State v. Force
| Decision Date | 20 May 1903 |
| Docket Number | 12,558 |
| Citation | 95 N.W. 42,69 Neb. 162 |
| Parties | STATE OF NEBRASKA v. JAMES FORCE |
| Court | Nebraska Supreme Court |
ERROR to the district court for Sioux county: JAMES J. HARRINGTON DISTRICT JUDGE. Exceptions to the rulings of the trial court on the admission of evidence, under section 483 of the criminal code. Exceptions sustained.
EXCEPTIONS SUSTAINED.
M. J O'Connell, Albert W. Crites and W. H. Fanning, for the state.
Francis G. Hamer, contra.
This is an error proceeding prosecuted by the county attorney of Sioux county under the provisions of sections 515, 516, 517 of the criminal code, from a judgment of the district court for that county, directing the acquittal of James Force, charged with the murder of one Harvey Russell on June 16, 1901. The trial was had on December 5, 1901. Very little material or competent evidence was offered and received by the trial court, and, upon the evidence received, the jury would hardly have been justified in finding the defendant guilty. The peremptory instruction of the trial court was therefore right; and the only question requiring consideration is: Whether the trial court erred in excluding certain evidence offered by the prosecution, tending to establish the guilt of the accused. This evidence relates to alleged confessions and statements made by defendant, which it was contended, on the part of the defense, were not voluntarily made, and were therefore inadmissible.
It is disclosed that Harvey Russell was found dead on June 16, 1901, having been shot with a rifle once through the head, and once through the body, and having also sustained a slight flesh wound in the abdomen. Either of the first mentioned wounds would necessarily have proved fatal. It is disclosed that James Force came to his home, the residence of his father and mother, some time in the forenoon of June 16, his parents both being in the house at that time. A younger brother of the defendant, as well as a hired hand, seem to have been outside caring for the horses. It seems that defendant made some statement to his mother, who thereupon said to her husband, Franklin Force, "James has shot Harvey Russell." While testimony regarding these facts was being received, the jury were excused from the court room, and the mother, whose name for some unknown reason was not indorsed upon the information, was called as a witness by the defense, for the purpose of showing that the alleged confession which was about to be offered was not voluntary; and what transpired at the trial may best be shown by her testimony as follows:
Q. You remember June 16, about 10 o'clock in the forenoon?
A. Yes, sir.
Q. Were you in your kitchen about that time?
A. Yes, sir.
Q. Who was there with you?
A. James.
Q. Your son?
A. Yes, sir.
Q. Where was his father, Franklin Force, at that time?
A. In an adjoining room.
Q. Did anybody go into the room where Mr. Force was?
A. I stepped to the door.
Q. What did you say to Franklin Force?
A. I said, "James has shot Harvey Russell."
Q. What did Mr. Force then do?
A. He came out.
Q. Where was Frank Houston at that time?
A. Well, he went out and ordered Frank to get the team.
Q. Did Frank go and get the team?
A. Yes, sir.
Q. Then what did Mr. Force say to James?
A. He said, "James, you will have to go to Harrison and tell the sheriff, county attorney and coroner's jury all about the killing of Harvey Russell; if you do you may get clear, and if you don't you may be convicted."
Q. State anything more he said there that you remember.
A. James said, "I don't want to go, Pa, till I have an attorney."
Q. Did he mention any attorney that he wanted to get?
A. Attorney Harrington.
Q. What did he say about that, what did James say, if anything, further?
A. He said he wanted attorney Harrington.
Q. Before he said or did anything?
A. Yes, sir, before he said or did anything. * * *
Q. Now, then, what did his father say when his son said that he did not want to tell anything or do anything until he got his attorney?
A. He stepped aside to a room and picked up a shotgun and said, "James, you are my prisoner; I have a right to arrest you; you shall go to Harrison and tell the sheriff, county attorney and coroner's jury all about the killing of Harvey Russell and you will get clear, but if you don't you will be convicted."
