People v. Fox

• Citation: 150 N.E. 347,319 Ill. 606
• Decision Date: 05 February 1926
• Docket Number: No. 16979.,16979.
• Parties: PEOPLE v. FOX et al.
• Court: Supreme Court of Illinois

319 Ill. 606

150 N.E. 347

PEOPLE

v.FOX et al.

No. 16979.

Supreme Court of Illinois.

Dec. 16, 1925.

Rehearing Denied Feb. 5, 1926.

Error to Criminal Court, Cook County; William U. Gemmill, Judge.

Philip Fox and others were convicted of murder, and they bring error.

Affirmed.

Duncan, J., dissenting.Thomas D. Nash, of Chicago (Michael J. Ahern and Elwyn E. Long, both of Chicago, of counsel), for plaintiffs in error.

Oscar E. Carlstrom, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, and Merrill F. Wehmhoff, of Decatur (Edward E. Wilson, Clarence E. Nelson, W. A. Rittenhouse, and William McSwiggin, all of Chicago, of counsel), for the People.

THOMPSON, J.

About 1 o'clock a. m., June 9, 1921, Thomas A. Skirven was shot and killed in front of a Yellow Cab Company station located on the west side of Kedize avenue north of Twelfth street, in the city of Chicago. The shot that killed him, and other shots that struck the building and a taxicab standing in front of the building, were fired from a touring car proceeding north on Kedzie avenue. Plaintiffs in error Philip Fox and Morris Steuben, employees of the Checker Taxi Company, and three other persons, Charles Goldstein, Jimmie Mogley, and Max Podolsky, who were granted a separate trial, were indicted for the murder at the June term, 1921, of the criminal court. Plaintiffs in error were placed on trial at the April term, 1922, but there was no verdict because of the disagreement of the jury. At the June term, 1925, plaintiffs in error were tried a second time, and there was a verdict finding them guilty and fixing their punishment at imprisonment in the penitentiary for their natural lives. This writ of error is prosecuted to review the judgment entered on this verdict.

Each of plaintiffs in error confessed his participation in this murder. On the first trial their confessions were offered in evidence, but the trial judge held that they were incompetent because they were involuntary. Prior to the second trial each of plaintiffs in error filed a petition asking the court to suppress the confessions on the ground that the ruling on their admissibility in the first trial is res judicata, and on the further ground that the confessions were obtained in violation of the constitutional rights of the petitioners. The court denied the petitions, and its ruling is assigned as error.

[1] Whether a confession shall be received in evidence is a question for the court to decide when it arises on the trial. Until the confession is offered in evidence there is nothing for the court to consider. The ruling of the court on the admissibility of evidence is not final until there has been a final judgment entered in the case. The court may change its ruling on such questions at any time during the progress of the trial or on a second trial. To state the proposition that the ruling of the court on the admissibility of these confessions on the first trial is a final adjudication of the question, which precludes the court on a second trial from reconsidering it, is to answer it.

[2] Nor is there any merit in the second contention. Involuntary confessions are rejected, not because of the illegal or deceitful methods employed in securing them, but because of their unreliability. The object of every legal investigation being to ascertain the truth, the underlying principle on which confession evidence is, under certain circumstances, rejected is its testimonial worthlessness. If the court could know in a given case that a confession was true, it is clear that the evidence thereof should not be rejected. The wrong done, however reprehensible, in inducing the accused to make a confession could never, rightly considered, require a rejection of the confession, if the court could know as a fact that the confession was true. The difficulty, however, is in determining that the involuntary confession is trustworthy, so the courts have established the rule that involuntary confessions shall be excluded, for the reason that there is no test of their truthfulness. The modern rule limiting the admissibility of confessions had its first clear expression in 1783 in Warickshall's Case, 1 Leach's Cr. L. (4th Ed.) 263, where it is said:

‘It is a mistaken notion that the evidence of confessions and facts which have been obtained from prisoners by promises or threats is to be rejected from a regard to public faith. No such rule ever prevailed. * * * Confessions are received in evidence or rejected as inadmissiable under a consideration whether they are or are not entitled to credit. A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of the crime to which it refers. But a confession forced from the mind by the flattery of hope or by the torture of fear comes in so questionable a shape when it is to be considered as evidence of guilt that no credit ought to be given to it, and therefore it is rejected.’

