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Mr.
Justice WHITE delivered the opinion of the court.
This writ of error is prosecuted to a verdict and
sentence thereon, by which the plaintiff was found guilty of murder, and
condemned to suffer death. The homicide was committed on board the
American ship Herbert Fuller, While on the high seas, bound from Boston
to a port in South America. The accused was the first officer of the
ship, and the deceased, of whose murder he was convicted, was the master
of the vessel. The bill of exceptions, after stating the sailing of the
vessel from Boston on the 2d of July, 1896, with a cargo of lumber,
gives a general summary of the facts leading up to and surrounding the
homicide, as follows:
'She had on board a captain, Charles I. Nash;
Bram, the defendant; a second mate, August W. Blomberg; a steward; and
six seamen; also the captain's wife, Laura A. Nash, and one passenger,
Lester H. Monks. 'The vessel proceeded on her course towards her port of
destination until the night between July 13th and July 14th. On that
night, at 12 o'clock, the second mate's watch was relieved by the mate's
watch, of which Bram, the defendant, was the officer in charge. The
captain, his wife, the passenger, Monks, and the first mate and the
second mate, all lived in the after-cabin, occupying separate rooms. ...
The crew and the steward slept forward in the forward house.
'When the watch was changed at midnight, Bram,
the defendant, took the deck, the seamen Loheac and Perdok went forward
on the lookout, and Charles Brown (otherwise called Justus Leopold
Westerberg, his true name) took the wheel, where it was his duty to
remain till two o'clock, at about which time he was relieved by Loheac.
The second mate went to his room and the seamen of his watch to their
quarters at twelve midnight, and there was no evidence that any of them
or the steward appeared again till daylight. 'The passenger, Monks, who
occupied a room on the starboard side of the cabin, between the chart
room where the captain slept and the room on the forward starboard side
where Mrs. Nash slept, with doors opening from the passenger's room into
both the chart room used by the captain as his room and that of Mrs.
Nash, was aroused not far from two o'clock (the exact time is not known,
as he says) by a scream, and by another sound, characterized by him as a
gurgling sound. He arose, went to the captain room, and found the
captain's cot overturned, and the captain lying on the floor by it. He
spoke, but got no answer; put his hand on the captain's body, and found
it damp or wet. He then went to Mrs. Nash's room; did not see her, but
saw dark spots on her bedding, and suspected something wrong. He went on
deck, and called the mate, the defendant, telling him the captain was
killed. Both went below, took down the lantern hanging in the main
cabin, burning dimly, turned it up, and went through the captain's room
to the passenger's room, and the passenger there put on a shirt and
pantaloons. They then both returned to the deck, the mate on the way
stopping a brief time in his own room. Bram and Monks remained talking
of deck till about daybreak, when the steward was called, and told what
had happened. Up to this time no call had been made for the second mate,
nor had any one visited his room. Later it was found that Captain Nash,
his wife, and Blomberg, the second mate, were all dead, each with
several wounds upon the head, apparently given with a sharp instrument,
like an ax, penetrating the skull, and into the substance of the brain;
and the second mate lying on his back, with his feet crossed, in his
berth; Mrs. Nash in her bed, in her room, and at the back side of the
bed; and Captain Nash in his room, as already stated.
'The whole crew was called at or about daylight,
and were informed of the deaths.
'The bodies were removed from the cabin, and
placed in the jolly boat, and the boat was towed astern to Halifax. The
cabin was then locked, Bram taking the keys, and it remained locked till
the vessel reached Halifax.
'At first, after the discovery of the murders,
there was some hesitancy as to where the vessel should go. At the
defendant's suggestion, she was headed to go to Cayenne, in French
Guiana; but the plan was changed, and she steered for Halifax, Nova
Scotia, where she arrived July 21st, and was taken possession of by the
local authorities, at the instance of the consul general of the United
States.
'At first, after the discovery of the murders,
Bram, on whom had devolved the command of the ship, made Brown chief
mate and Loheac second mate. 'No blood or spots of blood were ever
discovered on the person or the clothing of any person on board, nor did
anything direct suspicion to any one.
