Thompson v. Commonwealth
| Decision Date | 05 December 1870 |
| Citation | 61 Va. 724 |
| Parties | THOMPSON v. THE COMMONWEALTH. |
| Court | Virginia Supreme Court |
Joynes, J., absent, sick.
1. Every count in an indictment must conclude " against the peace and dignity of the Commonwealth; " or the count which omits it is fatally defective.
2. The only proper endorsement on an indictment is " a true bill," or " not a true bill," with the name of the foreman; and anything else is not a part of the finding of the grand jury.
3. The record of the finding of the grand jury, saying, in commission of rape, which was on the indictment, is mere surplusage.
4. That a confession of a prisoner tried for murder is voluntary, is a condition precedent of its admissibility; and the court must be satisfied that the confession was voluntary, before it can be permitted to go to the jury; the burden of proof that it was voluntary is on the Commonwealth.
5. Though a confession may be inadmissible because not voluntary, it may become admissible by being subsequently repeated by the accused when his mind is perfectly free from the undue influence which induced the original confession. Prima facie, the undue influence will be considered as continuing; though the presumption may be repelled by evidence; which, however, must be strong and clear.
At the quarterly term of the County court of Goochland county Willis Thompson, a colored boy, was indicted for the murder of Alice Brown, a colored girl. The indictment contains two counts. In the first count the prisoner is charged with having made an assault on Alice Brown, and feloniously to have ravished her, and that then and there, in the commission of the rape aforesaid, murdered her by choking her and thrusting dirt, & c., into her nose, mouth and throat. But the count omits the conclusion " against the peace and dignity of the Commonwealth."
The second count charges the murder by the same means, except that it does not charge that it was done in the commission of a rape. This count concludes against the peace and dignity of the Commonwealth. The endorsement on the indictment is, An indictment against Willis Thompson, for murder in commission of rape. True bill. James W. Goodman, foreman of the grand jury.
When the prisoner was arraigned he elected to be tried in the Circuit court; and when the cause was called in that court he demurred to the indictment and each count thereof; but the demurrer was overruled: and he then pleaded not guilty. On the trial the jury found a general verdict of guilty of murder in the first degree, and the court sentenced the prisoner to be hung.
In the progress of the trial, the prisoner, by his counsel, took two exceptions to the rulings of the court, on the admissibility of his confessions; and after the verdict he moved in arrest of judgment, which motion the court overruled, and the prisoner excepted.
From the first exception, it appears that the attorney for the Commonwealth introduced a witness, by whom he proposed to prove certain confessions of the prisoner. Whereupon, the prisoner, by his counsel, objected to the introduction of the said confession as evidence in the cause, unless it was first shown affirmatively by the prosecution, to the satisfaction of the court, that said confession had been made freely and voluntarily, and without any improper inducements, either of promises or threats, or other improper means. But the court overruled the objection, and decided to admit said confessions to go to the jury, unless the prisoner could show, by proper testimony, that the said confessions had been obtained from him contrary to the rules of law in such case made and provided; being of opinion that when confessions are offered in evidence the law presumes they are voluntary and free from exception; and that if the prisoner desires to exclude them, the onus is upon him to show that they have been obtained from him by improper inducements, and not upon the Commonwealth to show affirmatively that they were free and voluntary. To which opinion of the court the prisoner excepted. But before the confession was admitted evidence was introduced which satisfied the court that the first confession made was made under a fear of being hanged by the mob of excited negroes who surrounded him; and that confession was excluded.
After the first confession was excluded, the attorney for the Commonwealth proposed to give in evidence a confession made at a subsequent time; to which the prisoner, by his counsel objected, unless the Commonwealth first showed clearly that the influence exerted on the mind of the prisoner, by the previous threats and the circumstances surrounding the prisoner, had been removed; that the presumption of law was, that those influences continued to exist on the mind of the prisoner, and induced all subsequent confessions.
The facts as to this second confession having been proved, the prisoner, by his counsel, moved the court to exclude this confession, on the ground that, to say the least, it was doubtful whether the influences brought to bear on the mind of the prisoner, by the threats made against him when the first confession was made, and the circumstances which surrounded him, had been removed; but the court overruled the objection and permitted the confession to go to the jury. As this court did not express any opinion upon the sufficiency of the evidence to authorize the admission of the confession, it is unnecessary to state it.
The motion to arrest the judgment was on the grounds--
1st. That it was uncertain whether the verdict was a general one, applying to both counts, or only on one; and if on one only, which?
2d. If the verdict was on the first count, it should be arrested because the demurrer to that count should have been sustained, for the want of the constitutional conclusion.
3d. If the verdict was on the second count it was a nullity, because the endorsement on the indictment shows that the grand jury only acted on the first count.
4th. If there was no finding of the grand jury on the second count, it should have been stricken out on the demurrer to it.
5th. That the evidence required to convict the prisoner, on the first count, of murder in the first degree, is different from the evidence which was required to convict him of that crime on the second count. The proof of an attempt to commit a rape, the homicide being proved, would have been sufficient on the first count; on the second, willful and premeditated killing would have been necessary.
Upon the application of the prisoner, a writ of error was allowed him to this court.
Tutwiler, for the prisoner, insisted--
1st. It was error to overrule the demurrer to the first count in the indictment. That count omitted the constitutional conclusion " against the peace and dignity of the Commonwealth." Each count of an indictment must be perfect in itself; and the omission of the conclusion against the peace and dignity of the Commonwealth is fatal. Carney's case, 4 Gratt. 546.
2d. The demurrer should have been sustained to the first count, because it charges both rape and murder.
3d. The court below erred in...
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