Opinion
No. 35698.
November 13, 1944.
CRIMINAL LAW.
Conflict in evidence in a criminal prosecution was for determination of the jury.
APPEAL from the circuit court of Jackson county, HON. L.C. CORBAN, Judge.
F.W. Elmer, of Biloxi, for appellant.
The trial court erred in refusing to exclude the confession offered by the state.
Whip v. State, 143 Miss. 757, 109 So. 697; Clash v. State, 146 Miss. 811, 112 So. 370; Mathews v. State, 102 Miss. 549, 59 So. 842; White v. State, 129 Miss. 182, 91 So. 903, 24 A.L.R. 699; Fisher v. State, 145 Miss. 116, 110 So. 361; Jones v. State, 133 Miss. 684, 98 So. 150; Johnson v. State, 107 Miss. 196, 65 So. 218, 51 L.R.A. (N.S.) 1183; Zung Sung Wan v. United States, 266 U.S. 1, 289 F. 908.
The trial court erred in permitting the state to introduce a part of the confession and not the entire confession. The rule is well settled that statements or confessions of the party to be affected must be delivered to the jury precisely as they were made; that certain facts cannot be extracted and detailed to the jury, and other parts withheld. It is for the jury to give such weight to the whole as in their opinion it merits, and although the whole of the statement or a confession must be considered together, yet the jury may, unquestionably, on this as on every other point of evidence, believe one part and disregard the other.
McCann v. State, 13 Smedes M. (21 Miss.) 471; Coon v. State, 13 Smedes M. (21 Miss.) 246; Johnson v. State, supra.
The state's case must stand or fall on the confession of appellant defendant. We contend that the confession was not free and voluntary but was exhorted under threats and fear and should have been excluded.
The venue, and we are now raising this for the first time, could not have been established except by the confession of the defendant, and we respectfully submit that the trial court should have granted peremptory instructions requested by the defendant appellant.
The court erred in granting the following instruction: "The Court instructs the jury for the State that if you believe from the evidence beyond a reasonable doubt that defendant Henry Lee Wiley in Jackson County, Mississippi, on or before the 15th day of October, 1943, wilfully, unlawfully, feloniously and of his malice aforethought did commit an assault upon Nellie Opal Ricks, a human being by striking her with a piece of iron, upon the side of her head and by tying her clothing around her neck, from the effects of which the said Nellie Opal Ricks died, and that said assault was made by said defendant without authority of law and with the deliberate design to effect the death of said Nellie Opal Ricks, you should find defendant guilty as charged in the indictment." We submit that this instruction telling the jury to convict the defendant if they believe the evidence beyond a reasonable doubt was not proper as there is a greater burden upon the state than to believe the evidence beyond a reasonable doubt and that there is no evidence in the record that Nellie Opal Ricks died by being hit by a piece of iron or by the tying of her clothes around her neck. There is not one word in the entire record by any witness as to what caused the death of Nellie Opal Ricks.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
Nellie Opal Ricks, a young girl 13 years of age, was last seen alive October 15, 1943, at a picture show in Pascagoula, Mississippi; on Sunday morning, October 17, following, about 8 o'clock, her body was found a short distance from the street in the City of Pascagoula, which street was between the home of deceased and the picture show, and the street she would naturally use upon returning to her home; upon examination it was conclusively shown that she had been murdered. M.C. Porter, the funeral director who prepared the body for burial, and who was called to the scene to pick up the body, testified that the body was about fifteen or twenty feet from the sidewalk on South Pascagoula Street, down a little hollow, and that she was lying on her right side, and that she had been choked to death with step-ins. He also testified that the body was stiff and, in his opinion, she had been dead twenty-four to thirty-six hours; that in addition to being choked to death there were other bruises and marks upon her body; that there was a lick on the right temple of her head which left a dent or depression; that there was other evidence which indicated that she had been raped. Some four or five months later officers of the City of Pascagoula had the appellant in custody and while investigating, as the record reflects, other crimes, the appellant on February 23, 1944, confessed to the killing of Nellie Opal Ricks.
Appellant contends that the confession was not free and voluntary but that it was coerced by fear and duress. Counsel for appellant has set out in his brief excerpts of the testimony and the testimony of the various witnesses who testified touching the admissibility of the confession and, in view of this fact, I will forego the repetition of all this testimony. Suffice it to say that a preliminary examination was held by the court in the absence of the jury.
The most that can be said is that the evidence as to whether the confession was free and voluntary was conflicting, and the court has repeatedly held that where the evidence is conflicting on the admissibility of a confession, this court will not disturb the trial court's finding, unless it appears to this court to be clearly contrary to the evidence.
Stubbs v. State, 148 Miss. 764, 114 So. 827; Buckler v. State, 171 Miss. 353, 157 So. 353; Wohner et al. v. State, 175 Miss. 428, 167 So. 622; Jones v. State, 58 Miss. 349; Ellis v. State, 65 Miss. 44, 3 So. 188, 7 Am. Rep. 634; Brown v. State, 142 Miss. 335, 107 So. 373; Cooper v. State, 194 Miss. 592, 11 So.2d 207; Parker et al. v. State, 194 Miss. 895, 13 So.2d 620.
The written confession also contains statements of the commission of other crimes which clearly were not relevant to the issue and these statements were not read or submitted to the jury. Counsel contends that all of the confession should have been omitted or, in other words, that it was not admissible for the reason that it contained admissions of other crimes.
The general rule is that a confession containing an admission of guilt of a separate offense and independent of one inquired into, is not admissible, however, it is obvious that the admission or confession of other crimes was not relevant and the court correctly refused to submit this part to the jury.
Gunter v. State, 180 Miss. 769, 178 So. 472; Tyler v. State, 159 Miss. 223, 131 So. 417; McCann v. State, 13 Smedes M. (21 Miss.) 471; 2 Wharton's Criminal Evidence, 11 Ed., Sec. 606, p. 1016; Underhill on Criminal Confessions, 2 Ed., Sec. 138, p. 266, 4 Ed., Sec. 265, pp. 513, 514.
The corpus delicti was fully established in this case.
Brooks v. State, 178 Miss. 575, 173 So. 409.
The appellant's defense in this case was an alibi and the question presented as to the guilt or innocence of defendant was clearly a question for the jury.
Appellant also argues that the court erred in granting the state an instruction found on page 8 of the record. His objection appears to be based upon the ground that there is no evidence in the record as to what caused the death of Nellie Opal Ricks. M.C. Porter testified that she was choked to death.
I submit that in this case the confession is consistent with all of the physical facts and circumstances and is ample to support the verdict of guilt and that the judgment of the lower court should be affirmed.
The conflict in the evidence was, of course, for the determination of the jury, and that for the state fully justifies the verdict. No error appears in the overruling by the court below of the appellant's objection to the admission of his confession in evidence, nor in the instruction for the state of which he complains.
Affirmed, and Friday, December 22, 1944, is fixed for the date of execution.