Wynn v. State

• Decision Date: 10 June 1944
• Citation: 181 S.W.2d 332
• Parties: WYNN v. STATE.
• Court: Tennessee Supreme Court

181 S.W.2d 332

WYNN v. STATE.

Supreme Court of Tennessee.

June 10, 1944

Appeal from Criminal Court, Shelby County; T. W. Harsh, Judge.

Tom Wynn was convicted of housebreaking, and he appeals in error.

Judgment corrected and as corrected, affirmed.

Pat J. Lyons, of Memphis, for plaintiff in error.

Nat Tipton, Asst. Atty. Gen., for the State.

GREEN Chief Justice.

The defendant has been convicted of housebreaking and has appealed in error to this Court.

The proprietor of a restaurant in Memphis, after closing his place of business about eleven o'clock at night, on his way home, was held up by three negroes at the point of a pistol and a small sum of money and a bunch of keys were taken from his person. He received a blow in resisting the assault. The negroes left him and he reported the matter to the police, telling them that the keys to his place of business were taken and that it was probably the intention of those assaulting him to enter it. The officers to whom the report was made undertook to watch this place of business for a time but were called away for other duties and later in the night the restaurant was entered, the safe opened, and about $2,000 in money was taken. The doors to the house and safe were opened with keys, without doubt the keys taken from the prosecutor's person. The safe was an old type affair, a sort of strong box, that was locked with a key. The bunch of keys was never found.

The record does not show just how suspicion of the police was directed toward the defendant, but he and two other negroes were taken into custody and charged with breaking into this restaurant. They were detained in the police station three days without being taken before a magistrate. They were held incommunicado during this time. On the third day they were taken before a magistrate and in open court pleaded guilty.

Shortly before he was taken in to the magistrate's court Wynn made a confession, as did the other two negroes. In their confessions the three admitted the holdup of the prosecutor the entry of the restaurant, and the stealing of the money and said that the money was carried to Wynn's house where it was divided among these three negroes and another negro who joined them before the entry into the restaurant.

A pistol was taken from the prosecutor's place of business and one of the negroes told the officers where this pistol could be found. Later the officers recovered the pistol from the place mentioned and it was identified by the prosecutor.

The record abundantly shows that all three of these negroes just after the robbery began spending money in sums quite for such men, buying furniture, jewelry, watches, fine shoes, and other articles.

The three negroes were convicted in the criminal court but Wynn alone has appealed. The chief contention made in his behalf is that the confession made by him to the officers was obtained under such circumstances as to render it inadmissible, and that for this reason a new trial should be granted.

When the confession was offered in evidence by one of the officers to whom it was made, objection was raised to its admission and the court entered into a preliminary inquiry to determine that question. This was proper practice. The admissibility of a confession is not a matter for submission to the jury. The rule was announced at an early date in this State that it was reversible error for the trial judge to submit to the jury the question as to whether the party making the confession was influenced by hope or fear. Boyd v. State, 21 Tenn. 39. This was approved in Self v. State, 65 Tenn. 244, and has been approved recently in Omohundro et al. v. State, 172 Tenn. 48, 109 S.W.2d 1159.

In Self v. State the Court said:

'When confessions are offered as evidence, their competency becomes a preliminary question, to be determined by the court. This imposes upon the presiding judge the duty of deciding the fact whether the party making the confession was influenced by hope or fear. This rule is so well established, that if the judge allow the jury to determine the preliminary fact, it is error, for which the judgment will be reversed: Boyd v. The State, 2 Humph. 39. These are elementary principles too long established and followed to be now questioned.' (Page 253 of 65 Tenn.).

We are aware that in several jurisdictions it is left to the jury, if the evidence is conflicting, to say whether a confession was voluntary. The cases are collected in a Note, 85 A.L.R. 870.

We adhere, however, to the rule long since established in this State, which has the support of many courts of high repute and of authoritative writers on the law of evidence. Wigmore on Evidence, Third Edition, § 681; Editorial Note, 85 A.L.R. 870. The practice is like that obtaining in determining the admissibility of a dying declaration, Dickason v. State, 139 Tenn. 601, 202 S.W. 922, or of evidence procured in a search. Goodwin v. State, 148 Tenn. 682, 257 S.W. 79.

A confession being admitted, its weight is of course a matter for the jury. That is, the jury is to determine whether defendant made the confession and whether the statements contained in it are true. To aid them in resolving these questions the jury may hear evidence of the circumstances under which the confession was procured.

The only testimony introduced before the trial judge as to the circumstances under which this confession was obtained showed that the defendant and the other negroes received no mistreatment while being held in custody and that their confessions were freely and voluntarily made. The officers in charge of them (and later the negroes themselves) said that th...