State v. Turner

• Decision Date: 11 June 1910
• Docket Number: 16,891
• Citation: 82 Kan. 787,109 P. 654
• Parties: THE STATE OF KANSAS, Appellee, v. ORA TURNER, Appellant
• Court: Kansas Supreme Court

109 P. 654

82 Kan. 787

THE STATE OF KANSAS, Appellee, v. ORA TURNER, Appellant

No. 16,891

Supreme Court of Kansas

June 11, 1910

Decided January, 1910.

Appeal from Rice district court; JERMAIN W. BRINCKERHOFF, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

CRIMINAL LAW--Evidence Procured by Intimidation--Involuntary Confessions--Self-incriminating Testimony. At a trial on the charge of murder, neither the rule excluding proof of an involuntary confession nor that relating to self-incrimination forbids evidence that the defendant produced from a hiding place a revolver similar to that with which the homicide was known to have been committed, although such production was brought about by intimidation.

D. A Banta, and W. W. Stahl, for the appellant.

Fred P. Green, county attorney, for the appellee; Samuel Jones, and Foley & Hopkins, of counsel.

OPINION

MASON, J.:

Ora Turner was convicted of murder in the first degree and appeals. The questions presented are whether error was committed in the refusal of instructions and in the admission of evidence. The court gave one instruction regarding the effect of circumstantial evidence in the exact language of the second paragraph of the syllabus in Carl Horne v. The State of Kansas, 1 Kan. 42, and another substantially following what was said in The State v. Furney, 41 Kan. 115, 122, 21 P. 213, to be the correct rule. The instructions refused were practically but elaborations of the principles embodied in those given, and their refusal can not be regarded as material error.

The body of Roy Snyder, with whose murder the defendant was charged, was found on the highway, his death having resulted from several bullet wounds. Circumstances tended to indicate Turner as the murderer, and jealousy as the motive. Two bullets were recovered. They weighed substantially 149 grains each, and showed that they had been discharged from a barrel rifled with six grooves. Persons familiar with the subject said that the only firearm that would mark a bullet of that weight in such a manner was what is known as a Colt's 38-caliber "Police Positive" revolver, and an investigation was begun to learn whether a weapon of that description was owned in the neighborhood. It was learned that one had been bartered, about two weeks before the homicide, to Turner's cousin, who upon inquiry said that he in turn had traded it to the defendant. The sheriff and several other persons then went to the defendant and asked about the revolver he had obtained from his cousin. He at first denied any knowledge of it, but upon being pressed finally procured a pitchfork, and, leading the party into a grove where it had been buried, dug it up and gave it to the sheriff. The state was permitted to show the fact of finding the revolver and a part of what the defendant had said in the conversation leading up to it. The admission of this evidence is complained of on the ground that it violated the rule against the use of involuntary confessions, and virtually compelled the defendant to be a witness against himself.

In stating the case to the jury one of the attorneys for the prosecution told them that the testimony would show that he had said to the defendant, before the revolver was produced: "I want you to get that gun, and if you don't do it we will have two hundred men here to search every inch of the ground, and you know when we find it what will happen, and no man can stop it." No evidence was offered that such language was in fact used, but the state must be regarded as admitting that the production of the revolver and anything said about it by the defendant after his talk with this attorney resulted from fear on his part.

The only evidence that was introduced, however, of any statements made by the defendant about this matter related to conversations that took place before any threat had been made. Moreover, there was no error in its introduction for another reason. The statements attributed to the defendant were not of the nature of admissions; they consisted of denials of any knowledge of the revolver; they were exculpatory rather than incriminating, and were not within the rule applicable to confessions. (The State v. Campbell, 73 Kan. 688, 85 P. 784; I Wig. Ev. § 821.) One witness testified that at one time the defendant said he knew where the revolver was, but that he immediately retracted the statement.

The contention that evidence of the production of the revolver from its hiding place by the defendant should. have been rejected is more serious, but the authorities support the contrary view with substantial unanimity. Some of them go so far as to justify the admission of an extorted confession, so far as it is corroborated by indisputable facts which it discloses. The only substantial difference of opinion relates to the admissibility of the confession itself. The narrow scope of the conflict and the reasoning upon which the courts have proceeded are exhibited by the following typical expressions:

"Where an involuntary confession discloses incriminating evidence which is subsequently on investigation proved to be true, or where the confession leads to the discovery of facts which in themselves are incriminating, so much of the confession as discloses the incriminating evidence and relates directly thereto is admissible. And the facts discovered in consequence of such involuntary confession may be proved. Thus in a prosecution for murder evidence of the discovery in a certain place of the remains or clothing of the deceased or of the weapon by which he was killed, with so much of an involuntary confession as relates directly to such facts, is admissible." (12 Cyc. 478.)

"A modification of the rule which excludes a confession not shown to be voluntary exists where the information derived in consequence of a confession leads to the discovery of material facts which go to prove the commission of the crime confessed. In that case, so much of the confession as strictly relates to the facts discovered and the facts themselves will be received in testimony, though the confession may be shown to be involuntary, for the reason that the discovery of the facts corroborates the truth of the confession to that extent and excludes the idea of its fabrication under undue influence, though in some jurisdictions it seems that in such case the entire confession is admissible." (6 A. & E. Encycl. of L. 551.)

"If the confession, being inadmissible because improperly procured, brings to light facts or circumstances tending to show guilt, the prosecution is not precluded from proving the facts thus disclosed by other evidence, because they were brought to light by a confession which is itself incompetent. Some cases have gone further and held that not only may the fact disclosed be proved, but that portion of the confession disclosing it. But other cases hold that while the facts may be proved the declaration accompanying it must be excluded." (3 Enc. of Ev. p. 341.)

"The main reason for rejecting confessions uttered under the influence of hope or fear is the great probability that the prisoner has been influenced by his expectation of punishment, or of immunity, to speak what is not true. If, however, the existence of extraneous facts is discovered through the statements of the accused, no reason exists for rejecting those parts of the confession which led to the discovery, and which, though not voluntarily made, have been corroborated convincingly by the facts discovered." (Underhill, Crim. Ev. § 138.)

"The object of all the care which, as we have now seen, is taken to exclude confessions which were not voluntary, is to exclude testimony not probably true. But where, in...