Patterson v. United States

• Decision Date: 21 July 1950
• Docket Number: No. 12895.,12895.
• Citation: 183 F.2d 687
• Parties: PATTERSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

183 F.2d 687 (1950)

PATTERSON v. UNITED STATES.

No. 12895.

United States Court of Appeals Fifth Circuit.

July 21, 1950.

COPYRIGHT MATERIAL OMITTED

John D. Cofer, Austin, Tex., for appellant.

Joel W. Westbrook, Asst. U. S. Atty., Henry W. Moursund, U. S. Atty., Wm. H. Russell, Jr., Asst. U. S. Atty. all of San Antonio, Tex., for appellee.

Before HOLMES, WALLER and BORAH, Circuit Judges.

BORAH, Circuit Judge.

Appellant was convicted on two counts of an indictment charging him with violation of Section 73, Title 18 U.S.C.A.¹ One of the counts charged that at a stated time and place he falsely made and forged the name of the payee upon a check drawn on the Treasurer of the United States for the purpose of obtaining and receiving from the United States the sum of sixty-five dollars. The other count charged that he uttered and published the check as true, then knowing the same to be forged, with the intent to defraud the United States. From the sentence entered upon the verdict the defendant (appellant) has appealed.

There are nine specifications of error. Of this number seven deal with claimed errors in the giving and refusing of charges. One claims error in overruling defendant's motion to suppress and exclude the written confession and one claims error in the exclusion of evidence.

We first examine the error relied upon which seems to us deserving of the most serious consideration: i. e., that the court erred in charging the jury that the burden of proof was upon the defendant to prove the confessions were not voluntary. The trial court charged the jury:

"The government, having offered the statements, must prove they were made; but the burden of proving that such statements or admissions were obtained by improper inducements or means in general, is upon the defendant.

"However, the defendant is not required to prove beyond a reasonable doubt that such statements or admissions were involuntarily made as that term is herein defined; but if from the whole evidence you have a reasonable doubt as to whether such statements or either of them were voluntarily made you must give him the benefit of the doubt and find the statement as to which you have such reasonable doubt to have been involuntarily made and disregard it."

To this charge the defendant made the following objection: "I object to the charge because it requires the defendant to assume the burden of proof that the confession was not voluntary."

The appellant here contends, and rightly so, that where, as in this case, there is a conflict in the evidence as to whether the confessions are or are not voluntary the burden of proof is upon the prosecution to prove to the court that the confessions were voluntarily made before they become admissible in evidence.

The general principles governing the admissibility of confessions are well established. The true test of admissibility in evidence is whether the confession was made freely, voluntarily and without compulsion or inducements of any sort. Wilson v. U. S., 162 U.S. 613, 623, 16 S.Ct. 895, 40 L.Ed. 1090. This is a question relating to the admissibility of evidence and is not a question of fact for the jury, but on the contrary is the duty of the court alone to hear and decide upon the evidence offered. Hopt v. Utah, 110 U.S. 574, 583, 4 S.Ct. 202, 28 L.Ed. 262; McCool v. U. S., 6 Cir., 263 F. 55; Wagner v. U. S., 5 Cir., 110 F.2d 595, 596. And where the evidence is conflicting, as here, it is for the jury. Hopt v. Utah, supra; Wilson v. U. S., 162 U.S. 613, at page 624, 16 S.Ct. 895, 40 L.Ed. 1090; Litkofsky v. U. S., 2 Cir., 9 F.2d 877. However, this does not mean that a jury shall pass on the admissibility of evidence, but merely that the jury may reject the evidence if it disagrees with the court's original determination that it was voluntarily made. Perrygo v. U. S., 55 App.D.C. 80, 2 F.2d 181, 184; U. S. v. Lustig, 2 Cir., 163 F.2d 85, 89. And the burden is on the prosecution to establish that the confession was not obtained by improper means. Bram v. U. S., 168 U.S. 532, 555, 18 S.Ct. 183, 42 L.Ed. 568; Harrold v. Territory of Oklahoma, 8 Cir., 169 F. 47, 53-54, 17 Ann.Cas. 868; Litkofsky v. U. S., 2 Cir., 9 F.2d 877, 880; U. S. v. Walker, 2 Cir., 176 F.2d 564, 567; Cf Lambert v. U. S., 5 Cir., 101 F.2d 960, 964.

Where, as here, the issue was raised as to whether the confessions were or were not voluntary the Court should have instructed the jury that the burden of proof was upon the government to prove that the confessions were voluntarily made. Instead the Court charged that the Government must prove that the confessions were made, but the burden of proving that such statements or admissions were obtained by improper inducements or means in general, was upon the defendant. This charge was clearly erroneous as was the qualifying language which immediately followed, reading: "However, the defendant is not required to prove beyond a reasonable doubt that such statements or admissions were involuntarily made as that term is herein defined."

It is true that in the next charge the jury was told to give the defendant the benefit of the doubt if from the whole evidence they entertained a reasonable doubt as to whether such statements or either of them were voluntarily made. But this latter instruction was in conflict with and wholly inconsistent with the previous charge that the burden of proof was upon the defendant to establish that the confessions were involuntary. Under the circumstances no portion of the charge can be said to be harmless if it did not state correctly and fully the law applicable to the crime, even though it may be said that in other portions of the charge the correct rule was stated. Mills v. U. S., 164 U.S. 644, 646, 17 S.Ct. 210, 41 L.Ed. 584. When a jury is given two instructions, "one erroneous and prejudicial and the other correct, it is impossible to tell which one the jury followed and it constitutes reversible error." Nicola v. U. S., 3 Cir., 72 F.2d 780, 787. Because of the above errors in the court's instructions which affected the substantial right of appellant, the judgment must be reversed.

Our conclusion that it was error for the Court to charge as it did in respect to the burden of proof has made it unnecessary for us to determine whether appellant's other points present reversible error and we are relieved from examining the other assignments of error, except in so far as they present questions which are likely to arise on...