Johnson v. State

• Decision Date: 25 May 1914
• Docket Number: 17343
• Citation: 65 So. 218,107 Miss. 196
• Court: Mississippi Supreme Court
• Parties: S. L. JOHNSON v. STATE

65 So. 218

107 Miss. 196

S. L. JOHNSON v. STATE

No. 17343

Supreme Court of Mississippi

May 25, 1914

APPEAL from the circuit court of Claiborne county. HON. H. C MOUNGER, Judge.

S. L Johnson was convicted of murder and appeals. The facts are fully stated in the opinion of the court.

Case reversed and remanded.

C. A French, for appellant.

What purported to be a confession made by Johnson to Fitzgerald should not have been admitted in evidence against the defendant, for two reasons, first, the confession was not shown to be absolutely free and voluntary, such as the law requires, and, second, for the reason that the corpus delicti was not clearly shown.

As to the first reason, I wish to say that there is no statute in this state regulating the admission of confessions, against one charged with crime, and therefore the admission of confessions depends entirely upon judicial annunciation of what the law is, as to what constitutes a confession, and when it is admissible.

A confession that may be used against a person who is charged with crime, and is on trial, as defined by McKelvey on Evidence at page 111, sec. 75, is as follows, confessions are admissions of guilt made by persons accused of crime. Confessions to be admissible in evidence must be voluntary if made as the result of threats or inducement they are inadmissible. McKelvey on Evidence, page 114, sec. 76. The important element in determining the admissibility of a confession, is that it should be voluntary. If it is voluntary within the definition of that term as laid down by the courts, it satisfies the only condition required.

The important quality of a confession is that it be spontaneous. The question then arises, did Johnson make a confession of guilt to Fitzgerald? If he did not, then the confession as detailed by the witnesses was clearly inadmissible. Fitzgerald told Johnson that he was a spiritualist, and that he could look down into his black heart and see the diabolic crime that he had committed, and that he, Johnson, was a liar. This was all done at the time when Johnson was sick, had fever, and was under the influence of medicines which had been administered by Dr. Hicks, and when Johnson was certainly in no fit condition to talk business of any kind, much less to make evidence that would be used against him, and might cost him his life, and as Fitzgerald said, that Johnson had spent a sleepless night, and was in a nervous condition, and was in jail and being hounded by all of the newspaper reporters in Vicksburg. Fitzgerald told Johnson, while in this condition, that he had better confess the crime and relieve his soul of the crime. Fitzgerald was then holding himself out as a spiritualist, and posing as Johnson's spiritual adviser. This was nothing less than a promise of reward that rendered the confession, if made, inadmissible.

This confession is testified to by Fitzgerald, was not that sort of a spontaneous, free and voluntary confession that the law recognizes as admissible in evidence against one charged with crime. This was not the sort of a confession that comes from a clear and unclouded mind, that the law regards as sufficient to be used in evidence against the party making it. See note to sec. 80, page 118, McKelvey on Evidence.

The learned judge, who tried this case, should not have excluded the evidence of Dr. Acker, page 138-129, that evidence tended to show that a man sick with fever and taking quinine and other drugs usually administered by a doctor in malarial fevers, was not in a mental condition to make a clear statement of the fact that could be used in evidence against him as a confession. This evidence should have gone to the jury, or at least a part of it. This ruling of the court excluded from the consideration of the jury all evidence as to the mental condition of Johnson at the time he was supposed to have made the confession, and with the confession before the jury and no evidence whatever to rebut it, was very prejudicial to the defendant.

I respectfully submit that this was error in the learned trial judge. In McKelvey on Evidence, sec. 84, page 120, and in the note to that section it is held, that: "The question as to the mental condition of the accused at the time of making the confession is held to be for the jury to determine upon such evidence as both sides may submit."

The court in excluding the evidence of Dr. Acker from the consideration of the jury, left the jury nothing on which to base a finding against the condition of Johnson's mind that would render the confession either admissible or inadmissible.

