Opinion
December 13, 1948.
1. Criminal procedure — confession — preliminary examination into.
When the prosecution offers proof of an alleged confession, the defendant is entitled to move for a preliminary hearing which thereupon must be held, at which hearing the issues are, first, was there a confession, and if so, second, was it free and voluntary; and the second question is not reached until the first has been determined, — on both of which issues the court should hear any competent witnesses offered by the accused as well as those on behalf of the state.
2. Criminal procedure — confession — question whether accused and the hearer understood.
When an alleged confession has been made by a foreigner imperfectly acquainted with the English language to a party who does not understand the foreign language, it must be shown that the alleged confessor sufficiently understood what was meant by the broken English used by him, and that the person to whom the alleged confession was made understood certainly and accurately as to what the confessor said, and in the preliminary hearing on these issues the accused has a right to be heard through an interpreter.
3. Criminal procedure — proof of guilt must be by competent evidence — competency to be decided by the judge.
A conviction in a criminal case can be had only on proof by competent evidence of guilt beyond a reasonable doubt and the competency of evidence is solely the responsibility and power of the judge.
Headnotes as approved by Smith, J.
APPEAL from the circuit court of Sunflower County; ARTHUR JORDAN, Special J.
Neill, Clark Townsend, for appellant.
It is clear that the question of competency and admissibility of a confession is for the court, and is not within the province of the jury; Lee v. State (1924), 137 Miss. 329, 102 So. 296; Brown v. State (1926), 142 Miss. 335, 107 So. 373; Stubbs v. State (1927), 148 Miss. 764, 114 So. 827; Smith v. State (1932), 165 Miss. 462, 144 So. 233; Wohner v. State (1936), 175 Miss. 428, 167 So. 622.
Under the due process clause of the Fourteenth Amendment to the Constitution of the United States, there are certain fundamental principles of liberty and justice which are protected. In Holden v. Hardy, 169 U.S. 366, 18 S.Ct. 383, the necessity of due notice and an opportunity of being heard is described as among the "immutable principles of justice which inhere in the very idea of free government, which no member of the Union may disregard."
In the famous case of Powell v. Alabama (1932) 287 U.S. 45, 53 S.Ct. 55, it was held that the assistance of counsel in a capital case was among those rights which are so ingrained into our society that the denial of such a right results in a violation of the due process clause of the Fourteenth Amendment. It would seem that the right to due notice and a hearing, should carry with it the right to produce evidence, for, if there is no such right, notice, hearing and the assistance of counsel are alike of no avail.
In this particular case, the defendant had a right to testify and to produce and introduce evidence to show that he did not have a sufficient command of the English language to enable him to understand the alleged confession, and that therefore such confession was not free and voluntary. The denial by the court of the defendant's right to introduce the evidence aforesaid is the denial of a substantial right, and one which is deeply embedded in our institution of Justice. No government can be free, no trial can be fair, no man can be convicted according to the terms of the Constitution of the United States, when his right to introduce evidence in his own behalf is denied. The action of the court above referred to is, we submit, a violation of due process clause of the Fourteenth Amendment, and, for this reason, if for no other, is grounds for a reversal of this cause.
It is well settled that after objection, before a confession is admissible, it must be shown that the same is free and voluntary; Hathorn v. State (1925) 138 Miss. 11, 102 So. 771; Fletcher v. State (1930), 159 Miss. 41, 131 So. 251.
An alleged confession which cannot be understood by the person making same cannot be said to be free and voluntary. Any confession, remark or admission which is free and voluntary assumes that the person alleged to have made same understands what he or she said or signed.
The court must, if requested, conduct a preliminary investigation to determine the competency of the confession; Randolph v. State (1928), 152 Miss. 48, 118 So. 354.
If there is a reasonable doubt as to whether a confession be free and voluntary, it must be excluded from the consideration of the jury; Ellis v. State (1887), 65 Miss. 44, 3 So. 188; Williams v. State (1894), 72 Miss. 117, 16 So. 296; Lee v. State (1924; 137 Miss. 329, 102 So. 296; Fisher v. State, (1926), 145 Miss. 116, 110 So. 361.
