Heldt v. State

• Decision Date: 24 November 1886
• Citation: 20 Neb. 492,30 N.W. 626
• Parties: HELDT v. STATE.
• Court: Nebraska Supreme Court

20 Neb. 492

30 N.W. 626

HELDT

v.STATE.

Supreme Court of Nebraska.

November 24, 1886.

Syllabus by the Court.

Where a detective, in the guise of a friend, induced a suspected party to make a confession of a crime, without inducement of any kind, except at his request, he said that he had consulted an attorney for the prisoner, who said “he [the prisoner] had better tell the facts of the case, and that they would be likely to do him as much good as anything he could do; that there was no use of lying about it, and he had better tell the truth:” held, (1) that the alleged confession was admissible in evidence; (2) that the credibility of a witness who, by deceit, misrepresentation, and other disreputable means, has obtained an alleged confession from a prisoner, is for a jury, who should be specially instructed on that point.¹

An instruction that “persons sometimes say that they are morally certain of the existence of a fact or facts, but have not the evidence to prove it; this is the condition of mind one is in when convinced beyond a reasonable doubt,”––is erroneous.²

Where the defendant in a criminal case has pleaded not guilty, the jury, in order to convict him of the offense charged, must find from the evidence that he is guilty; and the court has no authority to say to them that certain “allegations are uncontradicted, and therefore may be by the jury considered as proved.” The credibility of the witnesses must be submitted to the jury.

Instructions must be excepted to, in order to obtain a review of them in the supreme court.

If a person accused of crime testifies in his own behalf, he is to be treated as any other witness; and, if he fails to deny a material fact which has been testified against him, the district attorney may comment upon such omission in his argument to the jury.³

Error from Colfax county.

Indictment for obstructing a railroad track.

J. W. Brown, for plaintiff in error.

The Attorney General and Wm. Marshall, for the State.

MAXWELL, C. J.

The plaintiff was indicted by the grand jury of Colfax county for willfully. unlawfully, and feloniously placing railroad ties on the Union Pacific Railway track, to obstruct the same, and was found guilty, and sentenced to imprisonment in the penitentiary for 10 years. The errors assigned will be noticed in their order.

1. That the court erred in admitting the testimony of one Tuffield as to an alleged confession made by the plaintiff to him. His testimony is as follows: “I am a detective. I was with the defendant, Heldt, at Neligh's office, in Omaha. Heldt was under arrest. I was supposed to be under arrest too. I proposed to go and see an attorney. I let on I was going to see an attorney, and I went to see my brother. I returned to Neligh's office. From there they took me to jail. Heldt had gone to jail before me. We were put in the same cell together. I talked to Heldt in the jail. I told him that I had seen an attorney, and I would be very likely to be let out to–morrow. I would be out as soon as they got to Schuyler, and found out what I had been doing,––what my character was here; and that I would see an attorney as soon as I got back. Heldt asked me if I had seen an attorney. I said, “Yes,” and told Heldt what he had said in regard to him, and I told Heldt that the lawyer said he had better tell the facts of the case, and that would be likely to do him as much good as anything he could do; that there was no use lying about it, and he had better tell the truth. Heldt said he would, but he did not know how to get at it, or get it out to his lawyer. I said it would be easy enough done, and finally he asked me where he could get some paper. I said he could easily get it if he rattled the jailer, and he did call him, and the jailer came after a bit. Joseph Miller was the jailer. I went and got the paper. I said I would like to telephone to Judge Bennett. I wanted to telephone to other parties, but I found I could not; and when I got back I said I could not do it, as there was no connection, but I took the paper back for him to write on; and when he got the paper he said what did I think was the first thing for him to put in it; and I said I could not tell him; that I did not know anything about it; that I was innocent. He said: ‘Yes; I know you are innocent.’ I told him to tell the truth, and he said that as soon as he started to talk they would let me go. And he went on, and started it, and he wanted to know how to finish it; but I believe he knew then that I was not a very good scholar, and could not have done it if I had tried, so he just finished it himself. I believe he wrote Judge Bennett's name on the outside, and he wanted to know how he could send it; and I said rattle up the jailer again, and he did, and handed it to him. He wrote it up against the cell wall. [Here Exhibit D was shown to the witness.] Yes, sir; this is the paper; but there is something here that I do not think he put on himself. I saw it, but I could not tell what was on it,––whether it was Judge Bennett, or what it was. He handed it to Mr. Miller, the jailer. He gave me another one when he had written that. I asked him,––I said: ‘As you have made up your mind to confess this, and if your wife knows anything about it, you had better write and tell her what you are going to do, so as there would be no mistake; and he said he would write and tell her he was going away for a day or two, and that would be an excuse for him not coming home. Then he wrote this paper marked Exhibit C. He remained in jail until Monday morning. This was Saturday night, about 6 o'clock, I should judge, on the 22d. He stayed there until Monday; that would be the 24th. Then he was brought to Schuyler on the train.”

