State v. Parsons

• Decision Date: 25 March 1930
• Docket Number: 6153.
• Citation: 152 S.E. 745,108 W.Va. 705
• Parties: STATE v. PARSONS.
• Court: West Virginia Supreme Court

152 S.E. 745

108 W.Va. 705

STATE v. PARSONS.

No. 6153.

Supreme Court of Appeals of West Virginia.

March 25, 1930

Submitted March 11, 1930.

Syllabus by the Court.

When the representations of one in authority are calculated to foment hope or despair in the mind of the accused to any material degree, and a confession ensues, it cannot be deemed voluntary.

Error to Circuit Court, Taylor County.

Palace Parsons was convicted of breaking and entering another's chicken house with intent to steal, and he brings error.

Reversed and new trial awarded.

W. Bruce Talbott and E. Wayne Talbott, both of Philippi, for plaintiff in error.

Howard B. Lee, Atty. Gen., and W. Elliot Nefflen, Asst. Atty. Gen for the State.

HATCHER J.

Palace Parsons, Howard Mayle, and Ted Dalton were jointly charged with breaking and entering a chicken house of another, with intent to steal. Palace was tried separately, found guilty and sentenced to the penitentiary for two years. The conviction was based on circumstantial evidence and a confession of guilt by defendant.

The indictment has three counts. The defendant made a general motion to quash. The second and third counts do not contain the names of any of the accused, and are consequently invalid. The first count does not fix the date of the crime; but, as time is not of the essence of the offense, that omission is of no consequence under Code, c. 158, § 10. The first count charges that the chicken house was "burglariously" entered. That word may be omitted as surplusage, and the remainder of the count is sufficient under Code, c. 145,§ 13. As the first count is valid, the motion was properly overruled.

The statement of the law governing the admissibility of a confession, in 3 Russel on Crimes (5th Ed.) 478, has been preferred by many courts, and is as follows: "But a confession, in order to be admissible, must be free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. *** A confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted." Page 2157 (7th Ed.).

After quoting the above from Russel, the Supreme Court of the United States said, in Bram v. U. S., 168 U.S. 532, 543, 18 S.Ct. 183, 187, 42 L.Ed. 568: "And this summary of the law is in harmony with the doctrine as expressed by other writers, although the form in which they couch its statement may be different. 1 Greenl. Ev. (15th Ed.) § 219; Whart. Cr. Ev. (9th Ed.) § 631; 2 Tayl. Ev. (9th Ed.) § 872; 1 Bish. New Cr. Proc. § 1217, par. 4. These writers but express the result of a multitude of American and English cases. *** The statement of the rule is also in entire accord with the decisions of this court on this subject. Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262; Sparf v. U. S., 156 U.S. 51, 55, 15 S.Ct. 273, 39 L.Ed. 343; Pierce v. U. S., 160 U.S. 355, 16 S.Ct. 321, 40 L.Ed. 454; and Wilson v. U.S., 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090."

The defendant says that he is not guilty, and that he so informed the officers; that Mr. Bolyard (a deputy sheriff) said to him: "We have all the evidence we want against you, if you don't own to it, the judge will give you ten years in the pen, if you do own to it maybe we will get you off at the reform school for seven or eight months"; and that he signed the statement (confession) because of the representations of Mr. Bolyard. The officer denies this conversation with defendant, and says that no threat or promise was used in obtaining the confession. Under cross-examination the officer does make the following admissions: "I remember telling him (the defendant) we would find it out about him taking the chickens from the evidence we had. *** I said we have enough, we are going to clear it up, we know who done it. *** I believe I asked him how old he was. I told him he might be able to get into the reform school." The officer also admits that he had three separate conversations with Palace, at one of which he was asked if he did not want to make a statement (confession).

The defendant was an ignorant boy of sixteen years. He could not even write his own name, signing the confession by mark. Age education, and experience are elements to be considered in determining whether the remarks of the officer influenced the accused. Underhill on Crim. Ev. (2d Ed.), § 128. It is reasonable that the effect of Bolyard's admitted statements was to impress upon the untutored mind of the defendant that the...