State v. Gee Jon
| Decision Date | 05 January 1923 |
| Docket Number | 2547. |
| Citation | 211 P. 676,46 Nev. 418 |
| Parties | STATE v. GEE JON ET AL. |
| Court | Nevada Supreme Court |
Appeal from District Court, Mineral County; Emmet J. Walsh, Judge.
Gee Jon and Hughie Sing were convicted of murder, and they appeal. Affirmed.
Frame & Raffetto, of Reno, and T. J. D. Salter, of Winnemucca, for appellants.
L. B Fowler, Atty. Gen., Robert Richards, Deputy Atty. Gen., J. H White, Dist. Atty., of Hawthorne, and George S. Green, of Reno, for the State.
The appellants were convicted in the district court of Mineral county upon a charge of murder, alleged to have been committed therein, and were sentenced to suffer the death penalty. A motion for a new trial and for an arrest of judgment having been denied, an appeal was taken to this court.
The facts of the case, as shown by the testimony of the state, and which the jury must have found to be true, are:
About 8 o'clock on the morning of August 28, 1921, a Chinaman known as Tom Quong Kee was found dead in his cabin at Mina, Mineral county, Nev., with a bullet hole through his body. About a week before, the defendants had spent one day in Mina. On the evening of the 26th of August, defendant Sing engaged one Pappas, of Reno, Nev., a taxi driver, to take him and the other appellant on the next day to Tonopah. They left Reno in the morning, going by way of Virginia City, Yerington, and Hawthorne, and arrived at a point about a mile out of Mina around 8 or 9 o'clock in the evening. At that point Sing, who could speak English, directed Pappas to pull out of the road and await the return of the defendants, who left the car and walked in the direction of Mina. Pappas fell asleep, and was awakened about 10 o'clock by the horn of a passing car. Not having had anything to eat that day, except a glass of milk, which was in the morning, he started to drive to Mina to procure food. Meeting the defendants on the way, they got into the car, and proceeded toward town for a short distance, when Pappas was told to stop. After turning the car out of the road, he was given a dollar and directed to go into town and get some beer, which he did. He was gone 30 or 40 minutes. Upon returning to the car he opened the beer, and each had two bottles, after which he was directed by Sing to return to Reno, where they arrived at 10 o'clock on the morning of August 28th.
Upon the discovery of the dead Chinaman on the morning of August 28th, the deputy sheriff (Hamill) made an examination of the body and of the premises, and traced footsteps of two persons leading from the point at which the car stood when the beer was drunk to the cabin in which the Chinaman had been shot, and back to the same point, after which he called up the chief of police in Reno, informed him of the facts, and requested him to arrest Pappas and the two defendants upon their return to Reno, which was done shortly after their arrival. The two defendants were placed in jail, where the defendant Sing made a confession on the evening of the same day.
As occasion may require, this skeleton of the facts will be supplemented in disposing of certain of the questions presented.
It is contended that the court erred in admitting in evidence the confession made by the defendant Sing. This contention is based upon the theory that the confession was not voluntary, because one of the officers in whose presence he made it told him to "tell the truth; that the truth would be best for him." Counsel for appellants say in their brief:
We readily concede that if Sing was told by the officers that he would be turned loose if he made a statement, the confession would be involuntary, and that it should have been excluded. The fact is that Sing made his confession in the presence of Chief of Police Kirkley, Deputy Sheriff Hamill, and Police Officer Dean, all of whom deny that any such statement was made as testified to by the defendant Sing, to the effect that he would be turned loose if he made a statement. The lower court had a right to reject the statement of Sing, which it no doubt did--at least, we must presume that it did. This leaves for our consideration whether the statement of the officers, under the facts and circumstances surrounding the making of the confession--that it would be better for the defendant to tell the truth--was such as to justify this court in saying that the confession was involuntary.
