State v. Wells

Decision Date12 March 1909
Docket Number1910
CourtUtah Supreme Court
PartiesTHE STATE OF UTAH, Respondent, v. SETH M. WELLS, Appellant

APPEAL from the First District Court, Cache County.--Hon. W. W Maughan, Judge.

The defendant was convicted of abortion and appealed.

REVERSED.

A. J Weber and E. A. Wallon for appellant.

A. R Barnes, Attorney-General, for the State.

STRAUP, C. J. FRICK and McCARTY, JJ., concur.

OPINION

STRAUP, C. J.

1. The defendant was convicted of the crime of producing an abortion upon the woman named in the information. At the trial the state offered to prove a confession claimed to have been made by the defendant. The state first attempted to show that the alleged confession was made voluntarily. The defendant's counsel asserted that the voluntariness of the confession would be disputed, and requested that such matter in issue be first tried before the court, in the absence of the jury, and objected to its being heard in their presence. The court overruled the objection, denied the request, and received the evidence of both parties on such question in the presence of the jury. The evidence on such matter is very conflicting. On the part of the state it tends to show that the confession was voluntary; on the part of the defense that it was made under threat, coercion, and duress, and was involuntary. After hearing such evidence the court, without passing on the question, then admitted the confession itself in evidence, and at the conclusion of all the evidence in the case submitted the question to the jury, charging them that, unless they were convinced by the evidence beyond a reasonable doubt that the alleged confession was entirely voluntary, and made without threat, coercion, or duress, they should wholly disregard it, and that, though they found the confession was voluntary, still they should disregard it, unless they were convinced from the evidence that the statements or confession made by the defendant referred, and were intended by him to refer, to the specific charge alleged in the information.

While an assignment of error is made that the court erred in admitting the confession in evidence, yet this assignment is not urged; nor is it referred to or discussed by counsel in their brief. The only assignment in respect of the confession of which complaint is made and discussed is that the court erred in hearing the evidence relating to the question of voluntariness of the confession in the presence of the jury. The correctness of the court's ruling involves the further question as to whether the determination of the question of voluntariness was alone within the province of the court, or the court and jury. In some jurisdictions it has been held that the question is alone for the court. Among the courts so holding may be cited: Hunt v. State, 135 Ala. 1, 33 So. 329; Holland v. State, 39 Fla. 178, 22 So. 298; State v. McKenzie, 144 Mo. 40, 45 S.W. 1117; State v. Gorham, 67 Vt. 365, 31 A. 845; State v. Gruff, 68 N.J.L. 287, 53 A. 88; Hauk v. State, 148 Ind. 238, 46 N.E. 127, 47 N.E. 465. Some of the courts so holding also hold that the preliminary matter should be admitted and heard before the court not in the presence of the jury. (Ellis v. State, 65 Miss. 44, 3 So. 188, 7 Am. St. Rep. 634; Biscoe v. State, 67 Md. 6, 8 A. 571.) Others hold that if the confession is admitted in evidence, the hearing of the preliminary matter in the presence of the jury is not prejudicial. (Kirk v. Territory, 10 Okla. 46, 60 P. 797; People v. Kamaunu, 110 Cal. 609, 42 P. 1090). Many if not all, courts holding that the question is for the court also hold that, if the court determines that the confession was voluntary, and admits it in evidence, then the evidence which was heard before the court on the question of voluntariness should be repeated and let to the jury, if the matter was heard in their absence, not for the purpose of themselves determining whether the confession was or was not voluntary, but for the purpose of determining the weight and credit that should be given the evidence of the confession. In many other jurisdictions it has been held that, where the evidence on the question of voluntariness is conflicting, or where the court is in doubt whether the confession was or was not voluntary, the whole matter may be left to the jury under instructions to disregard the confession, unless they find that it was made voluntarily. Among the courts so holding may be cited: State v. Storms, 113 Iowa 385, 85 N.W. 610, 86 Am. St. Rep. 380; People v. Cassidy, 133 N.Y. 612, 30 N.E. 1003; Commonwealth v. Bond, 170 Mass. 41, 48 N.E. 756; State v. Moore, 160 Mo. 443, 61 S.W. 199; Wilson v. United States, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090; Roesel v. State, 62 N.J.L. 216, 41 A. 408; Burdge v. State , 53 Ohio St. 512, 42 N.E. 594; People v. Howes, 81 Mich. 396, 45 N.W. 961; State v. Westcott, 130 Iowa 1, 104 N.W. 341.