If a confession, apparently be made freely and voluntarily, and the defendant offers to show facts which, if true, would make the aforesaid confession incompetent, and the court refuses to allow the defendant to show such facts, we submit that such action on the part of the court is error, and such error as warrants a reversal. This reasoning necessarily follows from the views expressed by this court in the recent case of Johnson v. State (1944), 196 Miss. 402, 17 So.2d 446. In the case above referred to, this learned court pointed out that it was not error to submit a confession, which apparently had been voluntarily made, to the jury, without first hearing testimony to support objection that it was involuntary, in the absence of an offer to prove the involuntary nature of the confession, or of a request for a preliminary investigation of the matter. The reasoning of the court above mentioned necessarily implies that if an offer is made to show the involuntary nature of an alleged confession, the defendant has a right to make such proof and should right be denied, the defendant has been prejudiced thereby.
We quote from the case of Johnson v. State, supra, as follows:
"Nor was there any request for a preliminary investigation by the court in the absence of the jury as to whether or not the confession was free and voluntary. While the court should determine, prior to permitting a confession to go to the jury, whether it was or was not voluntary, it is not error to admit the same in evidence, when it purports to have been made voluntarily, as against an objection that it was involuntary, without first hearing testimony to support the objection, in the absence of an offer on the part of the defendant to prove the involuntary nature of the confession or of a request for a preliminary investigation of the matter. State v. Roland, 336 Mo. 563, 79 S.W.2d 1050, 102 A.L.R. 601, and cases cited under the A.L.R. annotation thereof; 22 C.J.S., Criminal Law, p. 1468, paragraph 838, whereunder is cited People v. Knox, 302 Ill. 471, 134 N.E. 923; Ellis v. State, 65 Miss. 44, 3 So. 188, 7 Am. St. Rep. 634; Lee v. State, 137 Miss. 329, 102 So. 296; Randolph v. State, 152 Miss. 48, 118 So. 354 and Doods v. State, 167 Miss. 609, 142 So. 500, wherein it is held that the failure of the trial court to make preliminary investigation is not error unless he is requested to do so by the defendant. Obviously, the trial judge would have the right to conduct such an investigation of his own motion if for any reason he should suspect that the confession may have been obtained under such circumstances as to indicate that it was not free and voluntary, but he is not required to do so in the absence of a request therefor."
We deem it unnecessary to cite authorities to the effect that the sufficiency or competency of the admissibility of a confession is a question for the court to determine and not a question for the jury. The court must determine from the evidence preseinted to it, the competency and admissibility of any confession. This is exclusively the right and duty of the court, and this duty cannot thereafter be preformed again by the jury. The jury may not decide whether or not a confession is free and voluntary, as this question directly concerns its admissibility. An instruction thereafter, "That the jury may, if they believe the confession was involuntary, disregard same," is improper, as it permits the jury to settle for themselves a question of law, to-wit: the question of whether or not said confession was free and voluntary. Brooks v. State (1937), 178 Miss. 575, 173 So. 409; and Johnson v. State, supra.
We submit that the former sheriff, the witness for the State, E.W. Williams, had never seen the defendant, a Mexican, before he arrested the defendant. We submit that we have never tried a case where we had the difficulty we had in this case in ascertaining the facts from the witnesses before the trial, because the defendant and the material eye-witness could not intelligently explain same because they could not speak English. We were unable to ascertain such facts except through the interpreter after the interpreter reached here for the trial, at the instance of the State. We submit that we had ample evidence to the effect that the defendant could not speak English and did not understand the verbal and written statements he is alleged to have made to the former sheriff. The defendant was prepared to make that proof by the defendant himself, and by the interpreter as a witness, and also by the witness, W.P. Brown, a white man for whom the defendant had worked for approximately two years immediately preceding the trial, and also other witnesses.
