State v. Vey

• Decision Date: 07 January 1908
• Citation: 114 N.W. 719,21 S.D. 612
• Parties: STATE v. VEY.
• Court: South Dakota Supreme Court

114 N.W. 719

21 S.D. 612

STATE v. VEY.

Supreme Court of South Dakota

January 7, 1908

Error to Circuit Court, Davison County.

Herman Edward Vey was convicted of murder, and he brings error. Affirmed.

Fuller P. J., dissenting.

Simons & Bradford and Preston & Hannett, for plaintiff in error.

S. W Clark, Atty. Gen., and T. J. Spangler, State's Atty., for the State.

HANEY J.

Having been convicted of murder and sentenced to imprisonment for life, defendant brought the record of such conviction to this court for review by writ of error.

It was charged that the defendant killed an unknown man in the city of Mitchell on July 16, 1906, either with a premeditated design to effect the death of the person killed, or without such design while committing the crime of robbery. The state was permitted, after having introduced evidence strongly tending to establish the commission of the alleged crime, and tending, in some degree, to connect the defendant with its commission, to show an oral confession made by the defendant in the presence of the sheriff and state's attorney. Before considering the competency of this confession, a matter of procedure deserves passing notice. Unless it is unavoidable, testimony relating to an alleged confession should never be heard by the jury before its admissibility has been determined. Of course, if the alleged confession be found to be admissible, failure to exclude the jury during the preliminary inquiry touching its competency will not be reversible error, as the circumstances leading up to and attending a competent confession are to be considered by the jury in determining its weight as evidence. If, however after such inquiry has proceeded with the jury present, the alleged confession be found to be inadmissible, it is extremely doubtful whether the effect of the preliminary inquiry can ever be so far removed from the minds of the jurors as to insure a fair and impartial trial. It is therefore in the interest of the state rather than of the defendant that the preliminary inquiry should proceed in the absence of the jury, and the court should so direct whether requested or not by either party.

Timely and proper objections were interposed when the confession was offered, but no motion was made to have it stricken out or withdrawn from the jury. Its competency, therefore, depends on the evidence as it stood when the confession was received. As to its competency and the confession itself, the sheriff testified substantially as follows: "Q. You may state Mr. Cook, whether in that talk you had with him any reference was made to this alleged crime? A. Yes, sir. Q. Now, I will ask you, Mr. Cook, whether that talk was voluntarily made by the defendant? A. It was. The Court: You can cross-examine him. By Mr. Simons: At the time this conversation was had I did not say to Mr. Vey that I would do my part in taking care of him if he would make such statement. I did not say to him at that time that I would do all I could for him. I did not say that I would do what I could to make his sentence light if he made a confession. I did not at that time tell Mr. Vey that it would be easier for him if he confessed. I did not at that time make any statement to Mr. Vey in which I said I would do what I could to help him if he made such statement. By the Court: Q. You may state whether you made any promise or any threat to the defendant regarding these statements? A. No, sir. Q. Held out any inducement to him? A. No, sir. By Mr. Spangler: Q. Mr. Cook, where and when was this statement made? A. He sent for me to come down to the jail, that he was nearly crazy, that he couldn't stand it any longer. I went down in the jail and he said: 'I want to tell you-' He says: 'I want to tell you everything. I can't stand it much longer.' 'Well,' I said, 'all right. I will send for Mr. Spangler, and you can make your statement to him if you want to.' He said, 'All right.' I telephoned for Mr. Spangler, and he couldn't come over then. This was in the morning. He said he would be over in the afternoon, and he came over and I brought Mr. Vey up in the office. Q. State just what Mr. Vey said when he got up in the office. A. He says: 'I want to tell you all of this. I can't stand it any longer. I shot that man. I am a poor innocent boy, and I want you to keep me from being hung.' He made that statement once or twice right there in the office before Mr. Spangler and myself. He said: 'I shot twice above him, and the third time I said to him, "This is your last chance." I fired, and he dropped.' He said, 'Mr. Spangler, help me what you can. It will break my poor mother's heart'; and some other conversation. I don't just remember now. I said to him, 'Then you shot this man?' And he said, 'Yes, I shot him.' I says to him, 'Is that the gun you shot him with?' He said, 'It is.' Perhaps there was something else said there, but I can't remember it just now, unless you can call to my mind some facts. Q. Do you remember of his being asked why he shot him? A. Why; he said he was sore at him because he had got the money from the other fellow. He said, 'I am sorry that I did it."' Nothing was disclosed by this evidence to justify the inference that defendant's confession "resulted from anything calculated to induce the fabrication of a false statement concerning his participation in the crime" (State v. Landers, 114 N.W. 717); nothing to justify the conclusion that his statements were not prompted by the spirit of truthfulness; nothing to indicate that he was impelled by any influence other than the consciousness of his own guilt. On the contrary, the language and manner of the accused lead irresistibly to the conclusion that his conduct was not the result of any external influence. The fact that he was in custody charged with the offense confessed was to be considered, but, independently of statutory provisions, that circumstance alone did not render the confession incompetent, if it was, in fact, made voluntarily within the legal meaning of the term. 3 Ency. of Ev. 305. Clearly the court did not err in receiving the confession on the evidence as it stood when the confession was admitted. Subsequently the regular cross-examination of the sheriff disclosed that about one month prior to the making of the confession he had "urged" the defendant "to make a confession," saying to him: "Now, Vey, you had better give this all up. It will be easier for you." Certainly no one will seriously contend that a ruling on the admission of evidence can be rendered erroneous by testimony not elicited...