Whip v. State

• Decision Date: 11 October 1926
• Docket Number: 26021
• Citation: Whip v. State, 143 Miss. 757, 109 So. 697 (Miss. 1926)
• Court: Mississippi Supreme Court
• Parties: WHIP v. STATE. [*]

109 So. 697

143 Miss. 757

WHIP v. STATE. ^[*]

No. 26021

Supreme Court of Mississippi

October 11, 1926

APPEAL from circuit court of Humphreys county, HON. S. F. DAVIS Judge.

(In Banc.)

1. CRIMINAL LAW.

Evidence must exclude every reasonable doubt that confession was procured under threat of punishment or promise of reward, and that it was not freely and voluntarily made.

2. CRIMINAL LAW.

Influence of threats or hope of reward under which confession was made must be shown to have been removed before the making of subsequent confession that latter may be admissible.

3. CRIMINAL LAW.

It is duty of no one to extort confession from prisoner, rather he should be warned that any statement may be user against him.

4. CRIMINAL LAW.

Confession by one charged with crime, though to person not an officer if procured by improper influence, is inadmissible.

5. CRIMINAL LAW.

Voluntary confession proceeds from spontaneous operation of party's mind, free from influence of any extraneous cause.

6. CRIMINAL LAW.

Under uncontradicted testimony of defendant, held his confession was incompetent as not proceeding from spontaneous operation of his own mind, free from outside influence.

7. CRIMINAL LAW.

In procuring confession from defendant by improper influence, he is forced to give evidence against himself in contravention of Constitution 1890, section 26.

HON. S F. DAVIS, Judge.

James Whip was convicted of murder, and he appeals. Reversed and remanded.

Reversed and remanded.

H. F. Jones and Louis Cochran, for appellant.

Attention of the court is directed to the alleged confessions shown by the sheriff of Humphreys county and by the prosecuting attorney. We have here a negro boy, entirely drunk, his life having been threatened, apprehended by strangers, stripped of his clothing and beaten by a negro who was ordered and directed to administer the beating to him by white men, thrown into a solitary cell, stripped of his clothing for a period of nine days, told by some of the men that they were going to hang him, told by one of the prisoners, a white man, and also by a deputy sheriff that he would be hanged unless he confessed and that it would go better with him to plead guilty and ask the mercy of the court; and he states that these were the reasons which impelled him to tell the sheriff and prosecuting attorney that he committed the act. Has this been denied by the sheriff, by the prisoner Cummins, by Webb, the deputy sheriff? No. The first words of the sheriff to the defendant when the defendant sent for him and asked to be permitted to go with the other prisoners in the jail were: "Haven't you anything to tell me?" He expected the confession he had already planted.

The prisoner, defendant, was told repeatedly by a white man in the jail whom he did not know, that they were going to hang him, but if he plead guilty they would not hang him. There was no evidence contradicting this statement of the defendant. Cummins does not appear on the stand and dispute it; nor does the deputy sheriff, Webb, deny that he also told this defendant that it would be best for him to plead guilty and ask the mercy of the court. More than this, it is shown by the language of the sheriff himself, just before the alleged confession was made that there was an understanding between the sheriff, Cummins and Webb to induce the defendant to make a confession.

Is it worthwhile to say more concerning the testimony relative to confessions thus procured? It makes no difference who procured the confession, who offered the inducements or suggested them, or who made the threats or administered the "initiation." Of course, the sheriff answered the perfunctory and leading question that the confessions were without inducement or immunity and without threat made by himself. That threats were made, that punishment was administered, that inducement was offered or suggested, and that influenced by all of this, a confession was wrung from the defendant is quite sufficient to make such a confession involuntary and, therefore, inadmissible; and the court erred in not excluding them from the consideration of the jury.

J. A. Lauderdale, Assistant Attorney-General, for the state.

The confessions made by appellant were properly admitted as testimony before the jury. At the time a hearing was had before the court, in the absence of the jury, defendant did not offer any testimony in contradiction of the statements made by Mr. Purvis, nor did he object to this testimony going to the jury. The testimony with reference to the admissibility of the dying declaration of deceased and the confessions of appellant were held at the same time. When this examination of Mr. Purvis was concluded, the defendant did not offer testimony to contradict him, neither did he object to the testimony with reference to the confession. When the state offered to prove the alleged confessions of appellant before the jury, no objections were made by him.

I understand it to be the rule that when testimony of confessions is admitted and it afterwards develops that the confessions were illegally obtained, that it is the duty of the court to exclude the same from the consideration of the jury. It is true that the defendant, a witness in his own behalf, testified that on the night he was put in jail other persons whipped him with a leather strap. He also testified that he did not know why they whipped him. If the officers had had him whipped for the purpose of extorting a confession from him, it stands to reason that they would have informed him why they were having him whipped. He also testified that one Cummins, a prisoner in jail with him, advised him that it would be better for him to confess. However, he did not produce this witness nor say why he does not do so.

J. D. Purvis testified that it was customary for the prisoners in jail to initiate a newcomer by giving him a whipping with a leather strap; that neither he nor any of his deputies ordered this negro whipped; that Cummins was in jail but did not have access to the prisoner, could not get nearer to him than twelve or fifteen feet, and that the door between them was locked.

After this proof was made, the defendant moved that the court exclude from the consideration of the jury the testimony for the state with reference to the confessions made by the defendant. The court overruled the motion and in order to do so he necessarily found that the proof offered by the defendant was not sufficient to generate in his mind a reasonable doubt as to whether or not this confession was freely and voluntarily made.

It is the duty of the court, if he believes beyond all reasonable doubt, that a confession was freely and voluntarily made, to admit it in evidence. He should not later exclude it unless it is made to appear that the confession was obtained by threats or promises. This court will not reverse the judgment of the trial court unless it is manifestly wrong. See Hunter v. State, 74 Miss. 515; Williams v. State, 72 Miss. 190; Ellis v. State, 65 Miss. 44; Simmons v. State, 61 Miss. 243; Corothers v. State, 121 Miss. 763; and Brown v. State, 107 So. 373.

Argued orally by Louis R. Cochran and H. F. Jones, for appellant, and J. A. Lauderdale, Assistant Attorney-General, for the state.

OPINION

ANDERSON, J.

Appellant, James Whip, a negro, was indicted and convicted in the circuit court of Humphreys county of the murder of George Ransome, a white man, and sentenced to be hanged. From that judgment appellant prosecutes this appeal.

On the night of the 24th of January, 1926, probably between seven and nine o'clock, Ransome's throat was cut, from which wound he died about half past eight o'clock the next morning. Appellant was with Ransome at the time the latter received the wound from which he died.

On the night Ransome was wounded, appellant was arrested and lodged in jail at Belzoni, the county seat of Humphreys county. He was placed in jail probably between ten and eleven o'clock that night. He was put in a cell in the basement of the jail away from the other prisoners confined therein.

To convict appellant, the state relied largely on two confessions made by the appellant to the sheriff of Humphreys county and the county attorney of that county. The first of these alleged confessions was made two or three days after the appellant was placed in jail; and the second eight or nine days after he was placed in jail. The first confession was only partial; the second was full and showed, if true that the appellant cut the throat of the deceased because the latter refused appe...