Smith v. Commonwealth

• Decision Date: 08 September 1853
• Citation: 51 Va. 734
• Parties: SMITH v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

51 Va. 734

SMITH v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

September 8, 1853

1. On a trial for felony, a confession of the prisoner may be given in evidence, unless it appears that the confession was obtained from the party by some inducement of a wordly or temporal character in the nature of a threat, or promise of benefit, held out to him in respect of his escape from the consequences of the offence or the mitigation of the punishment, by a person in authority or with the apparent sanction of such person.

2. A person to whom a free negro is bound as apprentice, though a justice of the peace, if not acting as such, and no way affected by the offence, is not a person in authority in the sense of the rule which excludes confessions made to a person in authority.

This was an indictment in the Circuit court of Washington county against Benjamin Smith, a free negro, for a rape upon Margaret Trent, a white girl. Upon the first trial the jury was hung. On the second trial the prisoner was convicted and sentenced to be hung. On both trials the prisoner excepted to an opinion of the court admitting evidence of his confessions. It appears that the prisoner was raised by Andrew Edmonson, a magistrate of the county of Washington and at the time of the confession he was an indented apprentice to Edmonson, and living with him. That when the constable came to the house of Edmonson to arrest the prisoner for the offence, the officer went to bed; and early the next morning before the prisoner had got up, the witness Edmonson went to the kitchen where the prisoner was asleep and called him up. When the prisoner got up, the witness sat down beside him and said to him solemnly, " The die is cast. The dog is dead. She (meaning the prosecutrix) has sworn it, and you must suffer. Now will you suffer and let Campbell escape. Now I want you to tell me the truth, the whole truth, and nothing but the truth; and I will save your neck if I can." And thereupon the prisoner made a full confession to the witness of his guilt. On the first trial as the bill of exceptions set out, the witness stated, that at the time the prisoner seemed convulsed with fear.

The Campbell spoken of by the witness was a negro man who before this trial, had been tried, convicted and executed for a similar offence committed upon the same prosecutrix, and at the same time.

Upon the application of the prisoner, this court allowed a writ of error to the judgment.

J W. Sheffey, for the prisoner.

The Attorney General, for the commonwealth.

LEE J.

There is confessedly some obscurity and confusion in the law upon the subject of confessions in criminal cases. The dicta of the English judges in many cases will be found wholly irreconcilable, and some of their reported decisions at nisi prius directly conflicting. Another difficulty in arriving at correct results arises from the fact that those judges, in delivering their opinions, have sometimes used language broad enough to cover other cases marked by very different circumstances, although no doubt intended by them to be construed and understood with reference to the subject matter--the case in hand--of which they were treating. And the elementary writers, in giving the rules which they supposed to be fairly deducible from those opinions, have sometimes laid them down much too broadly by failing to advert to the restrictions imposed by the circumstances of the particular case. The dicta of judges at nisi prius are also frequently cited as authorities without reference to their agreement or disagreement with adjudicated cases, and the decisions are given in a form so concise and with a statement of the facts upon which they were pronounced so meagre and imperfect, that they can be entitled to little weight as authority. The rules too which are given by those writers, being deduced from dicta and decisions which cannot be reconciled among themselves, will be found to be in some instances directly conflicting.

