss. 757; White v. State, 129 Miss. 182; Keithler v. State, 18 Miss. 192; Usrey v. State, 198 Miss. 17; Williams v. State, 72 Miss. 117; Street v. State, 26 So.2d 678.
Evidence of other and separate offense than the one for which the defendant was on trial, including the confession, should not have been admitted. Skinner v. State, 198 Miss. 505; Floyd v. State, 166 Miss. 15; Martin v. State, 197 Miss. 96; Gunter v. State, 180 Miss. 769; Kehoe v. State, 194 Miss. 339.
George H. Ethridge, Assistant Attorney General, for appellee.
I think under the decisions of this state as to when a confession is offered and objected to that the court should hear all the evidence material to that issue before it is submitted to the jury and the defendant had a right to be heard upon that issue alone and to produce such other witnesses as he might have. That it was a technical error for the court to hold that it was admissible before the jury before its legal validity as a confession had been established is conceded. The defendant's authorities on this proposition are not challenged as being the law applied to their particular facts but I desire to submit to the court that taking the record as a whole including the defendant's subsequent testimony admitting that he made the statements but that he made them through fear although he had not been threatened with violence or given inducement that the court had a right to pass on the legality and competency of the confessions in the beginning rightfully refused to strike out the evidence at the end of the whole case. In other words, I think the original ruling was wrong and would constitute error if the whole evidence at the end of the trial which this court is now called on to review depended on that ruling. As no authority on the admissibility of the reproduction of the alleged statements from the machine which had taken the statements down were cited, the question of the propriety of reproducing the confessions from the machine in the presence of the jury evanishes, as defendant admitted making them.
I come now to a more serious contention of the appellant — that the evidence of other and separate offenses than than the one for which the defendant was on trial including the confessions should not have been introduced. The rule is, in this state, that a defendant is tried or to be tried on the particular offense contained in the indictment and that evidence of other offenses not connected with the offense charged in the indictment or in the proof of a number of offenses should not be had. This phase of the case was fully considered in Skinner v. State, 198 Miss. 505, 23 So.2d 501, where the court held that where the indictment charged only a single incestuous offense, admission of defendant's confession of more than one crime was error even though the crimes were of the same or general nature. In syllabus 5 of this case the court held "Where there are several offenses for either one of which accused may be convicted under indictment, prosecution should elect the offense which it will pursue and testimony should be confined to that offense unless the case is within some exception which renders proof of other distinct offenses admissible." In the present case the indictment does not contain more than one count and it would appear that each separate offense would constitute a felonious crime either of an attempt to ravish or the actual committing of same. If the indictment contained several counts each charging a separate offense then the State might have to elect which one of the offenses it would try and under the Skinner case confine its proof to that particular offense but as the indictment does not name the several dates as separate offenses, it is seriously to be doubted if the proof was admissible in evidence in the beginning and it would appear that the court should have sustained the objection made by counsel for defendant to proof of more than one offense but as the court did admit the evidence of a number of offenses it does not clearly appear to my mind that it was cured by requiring the prosecution to elect which offense it would proceed on and then verbally instruct the jury to disregard all the evidence except that bearing on the one particular offense, to-wit: the one on or about July 14th. The evidence appears to me to be such as would be prejudicial and damaging and it is doubtful if it could be cured or eliminated from the reasoning and consideration of the jury by a verbal instruction, and this especially without specifically instructing the jury to disregard the testimony of the woman who attempt to wash the child in May and specifically as to each of the other offenses proven in the evidence. In the opinion of the Skinner case which is similar to this the main difference being merely as to the age of the daughter assaulted, the court said: "It is not necessary to go into the disgusting and revolting details of the facts revealed in the evidence or to expatiate upon the depravity of a miscreant who would despoil his own little daughter; but it is necessary that we preserve changeless the principles of the law governing the issues in this case, as established by our jurisprudence". This court has several times said that a prosecuting offense should be fair with the defendant and see that justice is done. It seems to me that the words "but it is necessary that we preserve changeless the principles of the law governing the issues in this case, as established in our jurisprudence," is of force and seriously to be conidered in all cases no matter how degraded and dissolute the defendant may be. It is doubtful in my mind if by any logical process of reasoning the repeated offenses testified about in the confessions have any proper relation to the particular offense proven to be on or about July 14th but I submit this to the court for its consideration and if it can make a distinction and bring the proof within the rules governing admission of offenses at other times that it would serve a purpose of the distinction is carefully pointed out. The appellant, if guilty, as he manifestly must be under the weight of the evidence although he denied it should get the deserved punishment. The appellant has cited all of the authorities that the court will need in the consideration of this case. The criminal law of this state is well settled by our court decisions and distinctions should only be made where facts differentiate the acts constituting the offense and show its relevancy. Of course, the average mind would leap to the conclusion that offenses of a kindred nature committed on separate occasions should be considered in adjudicating guilt in a particular case but such, as I understand it, is not the law and it is highly important in many cases to confine the proof to the particular offense charged and while it might be concluded that each offense showed an inclination to violate the law, I do not think that that is true for each offense should be governed by its own facts. It is with some embarrassment that I make this frank statement of my view because there is much reason to believe that the defendant is guilty and if so, he deserves all that the court and jury gave him.
The appellant, Alexander English, was convicted of the crime of rape upon an alleged free and voluntary confession of his guilt and other corroborating circumstances. The alleged victim, who was under twelve years of age, did not testify.
