Opinion
No. 33135.
May 23, 1938.
1. CRIMINAL LAW.
Evidence indicating that prosecuting attorney awakened defendant who was asleep in jail, and stated that he was investigating the killing, and that "You don't have to tell me anything at all unless you care to," held to authorize admission in evidence of defendant's resulting confession, notwithstanding attorney's failure to warn defendant that confession might be used against him.
2. CRIMINAL LAW.
A county prosecuting attorney is not a "judicial officer" within meaning of rule that confession to judicial officer is incompetent, unless warning be given that confession will be used against the defendant (Code 1930, section 4220 et seq; section 4225).
3. COURTS.
The term "judicial officer," in the popular sense, applies generally to an officer of a court, but in the strictly legal sense applies only to an officer who determines causes between parties, and quasi judicial powers conferred on officers do not make such officers judicial.
APPEAL from the circuit court of Tallahatchie county; HON. JOHN M. KUYKENDALL, Judge.
J.O. Day, of Tutwiler, for appellant.
We think the most serious error committed by the trial court was made by it in admitting the testimony of Major James A. Blount, the county prosecuting attorney, who, as a witness for the State, was allowed to relate in detail a conversation he had with the accused, in the county jail at Charleston, some time after midnight of the night after the killing (same night of the killing, but around two o'clock in the morning), and permitting such conversation to be used and introduced by the state as competent proof of admissions and as a confession of appellant's guilt in connection with the alleged killing.
The county attorney, Mr. Blount, should never have testified in this trial. The court should not have permitted the jury to hear his testimony. There was a whole house full of eye witnesses at the scene of the killing. They knew how it happened, if anybody did. Mr. Blount was nowhere near the place where the shooting occurred. He knew none of the facts. He was the county prosecuting attorney — a judicial or quasi judicial officer, and, as such, it was his duty to act impartially in the conduct of the public business.
18 C.J. 1296, sec. 1; State v. Montgomery, 56 Wn. 443, 105 P. 1035, 134 Am. St. Rep. 1119; Cooley's Constitutional Limitations (7 Ed.), page 440, note 2.
If there is a reasonable doubt as to whether a confession was freely and voluntarily made, it must be excluded from the jury.
Fisher v. State, 145 Miss. 116, 110 So. 361; Johnson v. State, 107 Miss. 196, 65 So. 218, 51 L.R.A. (N.S.) 1183; Underhill on Criminal Evidence (2 Ed.), sec. 126; People v. McMahon, 15 N.Y. 384; Whip v. State, 109 So. 697, 143 Miss. 757.
In the case of Whip v. State, 109 So. 697, 143 Miss. 757, the sheriff of Humphreys County and the county attorney went to the jail and procured a confession from the prisoner (Whip). Both testified "that these alleged confessions were voluntary; that they were made by appellant, without hope of reward or the fear of punishment; that neither of them held out any inducement whatever in order to procure the confessions, and that they knew of no such inducements having been held out to appellant by any one else, but neither of them testified that they warned the appellant that any confession he made might be used against him." This court held, in an able opinion delivered by Mr. Justice Anderson, "that the prisoner should be warned that any statement he may choose to make showing his guilt may be used against him on the trial."
Ammons v. State, 80 Miss. 592, 32 So. 9, 18 L.R.A. (N.S.) 768, 92 Am. St. Rep. 607; Carothers v. State, 121 Miss. 762, 83 So. 809; Simon v. State, 36 Miss. 636; Dick v. State, 30 Miss. 598; 18 C.J. 1296, sec. 1.
Creekmore, Creekmore Capers, of Jackson, for appellant.
Prosecuting attorneys are judicial or quasi judicial officers and as such must act impartially in the conduct of public business.
18 C.J. 1296, sec. 1.
It seems to make no difference whether the officer be a district attorney, county attorney, or city attorney so long as the officer is a prosecuting officer, but under the authorities he is a judicial officer under the decisions of many of the states, while under decisions of other states he is a quasi judicial officer.
State v. Ellis, 112 N.E. 98; Smith v. Parman, 101 Kans. 115, 165 P. 663, L.R.A. 1917F 698; Griffith v. Slinkard, 146 Ind. 117, 44 N.E. 1001; Rock v. Ekern, 162 Wis. 291, 156 N.W. 197; 18 C.J. 1318, sec. 46.