The rule, as stated by the Massachusetts court, is as follows:

"The judge finds the fact in the first instance. If he is of opinion that the confession is not voluntary, or that when the declaration was made, the speaker expected to recover, or in general that the preliminary facts were not such as to make the evidence admissible, he rejects it, and that is the end of the matter, unless some question of law is reserved. If he finds the other way, and is of opinion that the evidence is admissible, he admits it, but instructs the jury to disregard it if they do not agree with him." ( Commonwealth v. Bond, supra.)

By the Supreme Court of the United States:

"When there is a conflict of evidence as to whether a confession is or is not voluntary, if the court decides that it is admissible, the question may be left to the jury, with the direction that they should reject the confession if upon the whole evidence they are satisfied it was not the voluntary act of the defendant." ( Wilson v. United States, supra.)

In still other jurisdictions the rule is, and we think correctly, stated as follows:

" If it appear from the testimony of the witness that the alleged confession was not voluntary, it must be excluded, and the court must at once so decide. But if voluntary, the witness can testify to it; and, if subsequently in the course of the trial there be evidence tending to contradict the witness, then the question of credibility is one for the jury, who must be instructed that if not voluntarily made, they must wholly disregard it. . . . While some of the cases from other states, cited by counsel for the prisoner, seem to hold that it is the sole duty of the court to at once decide before hearing the confession, from the conflicting evidence of witnesses, whether the confession was voluntary, the settled practice in this state is otherwise. The prisoner here has the right to examine fully the witness called by the commonwealth to establish the alleged confession. If it then appear that it was not voluntary, it should be rejected without being heard. If it appear to have been voluntary, then it should be received. If afterwards there be testimony contradicting the witness, then it becomes a question for the jury." Commonwealth v. Epps, 193 Pa. 512, 44 A. 570.

This rule is also well stated in the charge of the trial court, which was approved by the appellate court, in the case of Price v. State, 114 Ga. 855, 40 S.E. 1015:

"In determining the question as to whether or not a confession is admissible as evidence in the case, the law puts upon the presiding judge the duty of determining, by a preliminary investigation of the question, whether or not apparently under the evidence, whether preliminarily under the evidence, that confession was made under such circumstances as authorized it to go to the jury, to be considered by them as testimony in the case, and, if the testimony is permitted to go to the jury by the presiding judge as being primarily admissible, the fact that it is permitted to go to the jury by the presiding judge is not conclusive upon the jury that the confession, if one was made, was made under such circumstances as orders and requires the jury to consider the same as evidence in the case; the law leaving to the jury the determination of the question of whether or not the evidence, or the testimony which is offered on the part of the state, of a confession, was in point of fact a confession, and whether or not the same was made under such circumstances as authorize you to consider it."

To the same effect are: Irby v. State, 95 Ga. 467, 20 S.E. 218; Clay v. State, 15 Wyo. 42, 86 P. 17, 544; Hamlin v. State [Tex. Cr. App.], 47 S.W. 656; Rice, Crim. Ev., sec. 308.

We think many of the courts which hold that the question of voluntariness on conflicting evidence is for the jury in effect reached the same conclusion. We are therefore of the opinion that, when evidence of the defendant's confession is offered by the state, it, on the defendant's objection, must first introduce some evidence tending to show that the confession was voluntary; that it is alone within the province of the court to determine, not whether the confession was or was not voluntary, but whether a sufficient prima facie showing, with respect to its voluntariness, is made to warrant a finding that it was voluntary; that, before the court rules upon the question the privilege should be given the defendant, if he requests it, to cross-examine the witness, or witnesses, by whom the state seeks to show the voluntariness of the confession; that when such a showing has been made, and the court determines that it is prima facie sufficient to authorize such a finding, then the court should admit the confession itself in evidence, otherwise not; that when the state has made such prima facie showing, one which...

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