State v. McCullum

• Decision Date: 30 December 1897
• Citation: 51 P. 1044,18 Wash. 394
• Parties: STATE v. MCCULLUM.
• Court: Washington Supreme Court

51 P. 1044

18 Wash. 394

STATE v. MCCULLUM.

Supreme Court of Washington

December 30, 1897

Appeal from superior court, King county; T. J. Humes, Judge.

James McCullum was convicted of burglary, and appeals. Reversed.

John F Dore, Daniel T. Cross, and Hiram J. Jacobs, for appellant.

James F. McElroy and John B. Hart, for the State.

GORDON J.

The appellant and one John Wilson were jointly charged with burglarizing a saloon building in the city of Seattle, and stealing therefrom a quantity of cigars. The appellant having been awarded a separate trial, was found guilty, and sentenced to eight years in the penitentiary, and from the judgment of conviction has appealed to this court. A single error is relied upon for reversal. Upon the trial the chief of police of the city of Seattle, to whose custody the defendants had been committed, was a witness for the prosecution, and, upon his direct examination, testified that Wilson had confessed to him. From his testimony we quote: "I had Wilson brought from his cell to my office, and he told me that, on the day preceding the burglary, McCullum and the other man put up the job, and asked him to participate, and that he (Wilson) consented; that McCullum entered the place through the transom over the front door, and came out the side door (having unlocked the same from the inside), and deposited the cigars stolen where they were found. I sent for McCullum, and asked him what he had to say in relation to the matter, and he denied all knowledge of the transaction. I asked Wilson to repeat his story, which he did, once more, in McCullum's presence." Upon cross-examination, witness testified as follows: "Q. You had McCullum placed in what is known as the 'Dark Cell,' in order to extort a confession? A. I had him placed in a dark cell; yes, sir. Q. That cell is known in police circles as the 'Sweat Box,' is it not? A. I believe so. Q. You kept McCullum in that dark cell for several days, did you not? A. Yes, sir. Q. And either you or one of your officers visited him daily, and asked him if he was ready to confess? A. Yes, sir. Q. If he had made a confession, he would have had better quarters; that is, you would have taken him out of the dark cell? A. Yes, sir. Q. Did you offer Wilson any inducement to confess? A. No. Q. Did you make any threat to him? A. No, sir. Q. You kept him in a dark cell until he confessed? A. Yes, sir. Q. Then he had better quarters? A. Yes, sir. Q. Who was present on the occasion of the confession of Wilson? A Wickham, one of the officers. Q. State to the jury how you brought McCullum in the presence of Wilson when you were to have Wilson confess. A. I sent for McCullum, and, when he was in the presence of Wilson, I said, 'Now, I want you to tell me the truth about this matter,' and he denied all knowledge of the affair. I then made Wilson tell his story, and he did so, and after he finished I then turned to McCullum, and asked him what he had to say to that, and he said there was nothing in it; and I sent him back to the dark cell. Q. Did McCullum voluntarily listen to statement of Wilson? A. No, sir; he was under arrest, and was forced to listen to all Wilson said. Q. Is it not a fact that you had Wilson repeat his confession in the presence of McCullum so as to be able to offer it in court against McCullum when his trial come on? A. Yes, sir. (Motion is now made to strike all of the confession of Wilson from the case, on the ground that same is incompetent. Argument. Motion is denied by the court.)"

The statute of this state has somewhat modified the rule of the common law on the subject of confessions. Section 1308, 2 Hill's Code, is as follows: "The confession of a defendant made under inducement, with all the circumstances may be given as evidence against him, except when made under the influence of fear...