When the sheriff was offered as a witness to the confession and was being questioned as to whether the same had been given freely and voluntarily, the attorney for the defendant stated: "We object at this time and ask that the jury be retired and to examine this witness and put on proof with reference to this confession in the absence of the jury." Thereupon the Court overruled the objection, stating the reason to be because the sheriff has testified that there was no force or threats or violence, or that there was no promise or hope of reward offered the defendant, and that makes the purported statement competent for the consideration of the jury. The Court then further stated as follows: "If the defendant sees fit to assail the voluntary character of the confession for the consideration of the jury, then at the proper time he may do so." Defense counsel then stated his position in substance to be that it was his undertanding that the question of whether a confession is free and voluntary is one to be decided by the trial judge prior to relating the purported confession in the presence of the jury, and he excepted to the ruling of the Court in declining to let the jury retire and in ordering the examination of the sheriff to proceed before the jury as to details of the alleged confession.
(Hn 1) Thus it will be seen that the ruling of the court had the effect of precluding the defendant from offering testimony before the trial judge in the absence of the jury in support of his contention that the confession was made under fear and was not therefore free and voluntary. The jury was not entitled to hear the confession until the trial judge had first held that the same had been freely and voluntarily made, and was therefore competent. Moreover, the question of its competency could not constitutionally be determined without an opportunity being afforded the defendant to offer proof as to its incompetency.
In the case of Warren v. State, 174 Miss. 63, 164 So. 234, 235, it was held that the refusal to permit a defendant to testify that a confession was not free and voluntary at the close of the State's evidence, upon a preliminary inquiry as to the admissibility of the confession made to the sheriff, was error; and was a denial of the right of the accused, guaranteed to him by Section 26 of the Constitution of 1890. The Court therein stated: "The constitutional right to be heard means the right to be heard at the proper time, and is not satisfied by so postponing the right as to make it in whole or in part ineffective, or to a time when to avail of it entails the acceptance of conditions which may not lawfully be imposed upon the accused."
When an accused is not permitted to offer testimony upon a preliminary inquiry as to whether a confession is free and voluntary, the result is that he has no opportunity to question such fact without taking the stand as a witness before the jury in regard thereto, although he may otherwise choose not to testify in the case.
Again, in the case of Conway v. State, 177 Miss. 461, 171 So. 16, 17, the Court held in regard to passing upon the competency of evidence out of the presence of the jury, when its admission is objected to, said: "The procedure is, first, the court passes on the question, and if the evidence of qualification is sufficient it is submitted to the jury, then the evidence given before the court is repeated before the jury. 30 C.J. pp. 267, 268, §§ 506 and 507. This question has not been directly passed upon by our court, but the principle is necessarily recognized in Jones v. State, 70 Miss. 401, 12 So. 444; Jackson v. State, 94 Miss. 83, 47 So. 502; Nelms v. State, 13 Smedes M. 500, 53 Am.Dec. 94; Brown v. State, 32 Miss. 433, and Chase v. State, 147 Miss. 694, 112 So. 785. We are of the opinion, however, that under the particular facts of this case that error was harmless."
Thus, it may occur that the Court would not reverse in some cases for failure of the trial judge to hold a preliminary inquiry as to whether or not a confession is free and voluntary, depending upon the facts of the particular case. For instance, the accused as a witness in his own behalf may admit making the confession as testified to by the officers, and then fail to detail any facts in connection with the making thereof that would be sufficient to show it not to be free and voluntary.
However, in the instant case the accused, in presenting his defense to the jury, made the contention that the alleged confession was given under fear and duress, and that the same was untrue. He was entitled to first make this contention before the trial judge out of the presence of the jury. His counsel had the right to question the officers freely and fully on a preliminary hearing, without incurring the risk of prejudicing the defense in the hearing of the jurors by the nature and character of the interrogation, and to thus procure, if he could do so, concessions from them as to what was said and done to obtain the confession that might not be elicited in the presence of the jury.
In this decision, we are merely undertaking to preserve and maintain inviolate an important and wholesome principle for safeguarding the right of an accused to be heard as to whether or not he has made a free and voluntary confession of guilt and at a time when he may do so without prejudicing the jury against him by what questions he may cause to be asked the officer or other person to whom a confession is alleged to have been made, or by what he may choose to say to the trial judge, separate and apart from the jury, about how the same was obtained. And we do not mean to intimate that the alleged confession in the case at bar was not a free and voluntary one.
(Hn 2) The confession in the instant case, as taken on a recording machine, disclosed the commission of such a crime on a number of other occasions, and upon motion of the defendant the State was required to elect the particular offense on which it would rely for a conviction, but the court overruled the motion of the defendant to exclude from the consideration of the jury that part of the confession relating to the other separate crimes, and also the testimony of two of the State's corroborating witnesses as to the commission of a like crime on an occasion which was several weeks prior to the date on which the prosecution relied.
The trial court was of the opinion that this evidence was competent as showing a course of behavior and conduct of the defendant on other and prior occasions, and as tending therefore to show his guilt on the particular occasion complained of, relying on the case of Kuykendall v. State, 200 Miss. 192, 26 So.2d 471. But we are of the opinion that while this testimony may be relevant, it was not competent as a part of the res gestae, and it is contrary to the spirit and purpose of Section 26 of our State Constitution to require a defendant to be prepared to answer for several separate and distinct capital felonies upon a trial under a single indictment, where there has been no previous conviction.
We are therefore of the opinion that on a new trial of the case, the proof should be confined to the particular crime relied on by the State for a conviction, and this is particularly true in regard to a crime which is so easy to charge and so difficult to defend.
From the foregoing views it follows that the case must be reversed and remanded for a new trial.
Reversed and remanded.