State v. Lord

• Decision Date: 08 October 1938
• Docket Number: No. 4350.,4350.
• Citation: 84 P.2d 80,42 N.M. 638
• Parties: STATEv.LORD et al.
• Court: New Mexico Supreme Court

42 N.M. 638

84 P.2d 80

STATE

v.LORD et al.

No. 4350.

Supreme Court of New Mexico.

Oct. 8, 1938.Rehearing Denied Nov. 25, 1938.

Appeal from District Court, Dona Ana County; Numa C. Frenger, Judge.

Delbert Lord was convicted of first–degree murder, and Walter Smith was convicted of second–degree murder, and they appeal.

Affirmed.

Under statute abrogating distinction between an accessory before the fact and a principal and between principals in the first and second degree in cases of felony and providing that all persons concerned in the commission of a felony, whether they directly commit the act or aid and abet in its commission, though not present, must be prosecuted as principals, instruction that two or more of four defendants, jointly charged with murder could be found guilty of murder in the first degree and another or others could be found guilty of murder in the second degree was not error as against contention that defendants, if guilty at all, were guilty of the same crime. Laws 1925, c. 145.

R. C. Garland, of Las Cruces, for appellant Lord.

J. B. Newell, of Las Cruces, for appellant Smith.Frank H. Patton, Atty. Gen., and A. M. Fernandez, Asst. Atty. Gen., for the State.

BRICE, Justice.

The appellants, with George Alfred Lord and Emmett Powell, were jointly indicted and tried for the murder of Robert Aubuchon. A verdict of murder in the first degree was returned against Delbert Lord, second degree against George Alfred Lord and Walter Smith, and acquittal in favor of Emmett Powell.

[1] It was within the sound discretion of the trial court to grant or refuse a severance; and unless it is shown that this discretion was abused his action in overruling appellant Smith's motion for a severance will not be disturbed. State v. McDaniels, 27 N.M. 59, 196 P. 177; Ballard v. Commonwealth, 156 Va. 980, 159 S.E. 222.

[2] All of the defendants, excepting Powell, signed written confessions, or admissions from which guilt could be inferred. Appellant Smith claims that because the confession of George Alfred Lord contained highly prejudicial, and damaging statements relative to Smith's participation in the crime charged, which would be introduced in evidence, that it was an abuse of discretion to deny him a severance. But in view of the court's instruction not to consider as against Smith anything contained in Lord's statement, it was not an abuse of discretion to deny a severance.

The district court, in the absence of the jury, heard the testimony of both appellants and the state regarding the making of the confessions and came to the conclusion that they were voluntarily made, and thereafter admitted such confessions in evidence; but instructed the jury with reference to the statement made by each of the three defendants; that if such statement, by reason of threats, duress, coercion, fear, hope or promise of reward or immunity, was not voluntarily made, that it should not be considered as evidence by the jury in arriving at a verdict.

The evidence submitted to the district court in the absence of the jury on the question of whether the confession of Lord was voluntary, discloses that after the appellants were arrested, district attorney Threet, who represented the State in their prosecution, together with six peace officers, went to the jail to interrogate them for the purpose of securing confessions. After three hours of questioning a written confession was obtained from Lord and signed by him.

At this preliminary hearing to determine whether the confessions were voluntary several peace officers were presented as state witnesses, and each was asked:

Q. “Now, before the defendant, Delbert Lord, made any statement in connection with the case, did you or anyone in your presence offer him any acts of violence, threats or coercion of any kind or character whatsoever to induce him to make any statement in connection with the case?”

Q. “And before any statement was made by the defendant, Delbert Lord, did you or anyone in your presence, hold out to the defendant, Delbert Lord, any hope or promise of immunity or reward to induce him to make any statement?”

Each witness answered both questions in the negative.

