Enoch v. Commonwealth

• Decision Date: 15 January 1925
• Citation: 141 Va. 411
• Parties: ENOCH v. COMMONWEALTH.
• Court: Virginia Supreme Court

Page 411

141 Va. 411

ENOCH v. COMMONWEALTH.

Supreme Court of Virginia, Richmond.

January 15, 1925.

1. CONFESSIONS — Voluntary — Persistent Questioning by Officers — Case at Bar. — In the instant case, a prosecution for homicide, accused was arrested without a formal warrant, and from eleven o'clock Saturday morning until about one o'clock that night he was practically all of the time under close and constant examination by not less than two police detectives at a time, and he took neither food nor water, although it was offered to him. During this examination accused fainted. After the fainting spell he was carried to the scene of the murder and the questioning continued. He was also taken to the house where the body of the murdered girl lay in her coffin. At one o'clock he was sent to the police station and locked up for the night. On Sunday he was again questioned from about three to six o'clock in the afternoon till a confession was made by him. No warning was at any time given the accused that his statements might be used against him, and his counsel was not present at any of the examinations. He was time and again told that he had committed the offense and was repeatedly urged to tell all about it.

Held: That the confession was not voluntary. While no rewards of a temporal nature were offered to the accused, and no threats of physical violence or additional punishment were made, the confession was obtained under such duress — such "mental terror and physical exhaustion" — as would have avoided a will or a contract made under like circumstances.

2. CONFESSIONS — Must be Voluntary — When Voluntary — Absence of Threats. — The voluntariness of a confession is not established merely because it is shown that the confession was not induced by a promise or a threat. A confession is voluntary in law if, and only if, it was, in fact, voluntarily made. A confession may have been given voluntarily, although it was made to police officers, while in custody, and in answer to an examination conducted by them. But a confession obtained by compulsion must be excluded whatever may have been the character of the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise.

3. CONFESSIONS — Persons in Authority — Police Detectives. — Police detectives are persons in authority.

4. CRIMINAL LAW — Right to Advice and Aid of Counsel — Examination of Accused Prior to Trial — Counsel's Right to Visit Accused in Jail — Case at Bar. — One of the rights of one accused of crime is to have the advice and aid of counsel. This right of the benefit of counsel exists at all reasonable hours, and certainly while the prisoner is being interrogated by his prosecutors. Counsel for accused is put in a favored class by section 2858 of the Code of 1919, and allowed to visit him in jail while others are excluded. And it is immaterial that no formal warrant for the arrest of accused had been issued, where a felony had been committed and the police had reasonable ground for believing that the accused was the perpetrator and had arrested and were interrogating him.

5. WITNESSES — Self Crimination — Section 4778 of the Code of 1919 — Where Accused had Testified on the Admissibility of his Alleged Confession. — In the instant case the Commonwealth was permitted, over the protest of the accused, to call him as a witness to testify for the Commonwealth. The accused had testified before the judge, in the absence of the jury, on the admissibility of an alleged confession, and the Commonwealth claimed that he had thereby waived his privilege of not giving evidence against himself, and was subject to cross-examination as any other witness, under the terms of section 4778 of the Code of 1919.

Held: That accused had not waived his privilege of not giving evidence against himself before the jury by testifying before the judge on the admissibility of his alleged confession.

6. WITNESSES — Self Crimination — Section 4778 of the Code of 1919 — Where Accused had Testified on the Admissibility of His Alleged Confession. — Under section 4778 of the Code of 1919, providing that where accused is sworn and examined in his own behalf, he shall be deemed to have waived his privilege of not giving evidence against himself, where accused before the judge, and in the absence of the jury, testified as to the admissibility of his alleged confession, so far as the alleged confession was concerned, having testified in his own behalf, he waived his privilege and became subject to cross-examination as any other witness, but not as to other matters on which he was not examined, such as his guilt or innocence, and upon which he could not have been examined.

7. STATUTES — Construction — Looking to the Evil Intended to be Cured. — In seeking to ascertain the meaning of a statute of doubtful construction, one of the fundamental rules of construction is to look to the evil intended to be cured as well as the remedy provided.

