Opinion
No. 35387.
May 24, 1943. Suggestion of Error Overruled June 25, 1943.
1. INFANTS.
The dismissal of felony prosecution against a minor under 18 years of age, and committal of the defendant to the juvenile court rests in the sound discretion of the trial judge subject to review only for abuse of discretion (Laws 1940, ch. 300, secs. 9, 20).
2. INFANTS.
Trial court did not abuse its discretion in refusing to dismiss prosecution of 16 year old boy for murder and commit him to the juvenile court (Laws 1940, ch. 300, secs. 9, 20).
3. CRIMINAL LAW.
Conflicting evidence as to the voluntary character of confessions made by each of three defendants charged with murder warranted admission in evidence of the confessions.
APPEAL from circuit court of Hinds county, HON. J.F. BARBOUR, Judge.
H.T. Huber, F.S. Dunning, and Jack M. Greaves, all of Canton, and Ross R. Barnett, C.B. Snow, and Forrest B. Jackson, all of Jackson, for appellant.
There is clearly presented to the court the application of Chapter 300 of the Laws of 1940 in a case where a minor of the age of sixteen years has been indicted for a felony.
Section 9 of the act defines "delinquent child." This section provides that the words "delinquent child" shall include any child under eighteen years of age who violates any of the laws of this state, etc. This section of the act further provides "any child committing any of the acts herein mentioned shall be deemed a `delinquent child,' and shall be proceeded against as such in the manner hereinafter provided." Thus, it will be seen that by said Section 9 of the act any child under eighteen years of age who violates any of the laws of the state, no matter what the crime may be, murder, arson, larceny, gambling or trespass, is made a delinquent child. This section of the act is mandatory that a "delinquent child" shall be proceeded with as provided in the succeeding sections of the act.
Section 15, still having to do with a "delinquent child," that is, one who has violated any of the laws of the state, provides that the juvenile court shall be in session for the purpose of disposing of cases under the act at all times, and further provides that when any child eighteen years of age or under is arrested on any charge (no matter what the nature thereof may be) such child, "instead of being taken before a justice of the peace or police court, shall be taken directly before the juvenile court or probation officer." Note the use of the word "shall." The act further provides that if a mistake be made and the child should be taken before a justice of the peace or a police court "it shall be the duty of such justice of the peace or city judge to transfer the case to said juvenile court" for further proceedings. Note again the use of the words "shall be the duty."
Now in this case there was no preliminary hearing. The defendant did not have a lawyer until the indictment was returned and counsel were appointed. If a preliminary hearing had been had and the case called before a justice of the peace, it would have been mandatory upon that officer to have immediately transferred the case to the juvenile court. Does it not logically follow that this same situation would apply when the child involved was brought before the circuit court?
To construe the act in such manner that a person who was unable to employ counsel and, therefore, receive the benefit of an appearance before a justice of the peace and thus the benefit of the act, while one who was able to employ counsel and protect his rights would receive the benefit thereof, is a denial of due process.
Section 19 of the act provides that the juvenile court, when it deems it proper and necessary, may order a child under eighteen years of age who is charged with the commission of a misdemeanor to be prosecuted under the laws of the state; and, further, that no child under eighteen years of age shall be prosecuted without such order being first so entered. This section is clearly limited to a child charged with the commission of a misdemeanor.
Section 20 of the act provides that when it appears in any criminal court that a person being prosecuted for a felony is a child under eighteen years of age, such court shall have authority to order the prosecution dismissed and the child committed to the juvenile court etc.
Section 21 of the act provides that the act be liberally construed, that the purposes of the act be carried out, and that the interests of the child shall be the object in view of proceeding against it.
If Section 20 of the act is read alone, it would appear that it is discretionary with the trial court in a trial for a felony of a child under eighteen years of age to order the prosecution dismissed and the child committed to the juvenile court, but when we read this section in connection with Sections 9, 15, and 19, a very serious doubt is raised in our minds but that the legislature has passed a law the effect of which is to give the juvenile court exclusive jurisdiction in case any crime is committed by a child under eighteen years of age. And this is particularly true in view of the provisions of Section 21 of the act above referred to.
Section 9 brings any child under eighteen years of age who has committed any crime under the provisions of the act. Section 15 provides that the juvenile court shall be in session at all times for the purpose of disposing of cases under the act, and, also, that if any child under eighteen years of age is arrested on any charge he shall be taken before the juvenile court. This section does not provide that he may be taken before the juvenile court, but that he shall be taken before the juvenile court. It further provides that if he should be taken before a justice of the peace or a police court, this officer shall transfer the case to the juvenile court. It is made the duty of the officer so to do. These sections appear in the act along with Sections 19 and 20.
