Brown v. State

• Citation: 9 Terry 427,48 Del. 427,105 A.2d 646
• Court: United States State Supreme Court of Delaware
• Decision Date: 26 May 1954
• Parties: , 48 Del. 427 BROWN v. STATE.

Page 646

105 A.2d 646

9 Terry 427, 48 Del. 427

BROWN v. STATE.

Supreme Court of Delaware.

May 26, 1954.

David B. Coxe, Jr., Wilmington, for appellant.

Stephen E. Hamilton, Jr., Deputy Atty.Gen., Wilmington, for the State.

SOUTHERLAND, C. J., and WOLCOTT and TUNNELL, JJ., sitting.

WOLCOTT, Justice.

The appellant was indicted at the September Term, 1952 in New Castle County for murder in the first degree. She was tried in October of that year and found guilty of murder in the second degree. A motion for a new trial was made which was denied by the Superior Court on October 1, 1953, 99 A.2d 501, and the defendant was sentenced to life imprisonment. From her conviction she now appeals. The reason for the delay of approximately one year between conviction and sentence does not appear.

The appellant in her brief urges the following points as reasons for the reversal of her conviction:

(1) That the Deputy Attorney General in arguing to the jury stated the applicable principles of law in such fashion as to confuse the jury to the prejudice of the appellant.

(2) That the Court in charging the jury erroneously characterized a certain written statement as a confession and thus prejudiced the appellant in further instructing the jury as to the evidential weight to be given the purported confession.

We will consider the questions raised by the appellant in the order in which we have stated them.

The remarks addressed to the jury by the Deputy Attorney General, of which the appellant complains, were a purported explanation of the difference between express malice required to support a verdict of murder in the first degree, and implied malice required to support a verdict of murder in the second degree. In addition, appellant complains of the prosecutor's statement of the law of self-defense.

Appellant argues that the distinction between express and implied malice made by the Deputy Attorney General was contrary to the law as laid down by this court in Bantum v. State, Del., 85 A.2d 741. For the purpose of disposing of this argument, we will assume, without deciding, that the appellant's view of the prosecutor's remarks is correct.

The confusion in the mind of the jury, if any there was, resulted from statements as to the elements of express malice, and from the prosecutor's attempt to equate those elements to the particular facts of this case. As such, the statements related to the issue of murder in the first degree. The verdict reached by the jury of guilty of murder in the second degree amounts to an acquittal of the appellant of the larger crime. Such acquittal cured any errors relating to the issue of murder in the first degree. Powell v. State, Del., 86 A.2d 371.

The appellant also argues under her first point that the statement of the Deputy Attorney General to the jury purporting to state the law with respect to self-defense was erroneous, and therefore prejudicial. The particular statement under attack was that an assaulted person must rely for help upon others present before using force in his own defense. Assuming that the appellant is correct in her view as to the law of self-defense, it does not follow that this statement of the prosecutor constitutes reversible error. This is so because, not having objected to the statement at the trial, the appellant may not urge the objection upon appeal, and for the further reason that the full and correct exposition of the law of self-defense contained in the court's charge to the jury sufficiently removed any confusion that might have been caused in the mind of the jury.

We think, therefore, that the appellant's first point does not require a reversal of the conviction.

The second reason advanced by the appellant for a reversal of her conviction is that the court, in charging the jury, included the usual charge with respect to a confession of guilt. Briefly, the charge in this respect instructed the jury that a confession to be received in evidence must have been made voluntarily; that if it is reduced to writing it should be regarded as strong and convincing evidence; that the degree of credit to be given it is, nevertheless, to be decided by the jury; that the jury may accept portions and reject other portions as it sees fit; and that the jury is at liberty to judge of a confession from all the proven circumstances of the case.

The appellant contends that there was only one written statement introduced in evidence and that, therefore, the charge of the court could have had reference solely to this written statement. This being so, the appellant argues, she was prejudiced in the mind of the jury by the characterization of the writing by the court as a confession, since it was in fact not a confession but an exculpatory statement made by the appellant in justification of the homicide. The appellant, in support of the argument that the erroneous designation of a statement as a confession amounts to reversible error, cites the following authorities. Pressley v. State, 201 Ga. 267, 39 S.E.2d 478; Richardson v. State, 47 Ga. 138, 169 S.E. 770; Ransom v. State, 2 Ga.App. 826, 59 S.E. 101; People v. Sovetsky, 323 Ill. 133, 153 N.E. 615; People v. Spranger, 314 Ill. 602, 145 N.E. 706; People v. Stapleton, 300 Ill. 471, 133 N.E. 224; and 23 C.J.S., Criminal Law, § 1236.

