State v. Danelly
Decision Date | 14 May 1921 |
Docket Number | 10599. |
Citation | 107 S.E. 149,116 S.C. 113 |
Parties | STATE v. DANELLY. |
Court | South Carolina Supreme Court |
Appeal from General Sessions Circuit Court of Orangeburg County James E. Peurifoy, Judge.
Howard Danelly was convicted of burglary and grand larceny, and sentenced to imprisonment for life, and he appeals. Reversed and remanded for new trial.
Jacob Moorer, of Orangeburg, for appellant.
Solicitor A. J. Hydrick, of Orangeburg, for the State.
The appellant was tried and convicted in the court of general sessions at Orangeburg, at January term, 1920, before Judge Peurifoy and a jury, upon the charge of burglary and grand larceny at common law. Sentence, imprisonment for life.
The appeal raises but three questions:
(1) Did the circuit judge err in admitting certain statements of the defendant alleged to have been a confession of guilt or an admission of certain facts connecting him with the crime?
(2) Did the circuit judge err in not determining for himself the preliminary question of the admissibility of such statements?
(3) Did the circuit judge err in charging the jury that the defense of alibi was "a rogue's defense"?
These questions are imperfectly presented in exceptions 1, 2, and 4, but will be considered ex gratia. Exception 3 will not be considered for the reason that no specific error is pointed out.
The first question: It appears that the defendant was arrested by a constable at Pregnall's, some distance from the scene of the crime, on a passenger train bound for Charleston. He had upon his person a watch, identified as the property of the prosecutor, a bottle partly filled with gasoline, and a bundle of clothes afterwards discovered on the train when it reached Charleston was identified as the property of the prosecutor. After he was taken from the train the defendant was locked up. Leading up to the introduction of certain statements made by the defendant the constable was asked as to inducements or threats. He stated that he had not threatened the defendant, but that he had told him "that it would be a whole lot better for him to tell the truth"; "he asked my advice, and I said that the easiest way was the best way; that it would pay a man best to tell the truth;" that the statements were made without reward and voluntarily. Defendant's attorney objected to the introduction of the statements upon the ground that they were induced by a hope of benefit. The circuit judge did not rule upon the admissibility of the statements, but stated that he would submit the question as to the voluntary character of the statements to the jury under proper instructions. The statements were allowed to go to the jury. We do not find in them any confession of guilt. The witness testified that the defendant "told where the gun was" (it was in evidence that a gun had been taken from the house); "he said that the clothes were in Charleston;" "that there was a package on the train;" "that his (Duggin's, the prosecutor's) clothes were on the train." The information about the gun was followed up, but the gun was not found where the defendant said it was; it was found on the railroad right of way while the tracks were being followed, along the route upon which the telegraph post indicated by the defendant was located. The clothes were found in a bundle on the train after it reached Charleston, and were returned to the prosecutor.
There are two considerations which in our opinion rendered the statements of the prisoner admissible: (1) The observations of the constable to the effect that it would be better for him to tell the truth were made in response to the prisoner's request for advice in the matter--"He asked my advice"--and were such as would naturally suggest themselves to a normal mind under the circumstances and do not show that they were officiously made by the constable to secure a confession or an admission. State v. Crank, 2 Bail. 66, 23 Am. Dec. 117. (2) Even if objectionable upon the ground that they were induced by the hope of benefit, they were admissible if they pointed to a distinct substantive fact from which the guilt of the prisoner might have been inferred. State v. Crank, 2 Bail. 66, 23 Am. Dec. 117.
We therefore conclude that the statements of the prisoner relating to the gun and clothes were properly received.
The second question: The general rule unquestionably is as stated in State v. Rogers, 99 S.C. 504, 83 S.E. 971:
"A confession is not admissible unless it is voluntary, and the question whether it is voluntary must be determined, in the first instance, by the presiding judge."
We do not understand, however, that this is an absolutely inflexible rule.