We submit that upon the State preceeding to offer a confession, that the defendant seasonably requested the court to determine the sufficiency or competency of such evidence, in the absence of the jury. The court proceeded to do such by retiring the jury and hearing the testimony of one witness, the former sheriff, E.W. Williams; whereupon, the defendant then and there, at the proper time and in the manner in which he had a right so to do, moved the court to hear evidence in support of his objections to the sufficiency and the competency of the confession being offered, and in addition, the defendant stated what testimony he offered to introduce in support of his objections, and named witnesses by whom he wanted to offer evidence in support of his objections, all of which were, by the court, overruled, and in doing such, we submit that the court committed reversible error in this case.
We submit that the learned special judge in the court below was mistakenly under the impression that the question as to the sufficiency or competency of such evidence was a question for the jury to determine and which the defendant might argue to the jury in his behalf, and the court, in its haste to get on with the trial and save time, denied the defendant substantial rights. The court, in effect, stated to the defendant: "You have requested a preliminary hearing to determine the sufficiency or competency of the admissions and confessions, in the absence of the jury, to which you are entitled, and I have heard the testimony of one witness in support of such testimony offered by the State, and that witness says that, in his opinion, the confession was free and voluntary; therefore, I am not going to take up any further time in hearing any evidence that the defendant may have to offer in support of any objections to the introduction of such testimony.
We submit that the defendant did everything possible that he could do to offer his evidence in support of his objections to the confession and admissions, and he was denied the right to offer such testimony. The refusal to hear such testimony offered by the defendant was the equivalent of requiring the defendant to take the stand as a witness in his own behalf.
George H. Ethridge, Assistant Attorney General, for appellee.
The question of whether the appellant understood English sufficiently to understand the statement made and signed by him and testified to by the sheriff, was, at most, a question of fact to be passed on by trial judge who for that purpose is the judge of the truth of the facts and their sufficiency to show that appellant understood English to the extent that he knew the facts stated by him. The appellant took the witness stand and did not specifically deny that he understood the statement made by him to the sheriff or that the statement was incorrect. He merely stated that he didn't understand English writing and understood English only slightly. In this connection, it appears that he was thirty-six years of age at the time of the trial and had been working for Americans since he was twenty-one years of age and his life had been spent in the United States in contact with English speaking people. The interpreter was brought to the court by the state, remained there through the trial, and appellant did not show by the interpreter that he could not understand English or enough to relate the circumstances attending the killing. The whole testimony was that he could speak the English language and a great many English speaking people do not understand all of the English language. The sheriff's opinion is entitled to great weight and he was careful in securing the evidence and writing it down. The appellant was well enough educated to sign his name. I do not think there is anything particularly unusual about this case except that several of the witnesses, including the appellant, had the aid of an interpreter in testifying. The interpreter was vice-consul of the Mexican government, interested in seeing that the appellant secured a fair trial. The method of propounding questions was unusual but gave the defendant the benefit of an interpreter's knowledge and skill in framing the answers to bring out the facts. Often the interpreter would use the language "he states" or "he says" instead of merely translating Mexican into the English language. I therefore respectfully submit that there is no merit in this appeal and the judgment should be affirmed.
(No response was made in appellee's brief to the specific point that a full preliminary hearing should be had on the admissibility of the confession, nor was there any response to the authorities cited by appellant on that point.)
Appellant is of the Mexican race, as was the man whom he was charged with murdering. Indicted for murder of Masario Rangee in the Circuit Court of Sunflower County, he was convited of manslaughter and sentenced to the State penitentiary for the term of ten years.
On appeal, we find only one assignment of error worthy of consideration. On the trial, the State was preparing to prove by the sheriff that appellant made an oral and a written confession to him, whereupon appellant moved for a preliminary hearing to determine their competency, as evidence. This motion was granted, but only the State was permitted to introduce evidence. The defendant was limited to cross examination of the State's witness, the sheriff.
It is to be borne in mind that the appellant spoke only broken English, and that the purported written confession was based on the interpretation of what the appellant said, in response to questions propounded by the sheriff. He did not immediately write down the question or the answers, but made a summary later from memory, of what he understood the substance to be. However, he read this result to appellant, who seemed to understand, and said it was all right. When asked if the oral and written "confessions" coincided, the sheriff answered that they did not. Without the written confession, if it can be determined on the situation in the present record to be such, an acquittal would have probably been obtained by the appellant, since he was corroborated abundantly in his testimony of self-defense. The alleged confession, on the other hand, presented a case of murder and doubtless produced, or was the deciding factor, in producing the verdict of guilty.
