People v. Dudgeon, 167.

• Decision Date: 10 December 1924
• Docket Number: No. 167.,167.
• Citation: 229 Mich. 26,201 N.W. 355
• Parties: PEOPLE v. DUDGEON.
• Court: Michigan Supreme Court

229 Mich. 26

201 N.W. 355

PEOPLE

v.DUDGEON.

No. 167.

Supreme Court of Michigan.

Dec. 10, 1924.

Error to Circuit Court, Newaygo County; Joseph Barton, Judge.

Alice Dudgeon was convicted of murder in the first degree, and she brings error. Reversed, and new trial granted.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. F. E. Wetmore, of Hart, and Fred R. Everett, of Big Rapids, for appellant.

Wm. J. Branstrom, Sp. Pros. Atty., of Fremont, for the People.

FELLOWS, J.

Defendant was convicted of murder in the first degree. The testimony taken on the trial is not set out in detail, but the bill of exceptions shows that confessions made by defendant were received in evidence; that several witnesses testified that such confessions were voluntarily made, and that no inducements were offered or threats made or violence used to procure them; that defendant and others testified that the confessions were forced by members of the state police; and that they were the result of force, threats, and violence. The errors assigned, which are necessary to decision, are upon the instruction of the court on the laws of confessions.

The learned prosecuting attorney invokes the well-recognized rule that the charge must be considered in its entirety in determining whether an error necessitating a reversal has been committed. That rule is well established but it does not go to the extent claimed for it. If the charge on the question of confessions was erroneous, it is not cured by a correct instruction as to reasonable doubt, or a correct definition of murder in the first degree. Outside the question of confessions the charge is an admirable one and beyond assault. We should, of course, consider all that was said in the charge on the question of confessions, and that it may be before us, we quote that portion of the charge in full, putting in brackets the two portions on which error is assigned:

‘Now, I will instruct you upon the subject of confessions. Certain confessions of Alice Dudgeon have been offered and received in evidence in this case, which she claims were obtained by torture, fear, and improper means; and, in this connection, I charge you that if you find the confession obtained by the state police, or other officers, from her, were forced from her by flattery or hope, or by the torture of fear, and were not her voluntary act, and are untrue, you will reject it, and give such confession no consideration whatever.

‘It appears that, after an alleged confession to the state police or other officers, Alice Dudgeon was taken before a notary public, who reduced such confession to writing, and stated to him the same or similar matters that she had stated to the police, and in that connection I charge you that if you find the confession alleged to have been made to the state police or other officers was obtained under circumstances rendering it involuntary and inadmissible, a presumption exists that any subsequent confession arose from a continuance of the prior influence, and this presumption must be overcome before the subsequent confession can be received in evidence. The controlling influence which produced the prior confession is presumed to continue until its cessation is affirmatively shown, and evidence to overcome or to rebut this presumption must be very clear, strong, and satisfactory; if there is any doubt on this point, the confession must be excluded.

[(1) ‘I further charge you on the subject of confessions and the conduct of the officers in obtaining them, that the fact that a confession was procured by the employment of falsehood by a police officer, detective, or other person, does not alone exclude it, nor does the employment of any article, deception, or fraud exclude it if the artifice or fraud employed was not calculated to procure an untrue statement.]

[(2) ‘It is not for you to exclude this confession because of the fact you find in the procuring thereof that an office did an unlawful act. The query for you is but one query, and I instruct you to confine your query to that: Was the confession a true statement? No matter how obtained, if it is a true statement, you will consider it. If it is untrue, you will disregard it.’]

[1] 1. It cannot be said that this instruction was an erroneous statement of the law. People v. Dunnigan, 163 Mich. 349, 128 N. W. 180,31 L. R. A. (N. S.) 940;People v. Lipsczinska, 212 Mich. 484, 180 N. W. 617. Whether it was applicable to the facts developed on the trial is not sufficiently disclosed by the record. Error cannot be presumed but must affirmatively appear. Reversal cannot be predicated on this assignment of error.

2. This instruction was clearly erroneous. We have pointed out that the question of whether the confessions were voluntarily made was one of disputed fact. Before the jury had a right to consider them at all they must first settle the question of whether they were voluntary. By this instruction the jury was told that the sole test was whether they were true, ‘no matter how obtained.’ This is not in accordance with the former holdings of this court. The uniform rule in this court is that confessions which are not voluntary may not be received, and may not be considered by the jury. In People v. Prestidge, 182 Mich. 80, 148 N. W. 347, this court clearly pointed out the practice where the testimony is undisputed, and where it is disputed. It was there said:

‘If the preliminary testimony made it clear either that the statement claimed to have been made was voluntary or involuntary, it was the duty of the trial court to admit or reject it. If the testimony left the question in doubt, it was the duty of the court to admit it, and leave the question to the jury under proper instructions to determine whether it was voluntarily made.’

In People v. Wolcott, 51 Mich. 612, 17 N. W. 78, it was said by Justice Cooley, speaking for the court:

‘If the statement of the respondent...