The court in State v. Moorman, 27 S.C. 22, 2 S.E. 621, after stating the general rule to be that the preliminary question of the admissibility of a confession or admission should be first determined by the presiding judge, declares:
This is exactly the course pursued by the circuit judge in this case, and we cannot say that under the circumstances his discretion was abused. If the statements were, as we hold, admissible, the defendant was benefited, or at least given the chance of benefit, rather than prejudice, by submitting the question to the jury. Furthermore, the prompt exclusion of the testimony would seriously prejudice the right of the state to offer the statements, even if involuntary, under the circumstances referred to in State v. Motley, 7 Rich. 327, and 12 Cyc. 478, above cited.
The third question: The circuit judge charged the jury as follows:
The presumption of innocence accompanied the defendant from the moment of his arraignment; it clothed him "as with a garment" until a verdict of guilty stripped this presumptive robe of righteousness from his person; he was entitled to recognition as a member of that class to which the presumption assigned him, the innocent, and not the guilty.
Alibi is not only a proper defense, but to an innocent man is always an essential defense, and indeed it may be his only defense; it affords, when established, the most perfect, physically conclusive evidence of his innocence. This court can rarely escape a mental conclusion as to the guilt or innocence of a defendant; but it cannot allow that conclusion to change its interpretation of the law.
To instruct a jury that this refuge of an innocent man, actual or presumptive, is a rogue's defense, is impliedly to assign the defendant to a class to which in fact he may not, and in law he certainly does not, at that stage of the trial, belong; it throws discredit upon, disparages, a perfectly legal defense, strongly indicative of the impression which the testimony has made upon the court.
In State v. Crowell, 149 Mo. 391, 50 S.W. 893, 73 Am. St. Rep. 402, the charge was not nearly so harsh:
"Though an alibi may be a well-worn defense, yet it is a legal one, to the benefit of which the defendant is entitled."
It was held reversible error, the court saying:
etc.
Judge Freeman in a note adds:
"Whenever an instruction has been given which clearly casts discredit upon the defense of alibi, and it appears possible that it could have prejudiced the accused, the appellate court will grant a new trial."
Quoting from the American Digest, the following are substantially the holdings of other courts:
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State v. Griffin
... ... pistol recently fired, are all logically and justly ... admissible in evidence to connect the suspect with the crime, ... and the law will not be hypercritical, as to the method by ... which they may have been secured ... In the ... case of State v. Danelly, 116 S.C. 113, 107 S.E ... 149, 14 A. L. R. 1420, it is decided even in the case of an ... illegally extorted confession, so much of it, as led to a ... discovery of material facts and those facts, may be received ... in evidence. There the facts discovered in an unlawful manner ... become ... ...
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State v. Hester
...there was no compulsion; but that all the statements made by the defendant were absolutely voluntary. In the case of the State v. Danelly, 116 S.C. 113, 107 S.E. 149, 14 L. R. 1420, heard by the court en banc, in an opinion written by Mr. Justice Cothran, the court quoted with approval the ......
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State v. Pittman
... ... was involuntary. Certainly, the admission of the evidence and ... the submission to the jury under appropriate instructions of ... the question as to whether or not it was the product of ... duress, may not soundly be pronounced error of law. State ... v. Danelly, 116 S.C. 113, 107 S.E. 149, 14 A. L. R ... 1420; State v. Lyle, supra; State v. McAlister, 133 ... S.C. 99, 130 S.E. 511, filed Nov. 17, 1925 ... It is ... contended, however (exception 14), that, in view of the ... admission of the statement of Hol Howard as to Henry ... ...
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State v. John J. Cocklin
... ... 175; Comm. v. Knapp, 26 ... Mass. 496, 511, 20 Am. Dec. 491; Laros v ... Comm., 84 Pa. 200, 209; Shufflin v ... State, 122 Ark. 606, 184 S.W. 454; Duffy v ... People, 26 N.Y. 588; Deathridge v ... State, 33 Tenn. 75; State v ... Winston, 116 N.C. 990, 21 S.E. 37; State v ... Danelly, 116 S.C. 113, 107 S.E. 149, 14 A.L.R. 1420, ... and many other cases. Since it is an open question with us, ... we adopt this rule ... ... Assuming then, but not deciding, that the information given ... by the respondent respecting his operations with the bank was ... ...