Harrold v. Territory of Oklahoma

Decision Date26 March 1909
Docket Number2,600.
Citation169 F. 47
PartiesHARROLD v. TERRITORY OF OKLAHOMA.
CourtU.S. Court of Appeals — Eighth Circuit

(Syllabus by the Court.)

An involuntary confession of an accused person, incompetent to prove the case of the prosecutor in chief, is incompetent to impeach the accused after he has testified in his own behalf relative to other subjects only, (1) because such a confession is unworthy of belief, and (2) because its introduction would violate the constitutional guaranty that the accused shall not be compelled to testify against himself.

The waiver by an accused person testifying in his own behalf of his constitutional guaranty against being compelled to testify against himself does not extend beyond a legal cross-examination upon the subjects of his direct examination.

Impeaching questions relative to the involuntary confession not treated in the direct examination of the accused, and the introduction of such a confession to contradict the answers to such questions, violate the constitutional guaranty.

The party against whom a witness is called has the right to a full and fair cross-examination of him upon the subjects of his direct examination.

The party on whose behalf a witness is called has the right to restrict his cross-examination to the subjects of his direct examination.

The violation of these rights is not discretionary with the courts, but is reversible error.

It is only beyond the limits of the exercise of these rights that the extent of the cross-examination of witnesses is within the discretion of the courts.

It is the duty of the court to determine whether or not an alleged confession by an accused person was voluntary or involuntary and it is error to permit the introduction of the evidence upon that question before the jury.

S. H Harris, W. F. Wilson, and Claude Nowlin, for plaintiff in error.

Charles West and W. C. Reeves, for defendant in error.

Before SANBORN and ADAMS, Circuit Judges, and RINER, District Judge.

SANBORN Circuit Judge.

The defendant below was indicted, tried, and convicted of stealing two steers. Many errors in the trial are assigned, and, among others: (1) That over the timely objection and exception of the accused the court permitted evidence upon the question whether or not a confession he was alleged to have made was free and voluntary to be introduced before the jury; (2) that after the court had decided that it was involuntary and had excluded it from the evidence, and after the accused had testified in his own behalf, wherein he said nothing relative to the alleged confession, it allowed the prosecutor to ask him on cross-examination whether or not he had made the statements in the alleged confession to the county attorney and others; and (3) that after he had denied that he made them the court permitted the introduction in evidence of proof of the confession.

These rulings question two established principles of criminal jurisprudence: First, a confession by the accused of his guilt or of facts tending to establish it, obtained by the compulsion or inspiration of hope, fear, or any other sort of inducement, is incompetent evidence against him because it is not worthy of belief (1 Wigmore on Evidence, Sec. 822, and cases cited at pages 932, 933); and, second, no person 'shall be compelled in any criminal case to be a witness against himself' (5th Amend. Const. U.S.; Wilson's Ann. St. Okl. Sec. 5157; Bram v. United States, 168 U.S. 532, 542, 557, 558, 559, 565, 18 Sup.Ct. 183, 42 L.Ed. 568; Sorenson v. United States, 143 F. 820, 823, 824, 74 C.C.A. 468, 471, 472). The existence of these rules is not denied, but it is contended that they are limited in their effect to the evidence for the prosecution in chief, and that they have no application to that offered during the cross-examination of the accused or in rebuttal of his answers to impeaching questions. The two rules are not coextensive in effect, for an accused person may waive his constitutional privilege under the second rule and submit to examination without making hearsay or other incompetent evidence admissible to convict or to impeach him.

Let it, therefore, be conceded, for the purpose of the consideration of the effect and extent of the first rule, that when the defendant testified in his own behalf he waived his privilege to decline to be a witness against himself under the second rule.

Did that waiver make his incompetent confession admissible evidence against him under the first rule? The reason for the first rule is that confessions induced by hope or fear inspired by promises, threats, or surrounding circumstances are likely to be untrue, are unreliable, incredible, and, therefore, not evidence of the truth.