A confession made to a judicial officer not admissible if accused is not warned of his constitutional rights.
Dick v. State, 30 Miss. 593; Simon v. State, 36 Miss. 636; Whip v. State, 143 Miss. 757; Ammons v. State, 80 Miss. 592; Carothers v. State, 121 Miss. 762; Stepney v. City of Columbia, 157 Miss. 193, 127 So. 687; McDonald v. State, 70 So. 24; Daniels case, 57 Fla. 1, 48 So. 747; 1 R.C.L. 569.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
The court has heretofore held in a number of cases that no caution is necessary when confessions are made to persons having no judicial authority.
Simon v. State, 36 Miss. 636; Dick v. State, 30 Miss. 598; Carrothers v. State, 121 Miss. 762, 83 So. 809; Donahue v. State, 142 Miss. 20, 107 So. 15; Brown v. State, 142 Miss. 335, 107 So. 373; Thomas v. State, 124 So. 766; Nichols v. State, 165 Miss. 114, 145 So. 903; Wohner v. State, 175 Miss. 428, 167 So. 622; Pullen v. State, 175 Miss. 810, 168 So. 69.
The precise question was raised in the case of Keeton v. State, 175 Miss. 631, 167 So. 68, although the question was not expressly decided. From the opinion in chief and the dissenting opinion, it appears that the confession used came as a result of persistent grilling by both the district and county attorneys. It is not clear that the defendant was or was not warned or cautioned. Nevertheless, the court held the confession which was used in that case competent. It could have done so only on the theory that neither the district nor county attorney had any judicial authority.
Reference to Chapter 101 of the Mississippi Code of 1930 will show that a county attorney has absolutely no judicial authority. His duty is that of prosecuting for the state. He is a partisan and has no power to judicially hear and determine causes which are presented in court.
State v. Kent, 27 L.R.A. 686.
Appellant was indicted for the murder of Jeff Williams. His cause was submitted to a jury who found him guilty of manslaughter, and the court sentenced him to serve a term of twenty years in the state penitentiary.
It is unnecessary to detail the facts in this case. There was a conflict in the evidence as to whether or not the homicide was murder or manslaughter, and, on the other hand, whether or not the defendant killed the deceased in self-defense.
The county prosecuting attorney, called as a witness, testified that during the night, or in the early morning, after the homicide, he went to the jail, awakened the accused, and said: "I am the prosecuting attorney. I am down here making an investigation of the killing of Mr. Jeff Williams. . . . You don't have to tell me anything at all unless you care to." Thereupon the accused stated to him, among other things, that he killed Jeff Williams because he (Williams' "wouldn't flag" (we understand "flag" to mean here from the entire record that Williams was dancing with a woman and the accused desired to dance with her and wanted to take over Williams' partner); that he did not know Williams prior to this trouble; that the deceased had nothing in his hands that he saw; that he did not see him with a gun; that the accused was slightly wounded in drawing his weapon from his pocket; that he discharged the pistol three times and thought that the second shot killed Williams. The witness stated that he did not warn the accused that any incriminatory statement he made would be used against him.
The prosecuting attorney testified that the statement made to him by the accused was entirely free and voluntary, without any inducement, hope of reward, or fear of punishment being held out to him. No rebuttal evidence was offered as to whether or not the above statements were free and voluntary. On the preliminary examination the court held that the evidence was competent and overruled the general objection to the testimony, as well as the specific objection that the prosecuting attorney as a judicial officer had not warned the accused, and the evidence, the details of which we have not stated, was submitted to the jury.
At the time the so-called confession was made there was no doubt but that Hitt had shot and killed Williams. The homicide occurred at a dance in a room crowded with many people.
The only assignment of error is the action of the court in permitting the statement of the accused, as detailed by the prosecuting attorney, to go to the jury over objections, because the accused was not then and there warned by the officer that any statement he made would be used against him.
