Jones v. State

• Decision Date: 30 October 1914
• Docket Number: No. 18638.,18638.
• Citation: 97 Neb. 151,149 N.W. 327
• Parties: JONES v. STATE.
• Court: Nebraska Supreme Court

97 Neb. 151

149 N.W. 327

JONES

v.STATE.

No. 18638.

Supreme Court of Nebraska.

Oct. 30, 1914.

Syllabus by the Court.

In a criminal trial a confession of guilt alleged to have been made by the defendant is not competent in evidence, unless first shown to have been voluntarily made.

An involuntary statement or confession is not competent against the defendant for any purpose.

Evidence that defendant has admitted guilt or important facts should not be received for impeachment or rebuttal, but should, if material and competent, be offered in chief.

A defendant cannot be cross–examined, and afterwards contradicted in respect to matters that are not admissible as part of the case.

If the defendant has signed an involuntary written confession, it is erroneous to allow him to be cross–examined, for the purpose of impeachment as to the contents of that confession.

Taylor v. State, 37 Neb. 788, 56 N. W. 623, disapproved.

Additional Syllabus by Editorial Staff.

“Murder in the first degree” is the killing of a human being with deliberation, premeditation, and malice.

Error to District Court, Douglas County; English, Judge.

John Jones, alias William Stanser, was convicted of murder in the first degree and brings error. Reversed and remanded.

Barnes and Fawcett, JJ., dissenting.John A. McKenzie, Carroll H. Wright, and Wm. N. Johnson, all of Omaha, for plaintiff in error.

Grant G. Martin, Atty. Gen., and Frank E. Edgerton, Asst. Atty. Gen., for the State.

SEDGWICK, J.

The defendant, who is the plaintiff in error here, was found guilty of murder in the first degree in the district court for Douglas county, and his sentence was death. The case appears to have been carefully tried, but there are two serious questions presented by the record.

[1] 1. The evidence shows that when the defendant was arrested for the crime he was taken to the county jail and there in the presence of three officers he signed a written confession or statement. After the defendant had testified in his own behalf he was questioned by the attorney for the state in regard to statements he was supposed to have made at that time to these officers, which statements were supposed to be inconsistent with his testimony in his own behalf, and, having denied that he made such statements, the officers were examined in rebuttal, and testified to certain admissions or statements made to them by the defendant. There was no proof that the alleged statements were voluntary on the part of the defendant. Counsel for the defendant insist that this amounted to proof of an alleged confession by the defendant while he was in custody on the charge of murder in the first degree, and that to receive such evidence was erroneous and prejudicial. It is contended by the state that the evidence tended only to prove an admission of a material fact inconsistent with the evidence of the defendant, and that, the proper foundation for impeaching testimony having been laid, the evidence of the officers was competent. The evidence that had been offered by the state in chief tended to prove that the defendant shot and killed the deceased in the pool hall, which was kept by the deceased, that the defendant had been playing a game of pool with certain parties, and that after the game a dispute arose between the defendant and the deceased in regard to paying for the game, and after a few words had passed between them the deceased left the hall and in a few minutes thereafter returned and, standing in the door by which he entered, asked the deceased to return the money which he had paid, and, being refused, he immediately shot and killed the deceased. The defendant admitted that he shot and killed the deceased, but insisted that it was during a quarrel and was in self–defense. After the defendant had testified to circumstances tending to support the defense, the following appears in the record:

“Q. Now, Mr. Jones, do you remember after you were arrested and brought back to the city of Omaha and taken to the city jail that you had a conversation in the presence of Stephen Maloney, W. T. Devereese, and Thomas Ring, with reference to this shooting? A. Conversation, no, I didn't have a conversation. Q. You had a talk with them? A. No, sir. Q. You had no talk with them at all? A. No, sir. Q. Do you remember signing anything at that time? A. Yes, sir. Q. In the presence of Steve Maloney, Thomas Ring, and W. T. Devereese? A. Yes, sir. Q. And was that statement in your handwriting? A. No, sir. Q. It was read over to you, was it not? A. Yes, sir. Q. Do you remember stating to the officers at that time––

Mr. McKenzie (defendant's attorney): I object to that as immaterial, irrelevant, and incompetent, and not the proper way to examine a witness in reference to the contents of a statement he has signed.