In 2 Hawkins, Pleas of the Crown (8th Ed.) p. 595, Sec. 34, there is an admirable statement of the law upon this subject, which seems to have been copied from a note to the sixth edition of that work, and which reads in this way:

'And as the human mind under the pressure of calamity is easily seduced, and liable, in the alarm of danger, to acknowledge indiscriminately a falsehood or a truth, as different agitations may prevail, a confession, whether made upon an official examination or in discourse with private persons, which is obtained from a defendant either by the flattery of hope, or by the impressions of fear, however slightly the emotions may be implanted, is not admissible evidence; for the law will not suffer a prisoner to be made the deluded instrument of his own conviction.'

In Warickshall's Case, 1 Leach, Cr. C. (3d Ed.) 298, the court said, in 1783:

'A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of the crime to which it refers. But a confession forced from the mind by the flattery of hope or by the torture of fear comes in so questionable a shape when it is to be considered as evidence of guilt that no credit ought to be given to it, and therefore it is rejected.'

In Reg. v. Doyle, 12 Ont. 354, Wilson, C.J., in delivering the opinion of the court, said:

'The reason the confession in such a case is not admissible is that in law it cannot be depended upon as true; for one in such a case may say, and is likely to say, that which is not the truth if he thinks it to his advantage to do so.'

In Commonwealth v. Morey, 1 Gray (Mass.) 462, Shaw, C.J., said:

'The ground on which confessions made by a party accused, under promises of favor or threats of injury, are excluded as incompetent is, not because any wrong is done to the accused in using them, but because he may be induced, by the pressure of hope or fear, to admit facts unfavorable to him without regard to their truth, in order to obtain the promised relief or avoid the threatened danger, and therefore admissions so obtained have no just and legitimate tendency to prove the facts admitted.'

In State v. Novak, 109 Iowa, 717, 79 N.W. 465, the opinion reads:

'The reason for the rule excluding involuntary confession is not based on the thought that truth thus obtained would not be acceptable, but because confessions thus obtained are unreliable. The rule is in the interest of safe and reliable evidence. * * * The essence of the rule is that when the confessions are made the conditions as to hope or fear are such as to make them unsafe as evidence.'

The Statutes of Oklahoma (Wilson's Rev. & Ann. St. 1903) provide (section 5494): 'That a person charged with crime, shall at his own request, but not otherwise, be a competent witness and his failure to make such request shall not create any presumption against him nor be mentioned at the trial.'

Now the confession of this defendant was incompetent evidence against him. Did the fact that he availed himself of the privilege accorded to him by this statute make it competent? If so, did that fact make all incompetent evidence admissible against him? Did it make the confession and all other facts tending to establish his guilt provable against him by hearsay? Did it make his disclosure regarding his guilt if any, to his attorney for the purpose of his defense, admissible in evidence against him? All these questions must be answered in the negative, because the reason of the rule, and, therefore, the rule itself, apply with at least as much force to an involuntary confession after, as before, it is denied by the testimony of the accused. When it is offered by the prosecutor in chief, it is incompetent evidence to overcome the simple presumption of the defendant's innocence, because it is unworthy of belief. It cannot be more worthy of belief, or more competent to overcome both that presumption and the testimony of the defendant, after he has denied that he ever made it. Shephard v. State, 88 Wis. 185, 59 N.W. 449; Morales v. State, 36 Tex.Cr.R. 234, 36 S.W. 435, 846; Wright v. State, 36 Tex.Cr.R. 427, 37 S.W. 732, 734; Walton v. State, 41 Tex.Cr.R. 454, 55 S.W. 566.

The privilege granted to an accused person of testifying on his own behalf would be a poor and useless one indeed if he could exercise it only on condition that every incompetent confession induced by the promises, or wrung from him by the unlawful secret inquisitions and criminating suggestions, of arresting or holding officers, should become evidence against him.

The opinions of the courts in Commonwealth v. Tolliver, 119 Mass. 312, 315, Hicks v. State, 99 Ala. 169, 13 So. 375, State v. Broadbent, 27 Mont. 342, 71 P. 1 Quintana v. State, 29 Tex.App. 401, 16 S.W. 258, 25 Am.St.Rep. 730, Phillips v. State, 35 Tex.Cr.R. 480, 34 S.W. 272, in which the opposite conclusion has been reached, have been read and thoughtfully considered, but they present...

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