In Regina v. Mansfield, 14 Cox's C. C. 639, it is said:

‘It is not because the law is afraid of having truth elicited that these confessions are excluded, but because the law is jealous of not having the truth.’

And in Regina v. Doyle, 12 Ont. 347:

‘The reason the confession in such a case is not admissible is that in law it cannot be depended upon as true; for one in such a case may say, and is likely to say, that which is not the truth if he thinks it to his advantage to do so.’

The rule is thus stated in Commonwealth v. Morey, 1 Gray (Mass.) 461:

‘The ground on which confessions made by a party accused, under promises of favor, or threats of injury, are excluded as incompetent, is, not because any wrong is done to the accused, in using them, but because he may be induced, by the pressure of hope or fear, to admit facts unfavorable to him, without regard to their truth, in order to obtain the promised relief, or avoid the threatened danger, and therefore admissions so obtained have no just and legitimate tendency to prove the facts admitted.’

In People v. McMahon, 15 N. Y. 384, the rule that involuntary confessions are exculded on the ground of their want of reliability is thus stated:

‘The principle upon which this rule is based is obvious. It is, that we cannot safely judge of the relation between the motives and the declarations of the accused, when to the natural agitation consequent upon being charged with crime is super-added the disturbance produced by hopes or fears artificially excited. It is because it is in its nature unreliable, and not on account of any impropriety in the manner of obtaining it, that the evidence is excluded. In this all the authorities agree. Mr. Phillips, speaking on this subject, says: ‘A confession so obtained cannot be received, on account of the uncertainty and doubt whether the prisoner might not have been induced, from motives of fear or interest to make an untrue statement.’'

In State v. Carrick, 16 Nev. 120, it is said that it is only when the wrongful acts exercise such an influence over the mind of the accused as to induce him to state things that are not true that the courts are authorized to exclude the confession. The law in its general application to this question, as well as others, is founded in reason and common sense. Its object is to ascertain the truth, and it is not its purpose to reject any reliable or competent means of obtaining it. Greenleaf says:

‘The object of all the care which is taken to exclude confessions which were not voluntary is to exclude testimony not probably true.’

Wigmore says:

‘The principle, then, upon which a confession may be excluded is, that it is, under certain conditions, testimonially untrustworthy.’

When the authorities are analyzed, there is practically no disagreement among them. See State v. Turner, 82 Kan. 787, 109 P. 654,135 Am. St. Rep. 129, 32 L. R. A. (N. S.) 772;Roesel v. State, 62 N. J. Law, 216, 41 A. 408;State v. Willis, 71 Conn. 293, 41 A. 820;People v. Wolcott, 51 Mich. 612, 17 N. W. 78;State v. Novak, 109 Iowa, 717, 79 N. W. 465. This principle of testimonial untrustworthiness being the foundation of exclusion, it follows that the exclusion is not rested upon the privilege against self-crimination. 2 Wigmore on Evidence (2d Ed.) § 823; note, Reasons for Exclusion of Confessions, 18 L. R. A. (N. S.) 772. The constitutional provision that ‘no person shall be compelled in any criminal case to give evidence against himself’ does not include statements or confessions by one suspected of or charged with a crime when the confession is not made in the course of a judicial proceeding. People v. Owen, 154 Mich. 571, 118 N. W. 590,21 L. R. A. (N. S.) 520. That a confession is not rejected because of any connection with the privilege against self-crimination is shown by the fact that the aim of the confession rule is to exclude self-criminating statements which are false, while the privilege rule excludes all statements coming within it, whether true or false.

On the trial there was no attempt to offer the confession of Fox. A consideration of the circumstances under which his confession was obtained is therefore wholly immaterial to any issue in this case. When the confession of Steuben was offered, there was a hearing before the court out of the presence of the jury. Steuben testified that he was taken to the state's attorney's office just before noon, June 9th, and for about 2 hours was interrogated by William Scott Stewart, an assistant state's attorney, and George F. Barrett and Ben Samuels, attorneys for the Yellow Cab Company; that he was not in any way mistreated during this time; that about 1:30 p. m. he was taken back to the detective bureau; that he was not questioned again until he was returned to the state's attorney's office, about 9 o'clock in the evening; that he was again interrogated by Barrett for about an hour, and was told repeatedly that the answers he was...