The Court: The form of your question is not proper. If you are laying foundation for impeachment, you ought to ask him if he did not make a certain statement. (To which ruling the state excepts.) Q. Did you not at that time make this statement, with reference to the manner in which the shooting occurred at the pool hall at 1004 Capitol avenue on the night of the 18th of October, 1913, did you not make this statement with reference to that: ‘I stepped outside the door and asked again for my money, and he would not give it to me, and I went down to my room, 922 Capitol avenue and got my pistol from Mrs. Callia and came back to Sam's pool hall; then I asked him for my hat and money, and he gave me my hat but kept the money and told me to go out as quick as I could.’ Did you make that statement?

Mr. McKenzie: I object to that as immaterial and irrelevant and incompetent, and not the proper way to examine a witness with reference to a statement which he is presumed to have made. (Objection overruled. The defendant excepts.) Q. Did you make that statement on December 11, 1913?

The Court: I do not understand you are calling for the contents of a written instrument now, are you?

Mr. Piatti (prosecuting attorney): Yes, he made that statement, and it was placed in writing and he signed it afterwards.

The Court: I do not think that is right.

Mr. Piatti: I am asking first if he made the statement to the officer.

The Court: That is a different thing. A. No, sir.

The Court: With the understanding you are not calling for the contents of a written document, but simply for a part of a conversation that occurred, I will permit the witness to answer.

Mr. McKenzie: I understand counsel is reading from a statement.

Mr. Piatti: That is simply to refresh my memory with reference to the statement.

The Court: He can formulate the question to suit himself. (The defendant excepts.) Q. Did you make that statement in the presence of these officers on that date? A. No, sir. Q. In the city jail, city of Omaha? A. No, sir.

The Court: Let us see what the state of the record is. (Record read by reporter.)

The Court: If you are going to follow this up by way of impeachment they would be entitled to that statement on the examination of the officers.”

[7] The most important question of the case was as to the grade of the guilt. If the crime was done with deliberation and premeditation as well as malice, it would be murder in the first degree and would justify the extreme penalty of death by electrocution. If it was done in the excitement of a quarrel and without premeditation and deliberation the penalty of death could not be imposed. If after the dispute between the defendant and deceased the defendant left the hall to procure a revolver and, after having procured it, returned and without further controversy killed the deceased, the fact of deliberation and premeditation would be established. The question, therefore, propounded to the defendant was in regard to an alleged admission that the crime was murder in the first degree. These officers, while the defendant was in their custody and in the jail, had caused this admission to be reduced to writing and had induced the defendant to sign the same. This writing, it is conceded by all, was a confession of guilt, and, holding this confession in his hand to refresh his memory as he stated, the prosecuting attorney repeated to the defendant a part of the substance thereof and asked him if he made such statement in the presence of these officers. There was no evidence that this was a voluntary confession. Indeed, it would be difficult to establish it as such under the circumstances. If it was intended to use the statement or confession as evidence against the defendant, it should have been offered as evidence in chief, and a confession cannot be used as evidence unless it is first shown that it was voluntarily made. If the confession was competent the writing itself would be the best and only admissible evidence.

“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.” State v. Novak, 109 Iowa, 717, 729, 79 N. W. 465, 469.

Mr. Wigmore says:

“The ground of distrust of confessions made in certain situations is, in a rough and indefinite way, experience. There has been no careful collection of statistics of untrue confessions, nor has any great number of instances been even loosely reported; but enough have been verified to fortify the conclusion, based on ordinary observation of human conduct, that under certain stresses a person may falsely acknowledge guilt. This possibility arises wherever the innocent person is placed in such a situation that the untrue acknowledgment of guilt is at the time the more promising of two alternatives between which he is obliged to choose; that is, he chooses any risk that may be in falsely acknowledging guilt, in...