Sanders v. State, 41295

• Decision Date: 26 October 1959
• Docket Number: No. 41295,41295
• Citation: 115 So.2d 145,237 Miss. 772
• Parties: Willie SANDERS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 145

115 So.2d 145

237 Miss. 772

Willie SANDERS v. STATE of Mississippi.

No. 41295.

Supreme Court of Mississippi.

Oct. 26, 1959.

Prewitt & Bullard, Vicksburg, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., for appellee.

ETHRIDGE, Justice.

Appellant, Willie Sanders, was convicted in the Circuit Court of Warren County of manslaughter, for the killing of Jimmie Lee Carter, and was sentenced to serve ten years in the penitentiary. There were several witnesses for the State who saw Sanders shoot him and the conviction was amply supported by the evidence. The principal defense was insanity, which was submitted to the jury. However, we have concluded that the case must be reversed and remanded, because of an erroneous denial by the trial court of defendant's motion that the State produce a tape recording of defendant's confession.

Sheriff P. T. Hullum testified as a witness for the State. In the absence of the jury, on preliminary examination, Hullum said he was present with the district attorney and county attorney at a 'conference' they had with defendant either on the day of the killing or the following day. He stated on that occasion Sanders confessed that he had shot and killed Carter. The sheriff made no written notes of the confession, but he said he remembered the details of it well, although he conceded that he could not remember every item. The county attorney made a transcription of this conference with defendant, at which he allegedly gave a confession, on a recording machine, apparently a tape recording. This transcription was made for the investigative purposes of the county attorney. Defendant's counsel then moved the court to require the State to produce the recording of the defendant's confession, in order that defendant might use it in cross-examination of the sheriff, and possibly as evidence. The circuit court overruled that motion. Thereafter the jury returned to the courtroom, and the sheriff testified concerning his recollection of defendant's oral confession, given at the recorded interview.

There was no error in admitting into evidence the testimony of the sheriff with reference to defendant's oral confession. The evidence showed it was free and voluntary. Oral testimony showing the circumstances of an extrajudicial confession, as well as a signed written confession, is admissible as primary evidence. Tyler v. State, 1930, 159 Miss. 223, 131 So. 417.

On the other hand, a transcription or tape recording was made of the entire conference or interview with defendant during which he made his confession. When properly authenticated, a tape recording of an accused's confession is admissible in evidence. Ray v. State, 1952, 213 Miss. 650, 654-657, 57 So.2d 469. The State's evidence as to the confession was offered through the testimony of the sheriff, who narrated it to the jury in accordance with his best recollection. However, the sheriff, although stating that he remembered the defendant's confession, conceded that he could not remember verbatim every detail. The defense was entitled to inspect and to hear the recording, in order to decide whether to use it in his defense, on cross-examination and as direct evidence. The pertinent rule is stated in 2 Wharton's Criminal Evidence (12th Ed., 1955) Sec. 361: 'In the proof of confessions, the whole of what the accused said on the subject at the time of making the confession should be taken together. The prosecution is entitled to show the whole statement, or if any part is omitted, the accused is entitled to supply it. It is also well settled that if a confession is made under such circumstances as to authorize its...