Opinion
No. 28751.
October 27, 1930.
1. CRIMINAL LAW. Proof of defendant's alleged confession held improperly admitted, where testimony was undisputed that confession was made under influence of threats of severe punishment.
On cross-examination of witness for defendant in robbery prosecution, state was permitted to prove an alleged confession of defendant made to witness and to defendant's mother and stepfather, but witness testified that defendant denied he actually committed robbery, but stated that he said he committed it because he had been told he would be sent to penitentiary for thirty-five and fifteen years unless he admitted robbery.
2. CRIMINAL LAW.
Alleged error in admitting confession made to sheriff cannot be considered, where proper objection was not made.
APPEAL from circuit court of Le Flore county. HON. S.F. DAVIS, Judge.
O.L. Kimbrough, of Greenwood, for appellant.
Where a confession is made under the influence of threats or the hope of reward, a subsequent confession will not be admissible in evidence until such influence is shown to have been removed.
Hathorn v. State, 102 So. 771; Whip v. State, 109 So. 697.
Wm. A. Shipman, Assistant Attorney-General, for the state.
Where it affirmatively appears from the whole record that a verdict of guilty has not resulted in a miscarriage of justice, the supreme court will not reverse the judgment although evidence was admitted for the state, on the trial, of questionable propriety.
Patterson v. State, 106 Miss. 338, 63 So. 667.
The record herein shows that appellant's statement to the sheriff was free, voluntary and spontaneous. There is not the slightest suggestion that it was induced in any degree by fear or hope.
The appellant, Mike Blackshire, was convicted in the circuit court of Le Flore county on a charge of robbery, and was sentenced to the state penitentiary for a period of seven years, and from this conviction and sentence he prosecuted this appeal.
In the cross-examination of Andrew Blackshire, a witness for the appellant, the state was permitted to prove an alleged confession of the appellant made to the said witness and the appellant's mother and stepfather; and the admission of this confession is assigned as error.
The testimony shows that shortly after the alleged robbery the appellant was arrested and turned over to a deputy sheriff by Charlie Allen and a Mr. Steele, who operated a plantation near the scene of the robbery. On the cross-examination of Andrew Blackshire, a witness for the appellant, he was interrogated in reference to a confession alleged to have been made to the appellant's mother in the presence of the witness, and by leading questions the witness was made to testify that the appellant told his mother he committed the robbery. The testimony in reference to this alleged confession was fully developed out of the presence of the jury, and it seems clear that this witness intended to, and did, testify that the appellant denied he actually committed the robbery, but stated that he told Mr. Allen he committed it because Allen had told him he would be sent to the penitentiary for thirty-five and fifteen years unless he admitted the robbery. There is nothing in this record to dispute the testimony to the effect that this alleged confession was made under the influence of these threats of severe punishment and the hope of reward, and we think its admission in evidence constituted reversible error.
After the conclusion of the appellant's evidence the sheriff of the county was called in rebuttal to testify as to an alleged confession made to him shortly after the appellant was placed in jail, and the admission of this evidence is assigned as error. While it is true that, "where a confession is made under the influence of threats or the hope of reward, a subsequent confession will not be admissible in evidence until such influence is shown to have been removed," still upon the state of this record it does not appear that proper objection was made to the introduction of the testimony of the sheriff, and consequently this assignment must fail.
For the error indicated, however, the judgment of the court below will be reversed, and the cause remanded.
Reversed and remanded.