State v. Andy Goldizen.

• Decision Date: 13 March 1923
• Docket Number: No. 4646.,4646.
• Citation: 93 W.Va. 328
• Parties: State v. Andy Goldizen.
• Court: West Virginia Supreme Court

93 W.Va. 328

State

v.Andy Goldizen.

No. 4646.

Supreme Court of Appeals of West Virginia.

Submitted March 6, 1923.

Decided March 13, 1923.

Criminal Law Voluntary Confession Made After Statement by Officer That Confederate Had Confessed, Held Admissible.

A confession of the accused is admissible in evidence where is appears that it was made to the prosecuting attorney and sheriff without any inducement of a worldly or temporal character in the nature of a threat, promise or benefit held out to him by their in respect to his escape from, or mitigation of, his punishment. Information from them to him that a confederate in the crime had confessed and placed the guilt on the accused, unaccompanied by any threat, inducement or promise of benefit by which he could escape from, or receive diminution of, punishment from the consequences of the crime will not render the confession inadmissible.

Andy Goldizen was convicted of murder in the second degree, and he brings error.

Error to Circuit Court, Grant County.

Affirmed.

L. J. Zimmerman and L. J. Formean, for plaintiff in error.

E. T. England and R. Dennis Steed, for the State.

Lively, Judge:

The prisoner, Andy Goldizen, was convicted of the murder in the second degree, of Harman Bell, and sentenced to confinement for 18 years. The main point of error upon which he relies for reversal of the judgment is that the court permitted his written confession to go to the jury over his objection and exception.

Harman Bell was shot through the head while passing through a lonely gap in the mountain, known as Hopeville Gap, through which lies a narrow road, and through which flows a small mountain stream. The murderers had secreted themselves in the cliffs on the right of the road as the Gap is approached going up the small stream, in a commanding position from which the road could be viewed as it wound through the gorge. The murder was committed about 4 o'clock P. M. on the____day of May, 1921. Four riffle shots were heard, two fired almost together, and the other two a few moments later. Bell was on horseback and had overtaken and passed on the road a Mr. Mort Goldizen who was driving a two-horse team to his wagon accompanied by his son, a boy about 14 years old. When Mort Goldizen arrived at the place of the tragedy he found Bell lying on his face on the left of the road in a crumpled position, blood scattered over the road bed, and his hat lying 10 or 15 feet from his head. A riffle bullet had penetrated the left lobe of the victim's brain, tearing a rugged orifice near the base of the brain where it escaped. Death had been almost instantaneous. The horse of the victim was afterwards found near the scene, shot to death. Suspicion pointed to the prisoner and Walter Hevner, who were afterwards jointly indicted. The prisoner was tried separately. It appears that the prisoner and Hevner had evaded the draft service in the World war, and Bell had been instrumental in securing their apprehension, and they had been confined by federal authority for about seven months. Upon their release, and return to Grant county, they had made inquiry as to the whereabouts and doings of Bell, and had made serious threats upon his life because of his former activities against them. About noon on the day the murder was committed they had inquired and ascertained that Bell had gone to Petersburg and would likely return by his usual route through Hopeville Gap which was a short distance from where they were working and in the near neighborhood of where they resided. Henry Goldizen, a brother of the prisoner, was later apprehended on a charge of violating the prohibition laws, and was placed in the Keyser jail pending his trial. While there he sent for sheriff Kimble and told him of a conversation between himself and the prisoner, his brother, a short time after the tragedy, in which the latter told him that he and Walter Hevner had done the shooting in the Gap, and detailed the occurrence, stating what guns had been used, and where one of the rifles, the Remington, had been secreted. The rifle was afterwards found where hidden. The prisoner and Hevner were arrested, and the jail at Petersburg not being secure, they were taken by Sheriff Kimble to the Keyser jail. The authorities there could not accommodate but one of them and so informed the sheriff; however, they were lodged in jail and upon instructions of the sheriff placed in separate cells in different parts of the jail to prevent communication with each other. The following day the sheriff, accompanied by the prosecuting attorney, Smith, returned to Keyser, for the purpose, as they stated, of taking one of the accused to another jail, and to arrange for preliminary hearing, if the prisoners desired such hearing. That night Hevner made a written confession before Welch, a notary public. The confession of Hevner is not in evidence. On the following morning about 9 or 10 o'clock, the sheriff and prosecuting attorney went to the jail and had Goldizen brought down to the reception room where he said he wanted to make a statement; he was then taken to Attorney Welch's office accompanied by these officers, and his statement was reduced to writing by Mr. Welch before whom the prisoner made oath thereto after it was read to, and signed by him. Welch, on his own volition, cautioned the prisoner and told him that the statement he was about to make would be used against him, and asked him if there had been any inducements held out to him or any threats made against him. The sheriff and prosecuting attorney say that no threats, promises or offers of reward or immunity were offered to Goldizen, and that his confession was freely and voluntarily made. The sheriff says that after the prisoner had been brought out of his cell to the reception room, and they had some talk about the transfer of the prisoner to another jail and his preliminary hearing, the prisoner said he supposed that "Henry (Goldizen, his brother) had told all and he might as well make a statement." That he then did make his statement which was afterwards repeated to Welch and reduced to writing. The prosecuting attorney says that after talking about the preliminary hearing, the sheriff asked the prisoner if he wanted to make any statement about the matter, and after some moments, prisoner replied: "Well, I guess 'Hen' has told all any way and I might just as well tell the truth." He did not remember if anything had been said about Walter Hevner having made a statement. He says that no promises or inducements were made to the prisoner, and no threats made. On the contrary, he says that Sheriff Kimble told the prisoner that they had no inducements to offer, and that if he made any statement, to tell the truth about it. The prisoner says that the sheriff on that occasion told him that Hevner had told the whole story on him, and that then the prosecuting attorney "just as good as promised he would help me out if I would come up and confess it." Welch says that he asked the officers how they came to get this statement from Goldizen at that time, and "Smith told him that they had told Goldizen that Walter Hevner had made a statement the night before putting the blame on him and he (Goldizen) said he was going to tell the truth and then come over." On this evidence as to how and under what conditions the confession was given, the court admitted it as evidence to the jury, the witnesses again detailing to the jury the facts concerning the making of the confession. The written confession gives the full details of the murder.

By this confession the accused says he had made up his mind to "get Bell" or Bell would get him, because he had been instrumental in having the accused arrested as a "slacker"; that he and Hevner had talked the matter over a few times and he, the accused, had bought his 32 Remington high power rifle from his brother, who also had a.303 Savage rifle, both of which guns they took on the day of the shooting, first having learned that Bell had gone to Petersburg that morning. They went down to the Gap, reaching there about 2 o 'clock in the afternoon, keeping to the woods. The Savage rifle was in the hands of the accused, and the Remington was held by Hevner, who took a station above the accused, in what he called a channel above the rocks. They waited there until about 4 o'clock, and several persons, whose names are given, passed through the Gap on the road. When Bell got opposite them he heard a gun crack and Bell fell from his horse immediately. At the time Bell was eating a banana, and riding a black horse with a white streak running down its forehead. The horse made a quick jump and went walking on, and after it had taken a few steps two more shots were fired at the horse. The accused did not fire his gun at all, but it went off once in his hands while he was trying to get it unchoked. Immediately after the shooting Hevner complained that he, the accused, had not done any of the shooting, when it was explained...