The only substantial evidence introduced on the trial of this case that would connect the defendants with the commission of this crime were certain confessions made at different times by the defendants, appellants here.
The facts are these. The defendant James Lewis and George Lewis were lodged in the Hinds County Jail. On the night that they were brought to the jail, Captain Neely, who was on duty at the time, was told by the deputy sheriffs of Madison County that they had committed a crime in said county; that they had not been able to complete the investigation (intimating that they had not been able to obtain a confession from the boys) and wanted him (Captain Neely) and Mr. Crawford to see if they could find out anything about the crime.
These boys were placed in separate cells, and later James Lewis was taken from his cell and placed in what was called an investigation cell or room. This room was dark and had no chairs, windows or bed in it, and he was kept in this dark room for approximately two hours, at which time he was then carried to what is known as a consultation room, in which Captain Neely, together with Mr. Currie who had come on duty, questioned the boy. The boy testifies that Captain Neely struck him and made his nose bleed, and told him that he was going to tell him something or else he would beat his ears off with a little flat back thing; that he then answered all of Captain Neely's questions and was then carried down to the sheriff's office where he made the confession, which was made because he was afraid of what Captain Neely would do to him. Captain Neely testified that he did not threaten James Lewis at that time or at any other time, except that he did tell him that everything he said was a lie and unless he told the truth he would not be doing himself or anybody else justice.
George Lewis testified that on the night he made and signed the confession Captain Neely came up on got him and said, "Nigger, didn't you do that?," and on his denial further said, "All right; you had better own up to it; if you don't you will get killed; if you do, you will only get fifty years in the penitentiary." Captain Neely then asked him, "Wouldn't you rather get fifty years than get killed?" George further testified that when he made and signed the confession he saw James in the sheriff's office and there was blood on his pants; that he was scared then not to make a confession; that at the time he made a confession to Mr. James (the second confession) he was still scared of what Captain Neely would do to him.
Elijah Parker testified that when the officers arrested him he was put in a car to be brought to the sheriff's office; that Captain Neely got on the back seat with him and asked if he committed the crime, and on his denial said, "Well, you will tell it when they put you in the electric chair and your eyes pop out." Captain Neely then told him if he would confess the law would do nothing to him, except put him in the penitentiary. Elijah further testified that before he made or signed the confesesion the officers also told him that the two boys, James and George Lewis, had already made a confession to the crime.
It is submitted that it is apparent from the record in this case that these negro boys were ignorant, illiterate, uneducated and could be easily led or influenced, and when they were put in jail, questioned for hours at the time, with the thought imbedded in their minds that if they confessed or made a statement it would go easier with them, it was not a very hard job to wring a confession from them.
The above, together with the fact that the defendants had been made afraid or put in fear of what Captain Neely would do to them, makes the confessions or statements involuntary and inadmissible as evidence.
Garrard v. State, 50 Miss. 147; Carter v. State (Miss.), 24 So. 307; Draughn v. State, 76 Miss. 574, 25 So. 153.
A confession induced by the statement of the officer in charge of the prisoner that it might go lighter with the latter if he told all about it, and that if he did the shooting he had better say so, was involuntary and inadmissible.
Harvey v. State (Miss.), 20 So. 837.
Confessions are not looked on in the law with a great deal of favor when given under the most favorable circumstances, and before a confession is admissible the evidence must exclude every reasonable doubt that it was procured under threat of punishment or promise of reward.
Whip v. State, 143 Miss. 757, 109 So. 697.
In order to make competent a confession of guilt by a defendant charged with crime, the evidence of such confession must be so strong as to exclude every reasonable doubt that it was procured from the defendant under a threat of punishment, or a promise of reward. It must exclude every reasonable doubt that the confession was freely and voluntarily made.
Ellis v. State, 65 Miss. 44, 3 So. 188, 7 Am. St. Rep. 634; Williams v. State, 72 Miss. 117, 16 So. 296; State v. Smith, 72 Miss. 420, 18 So. 482; Johnson v. State, 107 Miss. 196, 65 So. 218, 51 L.R.A. (N.S.) 1183.
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.
Whitley v. State, 78 Miss. 255, 28 So. 852, 53 L.R.A. 402, note; Reason v. State, 94 Miss. 290, 48 So. 820; McMaster v. State, 82 Miss. 459, 34 So. 156.