Of this conflict of opinion among the English judges, repeated instances are to be met with in the reported cases, and some of them will be hereafter more particularly adverted to. Even with regard to the weight and degree of credit which a jury should attach to a confession of a party accused of crime, much difference of opinion has existed. In Warickshall's Case, 1 Leach 298, it is declared that a free and voluntary confession is deserving of the highest degree of credit, as flowing from the highest sense of guilt. So in Lambe's Case, 2 Leach 625, it is stated as the opinion of the judges, that it constitutes the highest and most satisfactory evidence of guilt. Chief Baron Gilbert says, that a voluntary confession is reckoned the best evidence; Gilb. Ev. 123; and such is the opinion of Erle, justice, expressed in Baldry's Case, 2 Denison's C. C. 430. On the other hand, Justice Foster regards hasty confessions as the weakest and most suspicious of all kinds of evidence. Foster's Crown Law 243. And of this opinion is Sir William Blackstone. 4 Bl. Com. 357. In Simon's Case, 6 Carr. & Payne 541, Alderson, baron, speaking of the admission of the party, says that it showed how little reliance was to be placed on evidence of that character. And in a note to the case of Earle et ux. v. Picken, 5 Carr. & Payne 542, Parke, justice, is reported to have remarked upon several different occasions upon his circuit, that too much weight ought not to be attached to evidence of this kind. A similar diversity of opinion will be found to have existed among the judges in this country. Perhaps no general proposition can be predicated concerning the weight and degree of credit to be given to a confession; because this must depend in every case upon the age, character and mental capacity of the party, and the share of education which he has enjoyed, and all the surrounding circumstances which attended it. And this seems to be the opinion of a learned writer on the law of evidence. 1 Greenl. Ev. § 215.

Whatever may be the degree of credit due to it, the confession of a party charged with a criminal offence is admissible testimony against him, being received upon the presumption that no one will make a statement contrary to his own interest if it be untrue. 1 Phil. Ev. 110. Hence when the circumstances are such as to overthrow that presumption and to leave it uncertain whether the statement be true or false, the law deems it better that it should be withdrawn from the jury, and the confession will accordingly be rejected. Per Campbell, C. J. and Pollock, C. B. Baldry's Case, 2 Denison's C. C. 430. It is therefore declared as the condition of the admissibility of a confession, that it be free and voluntary, and not made under the influence of such a bias upon the mind of the party as will in the judgment of the law, disturb the free exercise of volition, and destroy the presumption that the confession so made is true: And this, the judge and not the jury, is to determine.

What shall be said to constitute such an influence or bias on the mind as will serve to repel the presumption that the confession is true, and thus exclude it from the jury, has given occasion to much discussion and various opinions on the numerous cases reported in the books. And it must be confessed that in settling the doctrine upon this subject, rules of a highly artificial and somewhat arbitrary character have been applied by the courts. It may well be questioned whether, if the matter were res integra, it would not be better (as is the practice in Scotland, see Alison's Crim. Law of Scot. 581, 582,) to suffer the whole to go to the jury to be weighed by them, and such degree of credit to be given to it as they shall deem it entitled to when considered in connection with the surrounding circumstances. My own experience, I confess, has not inculcated that distrust of the competency of juries to make proper discriminations which would seem to be implied in some of the rules which have prevailed upon this subject. Or, if it be determined that it is the province of the judge to say whether the confession is of such character as to be admissible as evidence, it may be doubted if it would not be better to permit him to decide the question upon his own view of all the circumstances, comprehending the nature of the confession itself, the character and condition of the party making it, and of him to whom it is made, and the time, place and manner in which it was so made, untrammeled by the artificial rules which have been established for his government. It has, however, been so long and firmly settled that the judge is to pass on the admissibility of the confession, and to be governed by certain prescribed principles in forming his judgment, that it is a matter now no longer to be drawn in question or disturbed; and we must abide by the doctrine as it is settled.

It has however, been justly remarked that the decisions excluding confessions have gone to a length neither required by justice nor warranted in reason or by sound policy. And this has been alluded to by learned judges in terms of regret and complaint. Parke, justice, has said " that the doctrine of inducements (under the supposed influence of which the confessions were regarded as having been made) has been carried to the verge of common sense." See citation 1 Phil. Ev. 424, 8th ed. in note. In Baldry's Case, 2 Denison's C. C. 430, Erle, justice, says, " According to my judgment, in many cases where confessions have been excluded, justice and common sense have been sacrificed not at the shrine of mercy, but at the shrine of guilt. " And in the same case, at p. 445, Parke, baron, in speaking of the inducements that had been held sufficient to vitiate confession, says, " The decisions to that...