I respectfully admit, that this was error in the trial court. The courts have shown the greatest liberality in the exclusion of declarations offered as confessions, particularly when made while in custody, or when under personal restraint, or where they have been obtained by questions assuming guilt, solicitations, promises or other inducements, threats or fraud; and the question of admissibility of such declarations has, in many instances, turned upon the question whether they were made to one having official authority over the accused, or one sustaining toward him some confidential relation, such as his spiritual adviser, or one having control over or power to punish him. Encyclopedia of Evidence, Vol. 3, page 302, and authorities there cited.

The above authorities cover this case exactly, and show that the confession in this case was not such an one as should have been admitted. The confession, as detailed by Fitzgerald, that shows that it was not a free, voluntary and spontaneous confession of guilt, uninfluenced, by hope of reward, or fear of punishment as the law recognizes as admissible in evidence against the defendant, nor did it come from the defendant at a time when his mind was perfectly clear, and unclouded, but was made according to Fitzgerald's testimony, early in the morning while the defendant had fever, and had spent a sleepness night, and was in no condition to transact any sort of business, much less to make evidence against himself, which, if admitted by the court, might cost him his life. State v. Smith, 72 Miss. 42, 18 So. 482.

I respectfully call the court's attention to this case, for it strikes me that it is right in point, and especially so as the trial court excluded the confession, and the state appealed, and this court upheld the learned trial judge. The case of United States v. Nutt, 1 McLain, 499, 27 F. Case, No. 15900, and cited in note on page 303 Encyclopedia of Evidence, is also squarely in point, as are other material cases there cited.

The rule as laid down by the supreme court of this state seems to be the same as that stated in the text on page 303, Encyclopedia of Evidence, supra, and this court from the earliest decisions, seems to have required the strictest adherence to that rule, as is shown by the following cases: William v. State, 16 So. 296; Harvey v. State, 20 So. 837; Ford v. State, 21 So. 524; Mitchell v. State, 24 So. 312; Hamilton v. State, 27 So. 606; Blalock v. State, 31 So. 105; People v. Barrie, 49 Cal. 324; Spears v. State, 2 Ohio St. 583.

From the rule as laid down in the foregoing cases which are respectfully cited, it appears that the confession as testified to by the state witnesses in this case against Johnson, was not that sort of a free, voluntary and spontaneous confession, uninfluenced by any outside influence as the law recognizes as a competent confession to be used against the party making it. I wish to call the court's attention to the following case, which, I think, is directly in point. State v. Stallings, 38 So. 261, 142 Ala. 112, I quote from the opinion of the court in that case, all confessions are prima facie not admissible as evidence, citing 1 Mayfield's Dig., page 206.

Again I desire to call the court's attention especially to the case of Ammons v. State, 32 So. 9, 80 Miss. 592, this case and the procedure of the Chief of Police Price, of Vicksburg, and his method of extorting a perfectly free and voluntary confession from the defendant, by the use of the sweat box, bears a very close affinity to the procedure of Mr. Fitzgerald, in his procedure in trying to extort the truth out of Johnson, by telling him, Johnson, that he, Fitzgerald, was a spiritualist, and that it would be better for him, Johnson, to tell the truth, and in Fitzgerald's opinion the truth meant that Johnson should confess the crime that Fitzgerald claimed had been committed, and which he, Fitzgerald, claimed to be able to look down into Johnson's black heart and see. Oh, man's inhumanity to man! McAlister v. State, 34 So. 156, 82 Miss. 459; Peck v. State (Ala.), 41 So. 759; State v. Turner (La.), 47 So. 680; Banks v. State (Miss.), 47 So. 437; Dunham v. State, 47 So. 545.

I respectfully submit that the confession as testified to by Fitzgerald was not so much a free, voluntary and spontaneous confession as the law requires, and was therefore not admissible, and the confession testified to by the other witnesses, is controlled by the same law of evidence, for Johnson was prompted by whatever promise, or coercion as Fitzgerald had used to extort the confession, and therefore, no part of the confession should have been admitted.

Ross Collins, attorney-general, and J. M. Vardaman, associate counsel, for the state.

The error discussed by counsel in his brief is the admission, by the court, of the confession of appellant made to E. M Fitzgerald and others the day after he was bound over to the grand jury by the justice of the peace. Counsel very earnestly contends that the confession of appellant was inadmissible, for the reason that appellant was unduly influenced by Fitzgerald and that his confession was induced by fear, improper influence,...