Q. What did James say?
A. He said, "Well, Pa, I will go then."
The father, the mother and the defendant, who was then about twenty years of age, got into the wagon and went to Harrison, where the defendant gave himself up to the sheriff; and the sheriff, acting as coroner, summoned a jury, and with the defendant, the county attorney, and members of the coroner's jury, repaired to the place where the homicide was committed. The father and one or two other persons were also present at the place where the body was found. After examining the body and the surrounding ground, the jury were sworn, as also was the defendant, who thereupon told his story to the jury, which was taken down in writing by one of the members thereof. The prosecution sought to show the statements made by the defendant on this occasion at the scene of the homicide, as to the manner in which the difficulty arose, and the killing occurred. This was objected to by the defense, on the ground that defendant had been coerced by his father to make the confession, and that he had been under restraint and duress; and also that the statement of his father to him that he would be acquitted if he told the whole story was such an inducement as rendered the whole confession incompetent. It was shown that no threats were made against him by any of the persons present at this meeting, and that no promise or hope of reward was held out other than that coming from his father, as disclosed in the testimony of the mother already quoted.
"The rule is well settled that a promise of benefit or favor, or a threat or intimation of disfavor connected with the subject of the charge, held out by a person having authority in the matter, will be sufficient to exclude a confession made in consequence of such inducement, either of hope or fear." Heldt v. State, 20 Neb. 492, 30 N.W. 626; Furst v. State, 31 Neb. 403, 47 N.W. 1116.
Measured by this rule, we are satisfied that the testimony of defendant given at the coroner's inquest, and the statements and explanations made by him, at that time, to the members of the coroner's jury, the sheriff and county attorney, were not voluntary statements within the meaning of the rule. If the trial court believed the testimony of Mrs. Force, given regarding the transaction, which we assume it did, then the confessions and statements were not such as were properly admissible against the accused. It is quite clear that had the defendant been left to his own volition, he would not have gone to Harrison and delivered himself up to the sheriff; at least, not until he had counsel; and it is equally clear that he would not have given his testimony before the coroner's jury. While the father was not, probably, strictly a person in authority, within the rule recognized in most of the cases, yet, it should be remarked that the defendant was a minor residing at the home of his parents, his father exercising parental authority over him, for which reason we think the case comes reasonably within the rule. It follows, therefore, that the ruling of the trial court in excluding the evidence regarding the confessions of defendant under these circumstances, and his statements made to the officers and members of the coroner's jury, is correct and should be sustained.
It appears that the names of the mother, the younger brother of defendant and Frank Houston, all of whom doubtless heard the conversation, were not indorsed on the information, the reason of the failure of the prosecution so to indorse these names not appearing anywhere in the record. The testimony of these witnesses would manifestly have been material. It is further disclosed that from the time of the homicide until the trial, almost six months, the defendant was in the custody of one Ernest Lyons, who was acting as jailor and who had also been a member of the coroner's jury. It seems that some time during the six months intervening between the homicide and the trial, the defendant, who took his meals with the jailer at the latter's residence, made certain statements to the jailer, and the prosecution sought to show these statements, by calling him as a witness. His testimony was objected to on the ground that he had been a member of the coroner's jury, had heard the involuntary statements and confessions of defendant, wherefore the defendant would as a matter of course tell the same story that he had previously told, the duress of the father which had extorted the first confession still existing. Lyons testified as follows:
Q. How long have you known him (meaning the defendant)?
A. I saw him first on the 16th day of June.
Q. Have you known him since then?
A. Yes, sir.
Q. I will ask you whether since that time, during the whole or any part of the period, he has boarded at your house?
A. Yes, sir.
Q. Did you since that time, and while he was boarding there, have any conversation with him in reference to the killing of Harvey Russell, of which he stands charged?
A. Not, but very little.
Q. Did he make any statement to you at any time since as to the manner of the killing of the deceased, Harvey Russell?
To this objection was interposed, and upon cross-examination, it was shown that this witness had been a member of the coroner's jury, and had been acting as jailer, having the defendant in charge.
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