Pullen v. State

• Citation: 175 Miss. 810,168 So. 69
• Decision Date: 11 May 1936
• Docket Number: 32065
• Court: United States State Supreme Court of Mississippi
• Parties: PULLEN v. STATE

168 So. 69

175 Miss. 810

PULLEN v. STATE

No. 32065

Supreme Court of Mississippi

May 11, 1936

(In Banc.)

1. CRIMINAL LAW.

Confession of murder obtained after questioning defendant while he was being removed from one jail to another on which trip officer stated to defendant that he was being removed because "in these cases, we don't know the cause of the trouble" held not inadmissible as having been obtained under duress and fear of mobbing, where witnesses stated that confession was free and voluntary, that no duress was exercised, and that no clemency was promised to the defendant.

2. CRIMINAL LAW.

Record must show modification of instructions of which complaint is made and in absence of such showing, reviewing court must assume that instructions set out in record were read to jury especially where appellant did not state that instructions were not so read.

3 HOMICIDE.

Motive is not an indispensable element of murder.

4 HOMICIDE.

In murder prosecution, instruction that insanity could not be a defense if defendant knew difference between right and wrong at time of alleged crime held not incomplete for failure to state that at time he committed act, defendant was able to realize and appreciate nature and quality thereof.

5 HOMICIDE.

In murder prosecution, evidence held insufficient to create reasonable doubt of defendant's sanity at time of homicide, and hence defendant could not complain that instruction on insanity was incomplete.

6. CRIMINAL LAW.

Defendant in murder prosecution was presumed to be sane.

HON JOHN F. ALLEN, Judge.

APPEAL from circuit court of Montgomery county HON. JOHN F. ALLEN, Judge.

Wilson Pullen was convicted of murder, and he appeals. Affirmed.

Affirmed.

J. W. Conger and Mary Sue Brannon, both of Winona, for appellant.

A confession, if made, has got to be made freely and voluntarily, without restraint, without coercion, in order to make it admissible in evidence.

Confessions induced by fear, though not aroused by spoken threats, are nevertheless "involuntary" because the fear which takes away the freedom of the mind may arise solely from conditions and circumstances surrounding the confessor.

Fisher v. State, 145 Miss. 116, 110 So. 361; Johnson v. State, 107 Miss. 196, 65 So. 218; Jones v. State, 133 Miss. 684, 98 So. 150; Banks v. State, 93 Miss. 700, 47 So. 437.

It is a general rule that a confession should not be admitted if there is any reasonable doubt as to whether it was freely and voluntarily made, and after its admission, if the testimony as a whole creates such a doubt, then it should be excluded.

Johnson v. State, 107 Miss. 196, 65 So. 218.

A confession must be free from the influence of any extraneous disturbing cause.

Simon v. State, 37 Miss. 288; Underhill on Criminal Evidence (2 Ed.), sec. 126; MeMahon's case, 15 N.Y. 384; Ellis v. State, 65 Miss. 44, 3 So. 188; Williama v. State, 72 Miss. 117, 16 So. 296; State v. Smith, 72 Miss. 420, 18 So. 482; Simmons v. State, 61 Miss. 243; Bishop's New Criminal Procedure, sections 1237-38; Ammons v. State, 80 Miss. 592, 32 So. 9, 18 L. R. A. (N. S.) 768.

It was the business of the court (not the jury) to pass on the question of this confession, and if this court here believes there is a reasonable doubt about the admissibility of the confession, then it is the duty of this court to deny its admissibility, regardless of the consequences.

The evidence must exclude every reasonable doubt that the confession was freely and voluntarily made.

Whip v. State, 143 Miss. 757, 109 So. 697; Ellis v. State, 65 Miss. 44, 3 So. 188; Williams v. State, 72 Miss. 117, 16 So. 296; State v. Smith, 72 Miss. 420, 18 So. 482; Johnson v. State, 107 Miss. 196, 65 So. 218; Ammons v. State, 80 Miss. 592, 32 So. 9, 18 L. R. A. (N. S.) 768; Whitley v. State, 78 Miss. 255, 28 So. 852; Fisher v. State, 145 Miss. 116, 110 So. 361; Hampton case, 88 Miss. 257, 40 So. 445.

There was an obstinate denial of any connection with the crime on the part of defendant always although the persistent demands of the officers continued--and he still was denying--until the marshal of Winona and his co-officer got the defendant just under the valley hill in the darkness of the night in the delta in a strange place, on the road from Winona to Greenwood, and he was told the reason he was being scurried out of Montgomery County, and then it was, as stated by the officer, "some of his statements were voluntary on his part."

If a confession is of doubtful admissibility, it should be rejected.

State v. Smith, 72 Miss. 420, 18 So. 482.

Evidence that is obtained in the way of coercion is not admissible.

McMaster case, 82 Miss. 459, 34 So. 156; Peter v. State, 4 S. & M. 31; Van Buren v. State, 24 Miss. 516; Simon v. State, 37 Miss. 288; Williams v. State, 72 Miss. 117, 16 So. 296; Whitley v. State, 78 Miss. 255; Ammons v. State, 80 Miss. 592; Ellis v. State, 65 Miss. 44, 3 So. 188, 7 Am. State Rep. 634; Reason v. State, 94 Miss. 290, 48 So. 820.

