Shepherd v. State
| Decision Date | 17 February 1891 |
| Citation | 47 N.W. 1118,31 Neb. 389 |
| Parties | CHARLES SHEPHERD v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Dodge county. Tried below before MARSHALL, J.
AFFIRMED.
T. M Franse, for plaintiff in error:
The judge must decide on the admissibility of evidence. This often involves an inquiry into facts, and when it does, he alone determines it, the jury taking no part therein, and having no power to revise his findings. Modern courts reject a confession whenever shown to have been made under the expectation of bringing favor, by whomsoever induced. (Simon v. State, 5 Fla. 285; State v. Potter, 18 Conn. 166; Spears v. State, 2 Ohio St. 583; Rex v. Thomas, 6 Car. & P. [Eng.], 353; Rex v. Dunn, 4 Id., 543.) As to the remarks of the court: Kersenbrock v. Martin, 12 Neb. 376; Markel v. Moudy, 11 Id., 218; Poine v. Kohl, 14 Id., 581; Marion v. State, 20 Id., 244; Horbach v. Miller, 4 Id., 43; R. V. R. Co. v. Arnold, 13 Id., 488. As to the confessions: Heldt v. State, 20 Neb. 496; Irwin v. State, 54 Ga. 39; Bob v. State, 32 Ala. 560; Williams v. State, 35 Tex. 356; Deathridge v. State, 1 Sneed [Tenn.], 75; Porter v. State, 55 Ala. 95; Beery v. U.S. 2 Col., 186; State v. Jones, 54 Mo. 478; Dinah v. State, 39 Ala. 359; State v. Lowhorne, 66 N. Car., 638; State v. Clarissa, 11 Ala. 57; Com. v. Harman, 4 Barr [Pa. St.], 269; Bishop, Crim. Proc., secs. 1234, 1236; Spears v. State, 2 Ohio St. 586; Simon v. State, 5 Fla. 285; Rex v. Hall, 2 Leach [Eng.], 559.
William Leese, Attorney General, and Geo. L. Loomis, contra:
The examination as to confessions should be conducted in the presence of the jury. (Mose v. State, 36 Ala. 211; Holsenbake v. State, 45 Ga. 43.) It is the province of the court, not of the jury, to determine the admissibility of evidence. (Rufus v. State, 25 Ohio St. 464; Com. v. Culur, 126 Mass. 464; Fife v. Com., 29 Pa. 429; Memaka v. State, 55 Ala. 47; Runnels v. State, 28 Ark. 121; Wallace v. State, Id., 531; State v. Squires, 48 N. H., 364.) The confession was admissible.
The plaintiff in error, Charles Shepherd, at the January, 1890, term of the district court of Dodge county was jointly indicted with Christian Furst for the murder of Carlos True Pulsifer. A separate trial was had. The plaintiff in error was convicted of murder in the first degree, and sentenced to be hanged.
On the trial the state, over the defendant's objection, proved several statements or confessions of guilt made by the accused. The first point made in the brief of the plaintiff in error is that the court erred in not excluding the jury from the court room during the preliminary hearing before the court to determine whether or not such confessions were voluntary. It is firmly settled that when a person arrested for a crime confesses his guilt, such confessions, if free and voluntary and not obtained through fear or from promise of favor, may be proven on the trial. The admissibility of confessions, like any other testimony, is for the court to determine, but when introduced the credit to be given them is for the jury to pass upon.
The importance of the jury hearing the preliminary examination had before the court to ascertain whether or not the confessions were voluntary is obvious. The ruling of the court that they were so made being only prima facie, the jury must ultimately pass upon the question, and, in determining the weight to be given confessions when introduced, the jury may properly consider all the facts and circumstances surrounding their making. (Holsenbake v. State, 45 Ga. 43; Mose v. State, 36 Ala. 211; Rice v. State, 47 Ala. 38.)
