Flagg v. People

• Citation: 40 Mich. 706
• Court: Supreme Court of Michigan
• Decision Date: 24 April 1879
• Parties: Orson Flagg v. The People

40 Mich. 706

Orson Flagg v. The People

Supreme Court of Michigan

April 24, 1879

Submitted April 23, 1879

Error to Benzie. Submitted April 23. Decided April 24.

Judgment reversed and the prisoner discharged.

Edwin S. Pratt for plaintiff in error. A confession by one accused of crime must be voluntary to be admissible against him. Reg v. Warringham, Leading Crim. Cases, 487; Com. v. Tuckerman 10 Gray 173; Com. v. Knapp, 9 Pick. 507: 10 Pick. 489; Com. v. Taylor, 5 Cush. 605; Com. v. Whittemore, 11 Gray 201; Com. v. Howe, 2 Allen 153; Com. v. Curtis, 97 Mass. 574; State v. Bostick, 4 Har. 563; State v. Grant, 22 Me. 171; Rex v. Upchurch, 1 Moody C.C., 465; Thomas' Case, 6 C. & P., 353; Shepherd's Case, 7 C. & P., 579; People v. McMahon, 15 N.Y. 384; Cooley's Const. Lim. [3d ed.], 314; it is inadmissible if obtained through hope or fear, Warickshall's Case, 1 Leach 263; Roscoe's Crim. Ev., 39; Tiffany's Crim. Law, 496; Queen v. Johnston, Lead. Crim. Cases, 504; or by any promise or inducement, however slight, from a person in authority, 2 Hawkins P.C. [2d ed.], ch. 46, sec. 3, n. 4, p. 604; 2 Russ. on Crimes, 826; Stephen v. State, 11 Ga. 225; State v. Harman, 3 Har. 567; or by impressing the accused with the belief that the prosecution is sure of his guilt, and frightening him into throwing himself on their mercy without promising that it shall be given, Rex v. Mills, 6 C. & P., 146; confessions have been excluded because of such statements to the prisoner as these: "I am in great distress about my irons; if you will tell where they are I will be favorable to you," Cass' Case, 1 Leach C.C., 293; "No doubt thou wilt be found guilty: it will be better for you to confess," Sherrington's Case, 2 Lewin's C.C., 123; "You had better tell the truth, or it will lie upon you, and the man go free," Rex v. Pulley, 5 C. & P., 539; "It will be better to speak the truth," Reg. v. Garner, 2 C. & K., 920; "You had better tell the truth," Couley v. State, 12 Mo. 462; Lambeth v. State, 23 Miss. 322; Spears v. Ohio, 2 Ohio St., 583.

Attorney General Otto Kirchner for the people. The confession of a prisoner is prima facie admissible against him, Norris v. Hurd, Walk. Ch., 102; Roscoe's Crim. Ev., 40, 55; the burden of proving that an inducement has been held out or improper influence used to procure it, rests on the prisoner, Rey. v. Garner, 2 C. & K., 920.

Marston, J. The other Justices concurred.

OPINION

Marston, J.

It would be somewhat difficult to properly characterize the remarkable course adopted in this case to induce the respondent to make a confession, and it would be still more difficult to say that it could under the circumstances, be used as evidence against the respondent when on trial. The course adopted by the detective, Moore, at the jail, and what took place the next day at the time the statement made was reduced to writing, was so contrary to all modern principles of fairness and justice that it could not and cannot be tolerated.

We here give the detective's own version of what took place at the jail the evening before the confession was made. "When I asked him he denied setting fire to the mill. I told him I knew he did know something about it. I spoke mild, as I talk to you now. He again denied it as usual. I told him the best thing he could do, if he knew any thing about it, was to own it up. I don't know what he said next. After a while I said I understand Jackson is arrested and has squealed on Flagg in burning the mill. He then said: There is more into it than me. I wanted him to tell who and he would not do it. I wanted him to tell who the other parties were. Told him he had better make a statement and tell who the parties were. I repeated the words perhaps a dozen times that 'you had better make a statement.' I told him he would have to see the prosecuting attorney about turning State's evidence. I said it would be better for him, because I wanted to get it out of him. I get no pay for coming up here except my expenses. The party who gets me to go out has to pay the city for my time and expenses and salary. I remained in jail but a short time. Went away and came back again about eight o'clock. I asked him who the parties were who were with him. I thought I could knock it out of him. It was because I saw he was a weak one, and I thought I could knock it out of him. It seems I did get it out of him. He asked me for a drink of whisky and I gave him a drink. We both took a drink and I left the bottle empty with him. It was a half-pint bottle and was about half full. It was before he told me he would go and make a statement that I gave him the whisky. In the morning I told Fay I had come up to take him before a justice."

Here follows what took place at the time the first confession was made the next day, and the circumstances under which it was made:

"The defendant came to the office with Mr. Moore, a detective. He was...