The burden was upon the state to prove by positive evidence that the homicide was committed by the defendant and that he committed it in a lucid interval. This is so, for, the reason that it is shown by the evidence that the defendant had been for a long time prior to that date suffering with some form of habitual insanity. It is certainly true beyond all argument that the evidence raised a reasonable doubt that the defendant was sane at the time of the homicide.

Ford v. State, 19 So. 665; Ford v. State, 83 So. 291; Cunningham v. State, 56 Miss. 269; Hoye v. State, 162 So. 644; Smith v. State, 95 Miss. 786, 49 So. 945, 27 L. R. A. (N. S.)

The defendant did not have a fair trial.

If there arises from the evidence from any quarter a reasonable doubt as to the sanity of the accused, the presumption of law as to his sanity is overcome.

Thomson v. State, 83 So. 291, 78 Fla. 400; Cunningham v. State, 56 Miss. 276; Pollard v. State, 53 Miss. 410; State v. Flye, 26 Me. 312; Commonwealth v. Kimball, 24 Pick. 373; Commonwealth v. Dana, 2 Met. 340; Ogletree v. State, 28 Ala. 693; Ford v. State, 19 So. 665.

When a prima facie case is made out, the burden of proof is not thereby shifted on the defendant. He is not bound to restore himself to the presumption of innocence which invested him in the commencement of the action. That does not take away from the defendant the presumption of innocence; but the presumption remains in aid of any other proof which the defendant may offer to rebut the prima facie case made out by the state. It has been frequently judicially declared that establishing a prima facie case made out by the state in a criminal prosecution does not change the burden of proof.

State v. Flye, 26 Me. 312; Commonwealth v. Kimball, 24 Pick. 373; Commonwealth v. Dana, 2 Met. 340; Ogle tree v. State, 28 Ala. 693.

In a prosecution for murder defendant is entitled to an acquittal if the evidence shows a reasonable doubt as to his sanity at the time of the homicide.

Ford v. State. 19 So. 665.

There can be no crime without mental accountability and it is just as essential to show the conscious mind as the unlawful act. But it is said that the law presumes sanity, so the law presumes malice from the fact of the killing; but if anything in the testimony, either of the state or the accused, suggests a reasonable doubt of existence, nobody ever supposed that the state could stop short of removing this doubt, and of establishing the malice to a moral certainty.

Cunningham v. State, 56 Miss. 269; Pollard v. State, 53 Miss. 410, 24 Am. Rep. 703; People v. McCann. 16 N.Y. 58, 69 Am. Dec. 642; People v. Bartlett, 411 N.H. 224, 80 Am. Dec. 154; State v. Crawford, 43 Kan. 32; Hopp v. State, 31 Ill. 385, 83 Am. Dec. 154; Polk v. State, 19 Ind. 170, 81 Am. Dec. 382; Ogletree v. State, 28 Ala. (N. S.) 701; Cochran v. State, 61 So. 187, 65 Fla. 81; Mizell v. State, 63 So. 1000, 184 Ala. 16; Parsons v. State, 2 So. 854, 81 Ala. 577; State v. Felter, 25 Iowa 68; Bradley v. State, 31 Ind. 492; Harris v. State, 18 Tex.App. 287, 6 Am. Crim. Rep. 357; State v. Jones, 50 N.H. 369, 9 Am. Rep. 242; Keil v. Commonwealth, 5 Bush. 362; Smith v. Com., I Duv. 224; Dejarnette v. Com., 75 Va. 867; Coyle v. Com., 100 Pa. 573; Cunningham v. State, 56 Miss. 268; State v. Johnson, 40 Conn. 136; Anderson v. State, 43 Conn. 514; State v. Mewherter, 46 Iowa 88.

Where insanity is of a continuous nature or characterized by an habitual disorderly mind, and it existed at or before the commission of the crime, it will be presumed to continue up to such act.

Cochran v. State, 61 So. 187, 65 Fla. 81.

One cannot be held guilty of homicide where he is so afflicted with a mental disease that he has so far lost the power to choose between right and wrong that he cannot resist the killing though he may know right from wrong.

Mizell v. State, 63 So. 1000, 184 Ala. 16; Parsons v. State, 2 So. 854, 81 Ala. 577; Bucknill on Criminal Lunacy, 59; Hadfield case, 27 How. State Tr. 1282, 2 Lawson Crim. Def. 201-215; U. S. v. Lawrence, 4 Cranch, C. C. 518; Rex v. Oxford, 9 Car. & P. 225; State v. Felter, 25 Iowa 68; Kriel v. Com., 5 Bush. 362; Smith v. Com. 1 Duv. 224; Dejarnette v. Com., 75 Va. 867; Coyle v. Com., 100 Pa. 573; Cunningham v. State, 56 Miss. 269; Com v. Rogers, 7 Metc. 500; State v. Johnson, 40 Conn. 136; Anderson v. State, 43 Conn. 514; State v. Mewherter, 46 Iowa 88.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

It is argued that this appellant was under fear of mob violence and that this prompted him to do his talking. There is no evidence to this effect. The argument is based upon a line or two which appear in the record, but it seems to the writer that the real meaning of this testimony would have...