1. Assuming that the statement of the accused here in question is a confession rather than an admission which negatived the idea of self-defense, two questions are presented for decision: (1) Does the rule that a confession is incompetent when made to a judicial officer without a warning that the confession will be used against the defendant apply to such officers generally, or only when they are in the discharge of judicial duties; and (2) was the county prosecuting attorney a judicial officer within the meaning of the law of this state? We will not decide the first question, as the latter must be answered in the negative. However, we call attention to the case of Dick, Aleck, and Henry v. State, 30 Miss. 593, where Dick made a confession after the coroner had arrived at the place where the prisoner was held. The court there said: "No warning of any kind whatever, was given to the prisoners of their rights, — and that they were not bound to make any confession, by which they could criminate themselves. The confessions of the prisoners, Dick and Aleck, were not made before an officer during the course of a judicial examination. [Italics ours.] They were made to the witness, with whom they happened to be present. No effort was made, by the witness or any one else, by threats or promises to induce these parties to confess. The confession of each appears to have been perfectly voluntary. Under these circumstances, it was not necessary, in order to render their confessions competent evidence against the party making them, that they should have been informed of their rights, or warned that they were not bound to make any statement which would tend to inculpate themselves. As evidence, therefore, against the party making them, these confessions were clearly competent."
In the case of Ammons v. State, 80 Miss. 592, 32 So. 9, 18 L.R.A., N.S. 768, 92 Am. St. Rep. 607, styled "sweat-box case," the court held that sweatbox confessions are not admissible in evidence, and after ironically detailing the circumstances the court there said (page 10): "It is far from the duty of an officer to extort confession by punishment. On the contrary, he should warn his prisoner that every statement he may choose to make may be used against him on his trial." In Whip v. State, 143 Miss. 757, 109 So. 167, the substance of the same expression occurs, citing the "sweat-box case."
In Simon v. State, 36 Miss. 636, the court stated: "That no caution is necessary when the confessions are made to persons having no judicial authority, is settled by this court in Dick v. State, 30 Miss. [593], 598." In Carothers v. State, 121 Miss. 762, 83 So. 809, the court quoted with approval 16 C.J. 724, as follows (page 810): "The better and safer course for an officer to pursue, when a prisoner is about to make a statement, is to warn him that it may be used against him." The court further said: "But, in the absence of a statute requiring caution or warning, a perfectly voluntary confession is admissible. . . . `No caution is necessary when the confessions are made to persons having no judicial authority.' Simon v. State, 36 Miss. 636; Dick v. State, 30 Miss. [593], 598."
In Stepney v. City of Columbia, 157 Miss. 193, 127 So. 687, the court held (page 688): "The statement in the opinions in the cases of Ammons v. State, 80 Miss. 592, 32 So. 9, 18 L.R.A. (N.S.) 768, 92 Am. St. Rep. 607, and Whip v. State, 143 Miss. 757, 109 So. 697, 698, that `the prisoner should be warned that any statement he may choose to make showing his guilt may be used against him on his trial,' applies to judicial, but not to police, officers."
Our attention is not called to a case in this jurisdiction where the confession was free and voluntary that a reversal ensued because the officer to whom it was made did not warn the accused that any statement he made would be used against him. There are generally classed two kinds of confessions, judicial and extrajudicial, and the authorities are practically unanimous that a judicial confession is one made before a court or tribunal having some authority of disposing of the pending case. All other confessions are classed as extrajudicial, and the confession here under consideration is in the extrajudicial class.
We have called attention to these cases for the purpose of showing that the circumstances under which the confessions were made — tending to show that they were not free and voluntary — always controlled this court as to whether reversal would be had in a given case or not. There is no statute in this state requiring an officer to warn the accused, as is to be found in some other states.
2. We feel quite sure that the county prosecuting attorney is not a judicial officer in this State. Chapter 101, Code of 1930, creates the office of county prosecuting attorney, and section 4225 defines his duties, and nothing can be found in that chapter which invests him with judicial authority or confers upon him judicial power. The term judicial officer is used in two senses; "one, the popular sense which applies generally to an officer of a court; the other, the strictly legal sense which applies only to an officer who determines causes inter partes. Quasi judicial powers conferred on officers do not make such officers judicial." 34 C.J., p. 1183, section 21. Whatever may be the rule in other states construing the statutes and constitutions thereof, we must declare that, within the meaning of our law, judicial power or function is not conferred upon or invested in a county prosecuting attorney; therefore, the cases cited from other jurisdictions are not persuasive in the case at bar, nor has any case been called to our attention where a court has held that a confession to a county prosecuting attorney was made to one having judicial authority. There are quite a few cases from other jurisdictions holding that a county prosecuting attorney is a quasi judicial officer, but he is not so considered in our state.
The confession in this case was without question free and voluntary in so far as this record discloses, and was competent. We find no reversible error herein.
Affirmed.