Summary
In State v. Zaccario, 100 W. Va. 36, 129 S.E. 763, the prosecution introduced, over the objection of the defendant, evidence of an alleged confession by him, after his arrest, to the arresting officer, without first showing that it had been freely and voluntarily made, just as that fact was not, and could not have been, shown in the case at bar for the reason that the evidence of the arresting officers shows that the confession was induced by the threat to take the defendant to the scene of the crime unless he confessed that he committed the crime.
Summary of this case from State v. StevensonOpinion
No. 5341
Submitted September 15, 1925.
Decided October 6, 1925.
Error to Circuit Court, Monongalia County.
Paul Zaccario was convicted of violation of the prohibition laws, and he brings error.
Reversed and remanded.
Eugene H. Long, for plaintiff in error.
Howard B. Lee, Attorney General, and R. A. Blessing, Assistant Attorney General, for the State.
An indictment in two counts was returned against the defendant, charging him (1) with owning, operating, maintaining, possessing and having an interest in a moonshine still; and (2) with aiding and abetting in the operation thereof. To the judgment of the Circuit Court, upon a verdict of conviction "as charged in the indictment", imposing a fine of $300 and sentence of two and a half years in the penitentiary, he prosecutes this writ.
Having a warrant for the search of the dwelling house and premises of the defendant, J. S. Watson, a constable, accompanied by two other persons, went to the home of defendant at 10:30 or 11:00 o'clock at night, August 19, 1924. In the yard, "about forty-eight steps from the house", they found seventeen pints of moonshine liquor. There was also discovered next morning, one-fourth mile from the residence, two stills and three hundred gallons of mash.
In addition to these facts, the prosecution introduced, over the objection of defendant, evidence of an alleged confession by him after his arrest to the jailor and arresting officer, without showing that it had been freely and voluntarily made. The defendant denied the confession and stated, without contradiction, he was assaulted by the jailor for refusing to make any incriminating statement.
The admission of the alleged confession in the absence of proof that it had not been obtained under inducements of fear or favor is relied on for reversal. According to some authorities, including Wigmore on Evidence, confessions of accused persons are presumed to be voluntary. Common judgment and human experience, however, inveigh against such theory. Confession of guilt by an accused is certainly not usual, natural or ordinary. The State should have shown by affirmative testimony as a condition precedent to its admissibility that the confession was not made under inducements of fear or favor. State v. Goldizen, 93 W. Va. 328, 334; Jackson v. Commonwealth, 116 Va. 1015, 81 S.E. 192; Mitchell v. Commonwealth, 33 Gratt. 845; Thompson v. Commonwealth, 20 Gratt. 724.
There is no merit in any other assignment of error.
The judgment of the Circuit Court will be reversed, the verdict of the jury set aside, and a new trial awarded the defendant.
Reversed and remanded.