8. WITNESSES — Self Crimination — Construction of Section 4778 of the Code of 1919. — Section 4778 of the Code of 1919, giving accused the right to testify and providing that when he so testifies he shall be deemed to have waived his privilege of not giving evidence against himself, must be given a reasonable construction, and it is not reasonable to say that an accused can be cross-examined by the Commonwealth on subjects upon which he was not allowed to testify in his own behalf.

9. WITNESSES — Self Crimination — Constitutional Guaranty — Construction of Statute Giving Right to Testify on Condition of Waiver of Privilege in Favor of Accused. — The privilege of silence is a constitutional guaranty which cannot be taken away or impaired by legislation. But the State may give its consent for the accused to testify, and may name the terms on which its consent is given. When the State consents, it does so in the interest and for the benefit of the accused, and every qualification of, or condition annexed to, such consent detracts from its value. It would seem, therefore, that the statute giving the accused the right to testify in his own behalf should be liberally construed in favor of the accused, so as to give him the fullest right to testify in his own behalf, and that this right should not be any further impaired than the language of the statute necessarily requires.

10. WITNESSES — Self Crimination — Section 4778 of the Code of 1919 — "In Any Case of Felony." — The language of section 4778 of the Code of 1919, "in any case of felony" can only mean on the trial of any case of felony, and there can be no trial of a felony case on a plea of not guilty without the presence of a jury.

11. WITNESSES — Self Crimination — Section 4778 of the Code of 1919 — Collateral Matters — Where Accused had Testified on the Admissibility of His Alleged Confession. — Collateral matters, such as motions for a continuance, the qualifications of jurors, change of venue, or the admissibility of a confession, though incident to the trial by the jury, are questions to be decided by the court. It could never have been intended that the accused should be deemed to have waived his constitutional right of silence before the jury because he had testified to such collateral matters before the judge in the absence of the jury. So far as the merits of the case are concerned, the guilt or innocence of the accused, the accused had not been sworn and examined in his onw behalf "in any case of felony." He was sworn and examined on a collateral matter.

12. WITNESSES — Self Crimination — Section 4778 of the Code of 1919 — Where Accused had Testified on the Admissibility of His Alleged Confession. — Even if the language of the statute (section 4778 of the Code of 1919) warranted the construction that because accused had testified before the judge on the question of the admissibility of an alleged confession he had thereby waived his privilege of not giving evidence against himself before the jury, the court would not place that construction upon it, if a substantial though limited effect could be given to the language of the statute which would be less drastic in its effect, and more just and humane in its operation.

13. STATUTES — Construction — Literal Meaning of Words — Limited Construction. — As a general rule, where they are explicit, the courts are not at liberty to say that the legislature intended something different from what the language expresses. This general rule is, however, subject to the qualification that if the court is satisfied, the literal meaning of the words would extend the act to cases the legislature never designed to include, it will restrain their operation within narrower limits so as to carry out what was the manifest intention.

14. STATUTES — Construction — Sprit and Reason of the Law. — A statute should be construed with reference to its spirit and reason; and the courts have power to declare that a case which falls within the letter of the statute is not governed by the statute, because it is not within the spirit and reason of the law and the plain intention of the legislature.

15. STATUTES — Construction — Reasonable Doubt as to Meaning of Criminal Statute — Reasonable Doubt as to Law. — If there is a reasonable doubt about the construction of a criminal act, the accused is entitled on appeal to the benefit of it, for he is as much entitled, at least in the appellate court, to the benefit of a reasonable doubt about the law as about the facts.

16. HOMICIDE — Admissibility of Evidence — Lewd Pictures Found in Possession of Accused. — In a prosecution for murder of a young woman who had first been raped and then murdered, the trial court admitted in evidence over the objection of the accused certain lewd pictures of naked women found on the accused on the day of his arrest.

Held: That the question of the admissibility of these pictures was one resting in the sound discretion of the trial court, and, as its judgment was...