[3] The proof elicited by these questions was in the nature of the conclusions at which the court must have arrived before he was warranted in admitting the confession in evidence. These negative facts could not be satisfactorily proved in this way if coercive methods were used to cause the defendants to confess the commission of the crime; though in the absence of any attempt at coercion, whether by punishment, threats, promises, or other means, no other questions could elicit the proof of the negative fact. The State therefore made a prima facie case for the admission of the confession in evidence. State v. Holden, 42 Minn. 350, 44 N.W. 123; People v. Goldenson, 76 Cal. 328, 19 P. 161; Crain v. State, 166 Ala. 1, 52 So. 31; People v. Leavitt et al., 127 Cal.App. 394, 15 P.2d 894. Though there are authorities which hold that such conclusions are not admissible to prove that a confession is voluntary; that the proper method is for the State's witnesses to testify regarding the circumstances and means by which the confession was secured; that it is the court, and not the witness, who determines if a confession is voluntary. Bates v. State, 78 Fla. 672, 84 So. 373.

After the examination of the State's witnesses at the hearing on this preliminary matter, the appellant Lord testified in his own behalf, in substance, that district attorney Threet stated to him that “the other boys” had made a confession and left Lord as the “trigger–man;” that if he did not “come clean everything would be laid on you” and “if you come clean you will get off easier in court. They said if I would come through they would let me off easy, *** that meant I would miss the chair.”

“Q. Who told you that? (Dist. Atty. Threet to appellant Lord) A. You did.

“Q. Why did I say I would let you off easy? A. You said the other boys made a statement and laid everything on to me as the trigger–man. If I come through I would get off easy in court.

“Q. And knowing at the time you signed you were going to the electric chair? A. You said I would get off easier in court, that meant I missed the chair.

******

“A. Jack Robinson said ‘Are you afraid of the electric chair, are you yellow? I did not think boys where you came from were yellow.’

“Q. What effect did this statement have upon you with reference to making the statement you have signed? A. Well, it made me afraid when they fetched up the electric chair.

“Q. Did that induce you to make this statement? A. Yes.

“Q. Was this statement voluntary on your part? A. No.”

He testified that he was seventeen years old when he made this statement and could not read or write and had never been to school.

[4] The State's witnesses were not cross–examined regarding the means or method of persuasion (if any) that was used by district attorney Threet and the six officers present at Lord's examination to elicit his confession. When the matter was presented to the jury on substantially the same testimony, one of the officers (Sheriff Viramontes of Dona Ana County) on cross examination, in some respects corroborated Lord's testimony, though probably not on vital points. State v. Wickman, 39 N.M. 198, 43 P.2d 933. The officer's memory failed him; and he took refuge in “I don't remember;” “I didn't hear that,” or “I would rather not say.” But at that time the question had become one for the jury to decide, though it was not too late to withdraw it from the consideration of the jury in the exercise of the court's discretion. State v. Jordan, 146 Or. 504, 26 P.2d 558, 30 P.2d 751.

[5][6] A confession made by a person accused of crime, induced by the promise held out to him by a person in authority, that if he would confess, his punishment would not be so severe as it otherwise would be, is not admissible in evidence because not voluntary. District attorneys are “persons in authority” within the meaning of the rule. State v. Foster, 25 N.M. 361, 183 P. 397, 7 A.L.R. 417; and annotation in 7 A.L.R. beginning at page 419. We stated in the Foster Case, 183 P. 398: “There is no more convincing evidence to the ordinary man than a confession of guilt, and where a confession is admitted, under an instruction to the jury to determine whether it is voluntary, or involuntary, and to consider it in the former case, or in the latter case to reject it, the probabilities are, unless the confession was extorted under circumstances calculated to arouse sympathy for the defendant, that the average jury will consume but little time in determining the question of whether the confession was voluntary or involuntary, but will in the great majority of cases say the prisoner has confessed, and therefore is guilty beyond a reasonable doubt.”

[7][8][9] The rules upon which involuntary confessions are excluded from testimony, as held by this court, are stated as follows:

“*** The two leading principles of exclusion applicable to confessions were fully and thoroughly discussed in Territory v. Emilio, 14 N.M. 147, 89 P. 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 [U.S.C.A.Const. amend. 5] which provides that ‘no person shall be compelled in any criminal case to be 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...