We think that the appellant is correct in arguing that the court's charge with respect to confessions could well have caused the jury to assume from it that the written statement of the appellant introduced in evidence was regarded by the court as a confession and, as such, possibly entitled to special weight and consideration.

A confession is an express acknowledgment by a defendant of his guilt of the crime with which he is charged, or an acknowledgment by him of facts sufficient of themselves to establish the ultimate fact of guilt. 2 Wharton's Criminal Evidence, (11th Ed.), § 580; 20 Am.Jur., Evidence, § 478; State v. Donato, 106 N.J.L. 397, 148 A. 776; Brown v. State, 83 Ga.App. 650, 64 S.E.2d 313; Delnegro v. State, 198 Md. 80, 81 A.2d 241; People v. Rogers, 413 Ill. 554, 110 N.E.2d 201. To be admissible in evidence, a confession, in contradistinction to a mere admission, must be proved to have been made by the defendant voluntarily, and not by reason of any inducement or threats. 4 Wigmore on Evidence, (3rd Ed.), § 1050; Underhill, Criminal Evidence, (4th Ed.), § 265. A statement by a defendant containing admission of facts which together constitute proof of the commission of the homicide charged is a confession and admissible in evidence as such, even though additional facts are asserted in the statement by way of justification of the crime, if the additional facts are insufficient as a matter of law to establish a defense. Daniel v. State, 187 Ga. 411, 1 S.E.2d 6; Jones v. State, 130 Ga. 274, 60 S.E. 840; Moore v. State, 220 Wis. 404, 265 N.W. 101; McCloud v. State, 166 Ga. 436, 143 S.E. 558; State v. Porter, 32 Or. 135, 49 P. 964. It, of course, follows that a statement which admits the commission of the act charged, but which also gives a legal justification or excuse, is not a confession. State v. Crowder, 41 Kan. 101, 21 P. 208; State v. Picton, 51 La.Ann. 624, 25 So. 375.

With the foregoing statement of the applicable rules of law in mind, we now turn to the appellant's statement, which the State contends is a confession, but which the appellant contends is an exculpatory statement. There is no question but that the statement was made voluntarily.

The appellant's statement is written in question and answer form, the questions being typed by a police officer when they were asked, and the answers being typed by the same officer when they were given. The appellant authenticated it by making her mark upon it after it was read back to her. In substance, the following factual narrative appears from the written statement:

The appellant and the deceased had been married for eleven years and lived together at 709 Pine Street, Wilmington, in a house owned by them. On May 29, 1952, the appellant took the car, owned by herself and her husband, and, in the company of a niece and two men, made several trips and stops in the course of several hours, drinking a substantial amount of whiskey. The appellant finally parked at an early hour in the morning of May 30th in front of 715 Church Street, Wilmington, where she was discovered by her husband, the deceased. An argument followed in the course of which the deceased drew a knife and threatened to kill the appellant. He was dissuaded by a companion and drove the car back to 709 Pine Street.

At this locality, the argument continued, with the deceased demanding that the appellant give him his money. The appellant and the deceased went upstairs to their bedroom, where the appellant gave the deceased his money. As the deceased started to leave the room, the appellant said something to him, the nature of which she does not remember, and he turned around and threatened her life. At this, the appellant standing on the other side of the bed obtained a revolver she kept under a bureau, and shot at the deceased, missing him. The deceased kept walking toward the appellant around the foot of the bed. She fired again and the deceased fell, got up and staggered out of the bedroom to the hall where he again fell.

The appellant in her statement said that she was afraid of the deceased because she knew that he was a knifewielder, but she stated that as he approached her at the time of the shooting she did not see a knife or anything else in the deceased's hand. She also stated that she and the deceased had been having a lot of trouble for about eight years. ¹

The appellant now contends that the foregoing is not a confession but in fact was an exculpatory statement which could not be characterized by the trial court as a confession without prejudice to the appellant.

It is to be observed that in her statement the appellant admitted killing her...