State v. Mason

• Decision Date: 18 December 1895
• Citation: 4 Idaho 543,43 P. 63
• Parties: STATE v. MASON
• Court: Idaho Supreme Court

43 P. 63

4 Idaho 543

STATE v. MASON

Supreme Court of Idaho

December 18, 1895

ARSON-CONFESSION EXTORTED BY THREATS.-A confession, so called, which the record shows was extorted from the defendant by threats and menaces, and which does not connect the defendant with the alleged crime should not be permitted in evidence.

(Syllabus by the court.)

APPEAL from District Court, Fremont County.

Judgment reversed and defendant ordered discharged.

Evans &amp Rogers, for Appellant (Quarles & Averitt, of Counsel).

The only evidence offered and claimed by the prosecution to prove a conspiracy is contained in plaintiff's exhibit "C." How any fair-minded person can claim this to be a conspiracy is more than we can comprehend. A careful perusal thereof shows that the defendant was approached by Hammon with a proposition to fire the place, but that he refused to have anything to do with it. Also that Hammon was the one who fired it, and that this defendant assisted in no way in committing the act complained of. The acts of the defendant do not constitute even evidence of guilt. (3 Greenleaf on Evidence, 15th ed., 89; 2 Bishop's New Criminal Law, 171-175; Wharton's Criminal Evidence, 440; Hicks v. United States, 150, U.S. 442, 14 S.Ct. 144; State v. Carson, 36 S.C. 524, 15 S.E. 588; Searles v. State, 6 Ohio Ct. Rep. 331; S. C., Am Dig. 1892, p. 1267; People v. Woodward, 45 Cal. 293 13 Am. Rep. 176, and note; People v. Ah Ping, 27 Cal. 490; State v. Connaughty, 1 Wis. 159; State v. Farr, 33 Iowa 553; Elizando v. State (Tex. ), 20 S.W. 560; State v. Martin, 25 Ga. 494.) The court erred in admitting in evidence plaintiff's exhibit "C" which was the purported confession of the defendant. It was no confession of his guilt, but only confessed or declared that J. M. Hammon set fire to the place, and expressly negatives the idea that the defendant had anything whatever to do with the same. Our contention upon this point is that from the uncontradicted evidence in the case at least one of the objections made against the acceptation of the statement in evidence is well taken, and that is that the confession was induced by promises and hope of reward, and by means of undue influence and while the defendant was under duress. (2 Russell on Crimes, 5th Am. ed., 824-829; 1 Greenleaf on Evidence, 220, and cases cited; Abbott's Trial Brief (Criminal Causes), 496, and cases; Wharton's Criminal Evidence, sec. 651; 3 Am. & Eng. Ency. of Law, 449 et seq.; State v. Phelps, 11 Vt. 116, 34 Am. Dec. 672; State v. Newman, 49 Ala. 9, S. C., 1 Am. Crim. Rep. 173; People v. Phillips, 42 N.Y. 200; People v. Flagg, 40 Mich. 706, S. C., 3 Am. Crim. Rep. 70.)

Attorney General George M. Parsons, for the State.

The existence of a conspiracy had at least been shown prima facie. The confession of defendant shows conclusively that he aided and assisted Hammon in his nefarious work. Dr. Wharton says relative to the acts of co-conspirators: "The least degree of collusion is sufficient to make the act of one the act of all." (2 Wharton on Evidence, sec. 1205; State v. Anderson, 92 N. C., 747; 3 Wharton's American Criminal Law, secs. 2353-2355.) It is nowhere contended by the state that the paper offered in evidence was a confession, although we contend that the statement in question, taken in connection with other evidence, tended to establish guilt, and was therefore admissible. A confession, technically, "is a person's declaration of his agency or participation in a crime. The term is restricted to acknowledgments of guilt." (People v. Velerde, 59 Cal. 457; People v. Strong, 30 Cal. 151.) In order to make a confession inadmissible because of inducements or threats, such inducements or threats must be held out or made "by one in authority," and to be one in authority one must be an officer of the law. (1 Wharton's Criminal Evidence, secs. 650, 651; 1 Wharton's American Criminal Law, 692; Rex v. Slecman, 6 Cox C. C. 245; United States v. Stone, 8 F. 252-254; Ullrich v. People, 39 Mich. 245, 250; State v. Patterson, 73 Mo. 695-706; Beggerly v. State, 8 Baxt. 520; State v. Carrick, 16 Nev. 120-130.) McCarthy, the so-called detective, was not a person in authority in such respect as to make the statement under the circumstances inadmissible as a confession. (Regina v. Moore, 5 Cox C. C. 555, 558; Regina v. Reason, 12 Cox C. C. 228, 229.) Relative to the voluntary character of a confession, the following is the established rule: "The presumption is that confessions have been freely made, until the contrary appears." (2 Russell on Crimes, p. 89, side p. 870; People v. Barker, 60 Mich. 277, 1 Am. St. Rep. 501, and note, 27 N.W. 539-545; Commonwealth v. Culver, 126 Mass. 464, 465.)

HUSTON, J. Morgan, C. J., and Sullivan, J., concur.

OPINION

HUSTON, J.

The defendant was indicted, jointly with one J. W. Hammon, for the crime of arson, in the burning of certain buildings, and other property, belonging to said Hammon. On arraignment separate trials were given the defendants. Hammon was tried and acquitted. On the trial of Mason, the following writing, which the evidence clearly shows was extorted from him by one McCarty, a detective in the employ of the Continental Insurance Company (which institution had a policy of insurance on the property burned), was offered in evidence, and received by the court, in words and figures as follows, to wit: "Interrogatories by Thomas McCarty, in the presence of Sheriff J. B. Cutshaw, and Deputy Sheriff W. W. Green: Q. What is your name and age? A. Charles Mason; age, twenty-one years. Q. Where do you reside? A. Hooper, Utah. Q. How long have you been living with J. M. Hammon? A. about six years. Q. How long were you living with him prior to the fire, November 25, 1893? A. About three months. Q. Do you know, of your own knowledge, how the fire originated which destroyed the Hammon buildings and contents? A. Yes, sir. Q. Go on and state to the gentlemen all you know about it, if you wish. A. About three weeks before the fire, J. M. Hammon came to me and told me about firing it. Q. Tell what he said, and how he said it. A. We were right at home, then, when he said, 'If I could keep a secret, we would make some money.' I asked how we could make money, and he said he could make money by firing the building, and asked me if I would set it on fire. This I refused to do. He said, 'I will fire it myself.' We talked about it several times after that. The day of the fire he told me he would set the fire that night. About 6 o'clock the evening of the fire, Daunt Hammon and myself went over to the house of H. Hammon, stayed there until about 9 o'clock, and returned to Daunt Hammon's house, and about half past ten Daunt Hammon took a coal-oil can, poured the oil on the floor in the kitchen, near the stove, and...