See also Durham v. State (Miss.), 47 So. 545; Ford v. State, 75 Miss. 101, 21 So. 524; White v. State, 129 Miss. 182, 91 So. 903; Johnson v. State, 107 Miss. 196, 65 So. 218; Jones v. State, 133 Miss. 684, 98 So. 150; Fisher v. State, 145 Miss. 116, 110 So. 361; McDowell v. State, 189 Miss. 617, 198 So. 564.
It is submitted with deference that the confessions offered on behalf of the state, and the only evidence that connected these defendants directly with this crime, were inadmissible for the reasons that they were not free and voluntary, but were induced and inspired by fear and hope of reward; that, therefore, since there was no other evidence but these confessions that connected the defendants, appellants here, with this crime and they were inadmissible, the cause should be reversed and judgment rendered here for appellants, or if wrong in this the cause should be reversed and remanded for a new trial.
Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, for appellee.
The main assignment of error argued in the brief for the appellants is that the confessions were not freely and voluntarily made and that the lower court erred in holding that they were competent. Preliminary inquiry was held by the court in the absence of the jury as to the competency of the confessions introduced and testified to. The court, after hearing all of the witnesses, including the appellants, held that the confessions were competent.
Counsel for appellants cite a number of authorities holding that confessions in those particular cases cited were not competent. However, these cases are not applicable to the case at bar. Our court held in the case of Buckler v. State, 171 Miss. 353, 157 So. 353, that the ruling of the trial judge in passing upon the conflicting evidence, bearing upon the competency of the confession, would not be disturbed unless his ruling was clearly contrary to the weight of the evidence.
A confession, in other respects admissible, is not rendered incompetent because it was not the spontaneous utterance of a prisoner. The fact that the confession was obtained by persistent questioning is not sufficient alone to exclude it if the confession emanates from the free will of the accused and without the inducement of hope or fear.
Keeton v. State, 175 Miss. 631, 167 So. 68.
The admissibility of a confession is for the determination of the trial judge; and, when admitted, the jury may consider it in the light of the evidence by which it was obtained and give it such weight and credibility as they think it is entitled.
Brooks v. State, 178 Miss. 575, 173 So. 409; Cooper v. State, 194 Miss. 592, 11 So.2d 207; Williams v. State (Miss.), 12 So.2d 156.
As to the appellant, George Lewis, who it is admitted is only sixteen years of age, an additional assignment of error is that the court erred in overruling motion to dismiss the prosecution and commit him to the juvenile court in Madison County, Mississippi This assignment of error is based upon Chapter 300 of the Laws of 1940, which act is known as the Juvenile Act. Counsel for appellants admits that the act is not clear and for this reason the question is submitted to the court. Several sections of the act are not clear but I deem it unnecessary to enter into a discussion of the various provisions, as Section 20, in my opinion, plainly provides that every person over the age of fourteen years can be proceeded against criminally. This section clearly leaves it to the discretion of the circuit court.
The appellants, Elijah Parker, Walter James Lewis and George Lewis, were jointly indicted in Madison County for the murder of T.H. Gober. The venue was changed to Hinds County, where they were jointly tried and convicted, Parker being sentenced to death, and the two Lewises to life imprisonment in the state penitentiary. All of them appealed, but Walter James Lewis died after the appeal was taken.
When the crime was committed, and when the case was tried in the court below, the two Lewises were both under 18 years of age, George being 16 years old. A motion was made by their counsel in the court below to dismiss the prosecution as to them, and to commit them to the juvenile court of Madison County, where they lived. This ruling of the court is assigned for error by counsel for George Lewis. His contention that he is a delinquent within the meaning of section 9 of chapter 300, Laws 1940, which established our juvenile courts, is correct. But his contention that because thereof the court below erred in trying and punishing him on this indictment is negatived by section 20 of the statute, which provides that, "Whenever it shall appear to any criminal court of this state that any person being prosecuted in such court for a felony is a child under eighteen years of age, such court shall have authority to order such prosecution dismissed and to order such child to be committed to the juvenile court for such action and disposition as said juvenile court may think proper in the premises."
Under this section the dismissal of such a prosecution, and the committal of the defendant therein to the juvenile court rests in the sound discretion of the trial judge, subject only to review for abuse thereof, and such does not appear here.
The only other error assigned is that the court below erred in admitting a confession made by each of the defendants that Gober was assassinated by them, without which the evidence is insufficient to connect them therewith.
The evidence for the state discloses that these confessions were freely and voluntarily made; but that of the appellants is to the effect that they were coerced. The trial judge accepted the state's version of the matter, and nothing appears in the evidence to warrant us in holding that he erred in so doing.
Affirmed, Elijah Parker's death sentence to be executed on Thursday, July 1, 1943.