Exhibit D is as follows:

“OMAHA, November 22, 1884.

Regarding this wrecking affair, would say that I had no intention to hurt either human beings, or to damage any property, but took especial pains to have the train notified in time to prevent all accidents, my object being to get into the good graces of the railroad company, and thereby get a job, which I was in need of, as I could find nothing else to do, and I am willing to swear to the foregoing confession.

FRANK HELDT.”

Written below the confession is the following:

“Received this letter from Frank Heldt, in county jail, November 22, '84, 8 P. M.

J. S. MILLER.”

This letter seems to have been open, but was addressed to “Judge Bennett, Omaha, Neb.”

The rule is well settled that a promise of benefit or favor, or a threat or intimation of disfavor, connected with the subject of the charge, held out by a person having authority in the matter, will be sufficient to exclude a confession made in consequence of such inducement either of hope or fear. Reg. v. Morton, 2 Moody & R. 514; Rex v. Swatkins, 4 Car. & P. 548; Rex v. Mills, 6 Car. & P. 146; Rex v. Shepherd, 7 Car. & P. 579; Rex v. Enoch, 5 Car. & P. 539. But mere advice to tell the truth, where there is neither a threat nor an inducement, is not sufficient to render the confession inadmissible. To be admissible, however, it must appear that the confession was entirely voluntary. The necessity for this rule is very clearly stated in State v. Fields, Peck, 140, that “the evidence of such confessions is liable to a thousand abuses. They are made by persons, generally, under arrest, in great agitation and distress, when each ray of hope is eagerly caught at, and frequently under the delusion, though not expressed, that the merit of a disclosure will be productive of personal safety. To disclose the confession is odious, as a breach of confidence, which it is at all times. The confession is made in want of advisers, under circumstances of desertion by the world, in chains and degredation, with spirits sunk, fear predominant, hope fluttering around, purposes and views momentarily changing, a thousand plans alternating, a soul tormented with anguish, and difficulties gathering into a multitude. How easy it is for the hearer to take one word for another, or to take a word in a sense not intended by the speaker; and, for want of an exact representation of the tone of voice, emphasis, countenance, eye, manner, and action of the one who made the confession, how almost impossible it is to make a third person understand the exact state of his mind and meaning. For these reasons, such evidence is received with great distrust, and under apprehensions of the wrong it may do. Its admissibility is made to depend on its being free of the suspicion that it was obtained by any threats of severity or promises of favor, and of every influence, even the minutest.”

The plaintiff testified in his own behalf, and his testimony, if true, shows that Tuffield had been in his company at Schuyler for several days, and that they were on very intimate terms, and frequently visited some of the saloons in that place; that the plaintiff regarded him as a friend, and did not suspect that he was a spy upon his actions. A man who will deliberately ingratiate himself into the confidence of another, for the purpose of betraying that confidence,...