When asked if appellant could understand English, the sheriff replied, "I don't know." He was then asked, "Do you think he understood what he was telling you?" (Italics supplied) And his answer was, "I do." With further reference to the understanding of English by appellant, he was asked, "You thought you understood what they said?" Answer, "Yes, sir, I am satisfied further than Tony and Jo both speak English." Question, "You don't know how much of it they understand?" Answer, "No, sir."
The appellant then offered himself and his American employer, a Mississippi planter, to prove that he did not understand, because he was unable to speak more than very little English. He desired to testify through an interpreter, a Mexican Vice Consul, then present at the court. The trial judge refused to permit defendant to offer any of this evidence to rebut and contradict the evidence offered by the State on this preliminary investigation, thereby basing the court's conclusion on only one side of an issue as to which the State had offered evidence, but as to which the defendant was denied the right to do so, on the theory that it "appears to be a matter of defense and possible argument to the jury, . . ." The court thereby imposed measurably an unfair burden on the defendant before the jury, as a factual matter only, whereas he should have preliminary decided its lawful competency, after hearing both sides, and as to whether such controverted confession should reach the jury at all.
When the trial got under way, the district attorney suggested to the court that the appellant and other Mexican witnesses be permitted to testify through a Mexican interpreter. This was done, and appellant testified in Mexican, or Spanish, and was so interrogated. Such treatment was a fair one to appellant, and an expedient one for the State, since the interpreter translated both questions and answers to the jury. Yet, the court would not accord this privilege to appellant at the preliminary investigation, would not let him by evidence controvert the proof and contention of the State, — by evidence of himself, through this same interpreter, and by the man who was his employer. The employer-witness was in a favored position to know appellant's ability both of comprehension of, and expression in, English.
It is a difficult decision to make on the merits of this precise controversy, without the evidence on both sides of it, and should not be attempted. On the one hand, care must be taken not to handicap prosecuting officials unduly, and on the other hand to avoid injustice to prisoners at the bar. Here, this difficulty, for the present at least, is mitigated because the error, we are considering, was the failure of the court to hear the appellant and his witness, and limiting the proof to the State's side alone. If the defendant's testimony had been heard, and a decision adverse to him rendered, we would have an entirely different question confronting us.
But, (Hn 1) here, the court by-passed the question, which was at the threshold. Was this a lawful confession under the circumstances? That must first be determined. We are not dealing with a mere denial of the actual making of a confession as a matter of fact, but we are concerned with a matter of law. We are deciding only the issue as related to the particular course of the procedure in the case at bar. In this connection, People v. Gelabert, 39 Cal. 663, says this: "Some of the reasons given why extra-judicial confessions should be received with great caution are that there is danger of mistake from misapprehension of the witness, the misuse of words, the failure of the party to express his own meaning, the infirmity of memory. (1 Greenleaf Ev., Sec. 214, etc)."
With further refernce to confessions, we point out that there are two questions which the Court must decide on a preliminary investigation. The first of these; was there a confession; and, second, was it free and voluntary? The second question is not reached until the first is determined. (Hn 2) If the alleged confessor did not sufficiently understand the language of the confession, there could be no lawful confession, and the court should have heard the evidence of the appellant and his witness on this issue instead of refusing to do so. Likewise, the person to whom confession was allegedly made must be shown to have understood certainly and accurately as to what the confessor said.
We think the trial judge should have heard the evidence proffered by appellant, and determined this matter before relegating him to the jury, thereby imposing an extra and unfair burden on him. (Hn 3) The State is there required to carry the burden of proving him guilty, by competent evidence, beyond a reasonable doubt. And the competency of evidence is solely the responsibility and power of the judge.
The judgment of the trial court is reversed, and the cause remanded, in view of our views above set out.
Reversed and remanded.