State v. Dena

• Citation: 28 N.M. 479,214 P. 583
• Decision Date: 05 April 1923
• Docket Number: No. 2769.,2769.
• Parties: STATEv.DENA ET AL.
• Court: Supreme Court of New Mexico

28 N.M. 479

214 P. 583

STATE

v.DENA ET AL.

No. 2769.

Supreme Court of New Mexico.

April 5, 1923.

Syllabus by the Court.

Confessions which are freely and voluntarily made, without duress, coercion, hope, fear, and without promise of reward or immunity, even though made while the accused is under arrest and before advice of counsel is obtained, are admissible in evidence.

Where it affirmatively appears from the state's evidence that the accused, being Indians, unable to speak the English language, asked the deputy sheriff who then had them under arrest and in his custody if they would be hurt if they confessed, that such officer assured them they would not be hurt, and that it would be better for them to tell the truth, such confessions made immediately thereafter are not admissible.

Section 2166, Code 1915, construed, and held to merely make the accused a competent witness in his own behalf, and not to exclude evidence of confessions which are freely and voluntarily made.

Proof of the corpus delicti of the crime charged in the indictment cannot be established by extrajudicial confessions alone.

Confessions which are made before a committing magistrate during a preliminary hearing are judicial, and as such will, without other evidence of the corpus delicti, support a conviction.

Appeal from District Court, McKinley County; Holloman, Judge.

Noki Dena and others were convicted of murder in the first degree, and they appeal. Reversed and remanded, with directions.

Proof of “corpus delicti,” meaning the proof that the person whose death is charged in the indictment is in fact dead, and that his death was caused by the criminal act or agency of another, cannot be established by extrajudicial confessions alone.

J. W. Chapman and E. R. French, both of Gallup, for appellants.

H. S. Bowman, Atty. Gen., and A. M. Edwards, Asst. Atty. Gen., for the State.

BRATTON, J.

Appellants were jointly indicted charged with the murder of one Frank Lewis. The indictment contained three counts, the first charging that the said Lewis was killed by being struck and beaten on the head with a wooden club. The second count charged that he was killed by being struck and beaten on the head with an axe, and the third charged that he was killed by some means unknown to the grand jury. By separate verdict each of the appellants was found guilty of murder in the first degree, and pursuant thereto was sentenced to death.

[1] Appellants first argue that the court erred in admitting in evidence certain testimony tending to establish two different confessions made by them, the first being made to Bob Roberts, who was deputy sheriff of McKinley County, and the second being made by them during their preliminary hearing. They assert that such confessions were not admissible because made while they were under arrest, without the advice of counsel, without being warned, and that they were involuntary in character. It has been many times declared by this court that confessions which are made without being induced by threats, duress, coercion, fear, hope, promise of reward or immunity, but from the voluntary volition of the accused, become admissible, and the fact that appellants were under arrest or were not represented by counsel is immaterial. The two leading principles of exclusion applicable to confessions were fully and thoroughly discussed in Territory v. Emilio, 14 N. M. 147, 89 Pac. 239, wherein Justice Parker announced the first to be that, when such confessions are induced by promises or threats, hope or fear, the temptation to speak falsely is so great as to render the statements so made entirely untrustworthy, and the second being that that portion of the Fifth Amendment to the Constitution of the United States which provides that “no person shall be compelled in any criminal case to be a witness against himself” excluded involuntary confession, but when they are freely and voluntarily made, without being induced by promises or threats, hope or fear, duress or coercion, both doctrines of exclusion are met and overcome, and they are then admissible. Section 15 of article 2 of our Constitution being substantially the same, with regard to the question now under consideration, as the Fifth Amendment to the Constitution of the United States, this court is led to the same conclusion concerning the admissibility of confessions as was the territorial court. The case referred to has been many times followed by this court, and the law upon this subject has now become well settled in this state. Territory v. Lobato, 17 N. M. 666, 134 Pac. 222, L. R. A. 1917A, 1226; State v. Armijo, 18 N. M. 262, 133 Pac. 555; State v. Ascarate, 21 N. M. 192, 153 Pac. 1036; State v. Orfanakis, 22 N. M. 107, 159 Pac. 674; State v. Anderson, 24 N. M. 360, 174 Pac. 215; State v. McDaniels, 27 N. M. 59, 196 Pac. 177; State v. Chaves, 27 N. M. 504, 202 Pac. 694.

[2] It is affirmatively shown by the state's evidence, however, that prior to making their confessions to the deputy sheriff, Bob Roberts, who then had them in his custody upon this charge, the appellants asked him if they would be hurt if they confessed; that in response to such inquiry he told them that they would not be hurt, and that it would be better for them to tell the truth. Whether or not such promises so made or inducements so held out by the officer having the accused in his possession and which may tend to establish hope in the mind of the accused are such as to render confessions made under such circumstances inadmissible is a question which has frequently been considered by the courts of other states. The authorities are divided with reference to whether the mere advice on the part of such officer to tell the truth––that it will be better to tell the truth––is sufficient to show improper influence in inducing the confession. We are not required, however, to determine whether the mere adjuration to tell...