The rule is that the jury should not be excluded during the determination of the question whether dying declarations are admissible. (People v. Smith, 104 N.Y. 491, 10 N.E. 873; State v. Cain, 20 W.Va. 679; State v. Wood, 53 N.H. 484.) No good reason can be suggested why a different practice should prevail as to the admission of confessions.
Objection is made to the following language used by the trial judge in passing upon the defendant's objection to the witness King testifying to statements made to him by the prisoner:
"In view of the fact that the jury will ultimately pass upon this question it is perhaps improper for the court to review the evidence, and the court will only announce the conclusion arrived at, and that is that it has not been shown that the statements made to the witness, if any, witness King was produced either by promise or favor or through threats; or in other words, that it was involuntary, but on the contrary that the evidence shows that the statements made to King were voluntary, and the objection to the witness King stating what the defendant had stated to him will be overruled."
We do not discover anything prejudicial to the accused in the remarks of the judge, nor was there any invasion of the province of the jury. The weight and effect to be given the confessions of the defendant were properly left to the jury. They could not have understood that they were not at liberty to find that they were involuntary. The court by the 23d paragraph of the instructions left it to the jury to ascertain from the evidence whether or not the statements and confessions testified to by the witnesses as having been made by the defendant were his free and voluntary act.
It is next urged that the court erred in admitting the testimony of the witness, J. J. King, as to an alleged confession made by the defendant to the witness. We quote the questions propounded to King, and his answers thereto:
Q. State whether or not, while the defendant Shepherd was in your store in the forenoon of December 12th, you had any conversation with him with reference to the hairs upon his pants, and the appearance of his pants that he had on at the time of his arrest.
A. I did.
Q. What was the conversation?
A. I came in and he was sitting on the counter and I walked up to him, I said Charlie this looks very suspicious--calling Charlie's attention to the condition of his pants.
Q. Go on.
A. Then he said, well, he said, we stole the horses, but we did not kill Carl Pulsifer.
Q. Go on, Mr. King.
A. I don't think that I said anything else, did not excuse or anything of the kind.
Q. At that time?
A. And then I said, where did you part with Chris, and and he says, I parted with him down the railroad; I said, which way did he go? he said, he went northwest across the country; I said, where did you go? he said, I went along the river and gathered up those traps.
Q. And what were the traps?
A. Gathered up the traps, he said he had the traps set out along the river and that he had set them out the Monday previous and had come up to Crowell going home and I asked him where he thought we would find Chris, and he said that we would find him near the bridge at the county line; there was a number standing around there and they went up there.
Q. Now state whether or not while you were still there that forenoon his satchel, Exhibit No. 7, was brought in by the party who found it.
A. Yes.
Q. I think you stated that you rode in a buggy with the defendant from Crowell to Scribner?
A. Yes, I did.
Q. Now what, if any, conversation did you have with him in the carriage on the way to Scribner with reference to this valise?
Q. I asked him which one of those hay stacks up there did he leave his satchel by. We had at this time got right along on the east side of the land where these hay stacks stood.
Q. Were you or not in sight of the hay stacks?
A. Yes.
Q. What did he say?
A. He said that is not my satchel, and I said Charlie you need not deny that satchel, I said I have seen you carry that too often heretofore; well, he said, I mean it is not mine, he said I just got it borrowed; then I said you do not deny carrying it heretofore, he said no; I asked him where he left it; he said up there, pointing on a hill to one of these stacks.
Q. By looking on this map could you state where the stacks stood that he referred to?
A. I think I could; we crossed right there and go down to here, go right to this section corner and then go right here. This road runs to that corner and then goes south, and the bridge is right here, and this whole side of section 15 is open and this satchel was amongst those stacks on the bluffs.
Q. That is the hay stack he indicated?
A. Yes, the satchel was right on the bluff, right there.
Q. Now, did you have any further conversation with him in reference to the Pulsifer murder or his connection with it on your way down to Scribner?
A. Not on our way down there; no.
Q. Having got to Scribner you have testified, I believe, that...
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