Fincher v. People

• Decision Date: 20 March 1899
• Citation: 26 Colo. 169,56 P. 902
• Parties: FINCHER v. PEOPLE.
• Court: Colorado Supreme Court

56 P. 902

26 Colo. 169

FINCHER v. PEOPLE.

Supreme Court of Colorado

March 20, 1899

Error to district court, El Paso county.

Stanley Fincher was convicted of burglary, and he brings error. Reversed.

Plaintiff in error was charged with the crime of burglary, and convicted, and sentenced to a term in the penitentiary. The building which he was charged with having entered, and from which ore was claimed to have been stolen by him, was situate on the Orizaba mining claim, No. 1. An accomplice testified on the part of the people, that plaintiff in error participated in the commission of the crime, and entered somewhat fully into the details, including the previous arrangements made between them. Another witness on the part of the prosecution stated that plaintiff in error, after the arrest for the offense, made a voluntary statement with reference to the burglary, which was reduced to writing, and signed and sworn to by the accused. Plaintiff in error objected to the introduction of this statement, for the reason that it referred to a different transaction from that mentioned in the information, which objection was overruled. This statement purports to give in detail the conversation between himself and accomplice in arranging to commit the crime. The latter was known as 'Shorty.' In this statement the accused is credited with having said: 'We went around on the railroad to the trail in Squaw Gulch. Shorty called the mine the 'Jackson,' and said his uncle worked there.' He also states what occurred after they entered the building, and what disposition was made of the ore stolen. The accomplice, on being recalled, states that the only burglary which the defendant and he committed together was that on the Orizaba, and that the building they burglarized was on that ground; that he never stated it was the Jackson ore house, but that the defendant did, to him. Plaintiff in error, in his own behalf, testified to having signed a statement purporting to be a confession, and stated that he was told by the person who assisted in arresting him that, unless he did make a statement, he would go to the penitentiary for a number of years; that he refused to sign the statement reduced to writing by this person, and was told by him again that, unless he did, it would go hard with him that he finally did sign it, but did not know its contents. He also stated that, prior to the time when the statement was handed to him for signature, this person told him that the only thing he could do to save himself was to make the confession. After this evidence the defendant moved to have the confession withdrawn from the consideration of the jury which was overruled. Later there was evidence introduced which was material, on the question of the voluntariness of this confession, but the motion to withdraw it from the consideration of the jury was not again renewed. The court, inter alia, instructed the jury as follows: '(13) The court instructs you that there has been introduced into this case an alleged confession of the defendant. Upon that point the court instructs you that if the jury believe from the evidence that the confession alleged to have been made by the defendant was so made, and that it was the spontaneous and voluntary act of the defendant, and that it referred to the commission of the crime charged against the defendant in the information; and if the jury further believe from the evidence that such confession has been corroborated by satisfactory proof that the property, or any portion thereof, described in the information, has been stolen, and that the defendant was so situated that he had an opportunity to commit the crime,--then such confession may be entitled to great weight in your hands. * * *' In another instruction they were instructed that 'the jury are the sole judges of the weight and sufficiency of the testimony and credibility of the witnesses. * * *'

Campbell C.J., dissenting.

Orr & McKesson, for plaintiff in error.

Byron L. Carr, Atty. Gen., and Calvin E. Reed, Asst. Atty. Gen., for the People.

GABBERT, J. (after stating the facts).

Upon the record before us, counsel for plaintiff in error assign the following errors: (1) That the court erred in admitting the alleged confession, for the reason that it did not relate to the offense charged in the information; (2) that the evidence establishes that it was not voluntary; and (3) that the court erred in instructing the jury relative to its weight as evidence.

1. The charge against plaintiff in error was for the burglary of the ore house on the Orizaba mine. At the time it was claimed he made this confession, he was under arrest for this offense. He does not pretend to say in this statement what particular ore house was entered, from which the ore was stolen, or that it was the one situated on the Jackson mine, but that his accomplice said it was. He states what he and the one who assisted him did, in stealing the ore, and other details connected with the commission of the offense. His accomplice states that the only time he and plaintiff in error were engaged jointly in the commission of a crime was the one in question; so that, although the statement made does not distinctly state that it was the ore house on the Orizaba which he assisted in burglarizing, the evidence, as a whole, fully supports the inference that it was, or, at least, it was sufficient, when considered in connection with other evidence, to render it admissible, it being for the jury to determine whether or not it referred to the transaction for which he was being tried.

2. The written confession purported to be voluntary. The person who reduced it to writing testified that no promises were made the defendant, or threats used, to induce him to make the statements it contained, or sign it. At this point in the proceedings, it was offered on the part of the prosecution the only objection interposed by defendant to its reception being that it related to an offense other than the one charged in the information. At the conclusion of the evidence for the people, the defendant testified to the circumstances under which the confession was obtained, and to promises and threats made to induce him to make and sign it. His counsel then moved that it be withdrawn from the consideration of the jury, which was refused. It was the province of the court, alone, to determine whether the confession was made with that degree of freedom which would render it admissible as evidence (6 Am. & Eng. Enc. Law [2d Ed.] 554; 2 Greenl. Ev. § 219); the usual practice being to determine its admissiblity, as a preliminary question, by hearing all the evidence touching the subject of its being voluntary. This rule rests upon the proposition that the competency of evidence is a legal question, which must be determined by the court, and its credibility by the jury. Ellis v. State, 65 Miss. 44, 3 So. 188; Simmons v. State, 61 Miss. 243; Williams v. State, 72 Miss. 117, 16 So. 296. Greenleaf on Evidence, supra, in treating of the subject of confessions, says: '* * * The material inquiry, therefore, is whether the confession has been obtained by the influence of hope or fear applied by a third person to the prisoner's mind. The evidence to this point, being in its nature preliminary, is addressed to the judge, who admits the proof of the confession to the jury, or rejects it, as he may or may not find it to have been drawn from the prisoner by the application of those motives. This matter resting wholly in the discretion of the judge, upon all the circumstances of the case, it is difficult to lay down particular rules a priori, for the government of that...