In the case of State v. Dye, 36 Nev. 143, 133 P. 935, it was held that the statement by the officer to the defendant, "If you tell the truth, it will be a whole lot better for you," under all the facts and circumstances of the case, was sufficient to warrant the conclusion that the confession was not voluntary. But it appears from the statement of the facts of that case that there were other elements entering into consideration which materially influenced the court in holding that the confession was involuntary. It appears that the defendant was considered as a tool of others, and that he was made to believe that he was so considered by the prosecuting witness and the sheriff, who said to him:
The foregoing is but part of the facts of that case going to show that there was influence brought to bear upon the defendant to justify the court in holding the confession involuntary. There is no such situation in this case. The testimony on the part of the state showed that on the evening of August 29th the defendant, who was in the city jail at Reno, was taken into the presence of Chief of Police Kirkley, Deputy Sheriff Hamill of Mineral county, and Officer Dean. Chief Kirkley stated to him that he wanted to talk with him, and told him that anything he might say could be used against him in court; that it would be best for him to tell the truth. He then asked him, "How did you come to get mixed up in this?" to which he replied, "Oh, I have been drinking." The testimony on the part of the state is also to the effect that no threats of violence or promises of immunity were offered, and that the defendant seemed perfectly composed and calm. Thus it appears that the defendant had notice that anything he might say could be used against him in court. It was a warning to him. He knew from this statement that he could expect no immunity. Then, does the mere statement that it would be better for him to tell the truth necessitate a conclusion that the confession was involuntary?
The basis of the rule assigned for the exclusion of confessions made as the result of promises or threats is the unreliable character of confessions made under such influences. The rule rests entirely upon the theory that confessions given under such influences are improbable. Counsel say that it is based upon the theory that a person charged with a crime shall not be compelled to be a witness against himself. Whether a witness who makes a confession can be said to be a witness against himself turns upon the proposition as to whether or not the confession is voluntary. In Huffman v. State, 130 Ala. 89, 30 So. 394, it was said:
"It does not render a confession inadmissible, to charge a defendant with crime before he confesses it, nor to tell him it will be better for him to tell the truth, if he is guilty [citing authorities]."
It was held in Hintz v. State, 125 Wis. 405, 104 N.W. 110, that a judgment would not be reversed where a confession was admitted upon the representation to the defendant:
The Criminal Court of Appeals of Texas, in Anderson v. State, 54 S.W. 581, held that the statement to a defendant "that it might be better for her to tell the truth about it" did not warrant a reversal of conviction.
In State v. Brown, 2 Boyce (25 Del.) 405, 80 A. 146, it was held that a confession should not be excluded merely because the defendant was told:
"Tell us the truth; it will be better for you."
In Lucasey v. United States, Fed. Cas. No. 8,588a, it was held that a confession was admissible in which the defendant was told that "it would be better for him to tell the truth."
The Court of Appeals of Georgia, in Wilson v. State, 19 Ga.App. 759, 92 S.E. 309, held that a statement to the defendant that "it would be better for him to tell the truth about the case" would not justify the exclusion of a confession.
In State v. Meekins, 41 La. Ann. 543, 6 So. 822, it was held that the fact that the sheriff told the defendant "he had better tell the truth" would not justify the exclusion of the confession.
In State v. General Armstrong, 167 Mo. 257, 66 S.W. 961, it was said:
"It is the settled law of this state that a mere adjuration to speak the truth does not vitiate a confession."
In State v. Allison, 24 S.D. 622, 124 N.W. 747, it was held that the statement by the sheriff to the...
To continue reading
Request your trial
- State v. Tharp
-
State v. Tharp
...if guilty and if not guilty to stand firm." [See, also, 18 L.R.A. (N.S.) 816, note; 50 L.R.A. (N.S.) 1086, note; State v. Jon, 46 Nev. 418, 211 Pac. 676, 30 A.L.R. 1443, 1446.] The real question is whether the language used in regard to speaking the truth, taken in connection with all the a......
-
State v. Linn
...if guilty and if not guilty to stand firm.' [See, also, 18 L.R.A. (N.S.) 816, note; 50 L.R.A. (N.S.) 1086, note; State v. Jon, 46 Nev. 418, 211 Pac. 676, 30 A.L.R. 1443, 1446.] "The real question is whether the language used in regard to speaking the truth, taken in connection with all the ......
-
In re Lucas Candido for a Writ Corpus
...7 N. Y. S. 145;People v. Durston, 119 N. Y. 569, 576;People v. Kemmler, 119 N. Y. 580, 586, and In re Kemmler, 136 U. S. 436; and State v. Jon, 46 Nev. 418. Nor does it import rarity of legal authorization or of use. If it did, vasectomy, electrocution and execution by lethal gas, at a time......