'In a day or two, suspicion having been excited
in respect to the seaman Brown, the crew, under the supervision of Bram,
seized him, he not resisting, and put him in irons. All the while the
officers and seamen remained on deck. Bram navigated the ship until
Sunday before they reached Halifax, on Tuesday, and after the land of
Nova Scotia was in sight, when, Brown having stated to his shipmates, or
some of them, that he saw into the cabin through a window in the
after-part and on the starboard side of the house, and saw Bram, the
mate, kill the captain, in consequence of this statement of Brown, the
crew, led by the steward, suddenly overpowered the mate, and put him in
irons, he making no resistance, but declaring his innocence. Bram and
Brown were both carried into Halifax in irons.'
The bill of exceptions further states that, when
the ship arrived at Halifax, the accused and Brown were held in custody
by the chief of police at that place, and that, while in such custody,
the accused was taken from prison to the office of a detective, and
there questioned, under circumstances to be hereafter stated.
Subsequently to this occurrence at Halifax, all the officers, the crew,
and the passenger were examined before the American consul, and gave
their statements, which were reduced to writing and sworn to. They were
thereafter, at the request of the American consul, sent to Boston, where
the accused was indicted for the murder of Nash, the captain, of Mrs.
Nash, and the second mate, Blomberg. The trial and the conviction now
under review related to the first of these charges. The errors which are
here assigned as grounds for reversal are more han 60 in number, and are
classified by the counsel for the accused as follows: (a) Questions
raised preliminary to the trial; (b) questions raised during the trial;
(c) questions raised in connection with two motions for a new trial.
We first examine the error relied on which seems
to us deserving of the most serious consideration. During the trial, a
detective, by whom the accused was questioned while at Halifax, was
placed upon the stand as a witness for the prosecution, for the purpose
of testifying to the conversation had between himself and the accused at
Halifax, at the time and place already stated. What took place between
the accused and the detective at the time of the conversation, and what
occurred when the witness was tendered in order to prove the confession,
is thus stated in the bill of exceptions:
'Nicholas Power, of Halifax, called by the
government, testified that he was connected with the police department
of Halifax, and had been for thirty-two years, and for the last fifteen
years of that time as a detective officer; that after the arrival of the
Herbert Fuller at Halifax, in consequence of a conversation with Charles
Brown, he made an examination of Bram, the defendant, in the witness'
office, in the city hall at Halifax, when no one was present besides
Bram and the witness. The witness testified that no threats were made in
any way to Bram, nor any inducements held out to him.
'The witness was then asked: 'What did you say to
him and he to you?'
'To this the defendant's counsel objected. The
defendant's counsel was permitted to cross-examine the witness before
the court ruled upon the objection, and the witness stated that the
conversation took place in his office, where he had caused the
defendant, Bram, to be brought by a police officer; that up to that time
the defendant had been in the custody of the police authorities of
Halifax, in the custody of the superintendent of police, John
O'Sullivan; that the witness asked that the defendant should be brought
to his office for the purpose of interviewing him; that at his office he
stripped the defendant, and examined his clothing, but not his pockets;
that he told the defendant to submit to an examination, and that he
searched him; that the defendant was then in custody, and did everything
the witness directed him to do; that the witness was then a police
officer, acting in his official capacity; that all this took place
before the defendant had been examined before the United States consul;
and that the witness did not know that the local authorities had at that
time taken any action, but that the defendant was held for the United
States, - for the consul general of the United States.
'The witness answered questions by the court as
follows:
"You say there was no inducement to him in the way of promise or
expectation of advantage?
"A. Not any, your honor.
"Q. Held out?
"A. Not any, your honor.
"Q. Nor anything said in the way of suggestion to him that he
might suffer if he did not, - that it might be worse for him?
"A. No, sir; not any.
"Q. So far as you were concerned, it was entirely voluntary?
"A. Voluntary, indeed.
"Q. No influence on your part exerted to persuade him on way or
the other?
"A. None whatever, sir; none whatever.'
'The defendant then renewed his objection to the question what
conversation had taken place between Bram and the witness, for the
following reasons: That, at the time, the defendant was in the custody
of the chief of police at Halifax; that the witness, in an official
capacity, directed the police authorities to bring the defendant as a
prisioner to his private office, and there proceeded to take
extraordinary liberties with him. He stripped him. The defendant
understood that he was a prisoner, and he obeyed every order and
direction that the witness gave. Under these circumstances, the counsel
submitted that no statement made by the defendant while so held in
custody, and his rights interfered with to the extent described, was a
free and voluntary statement, and no statement as made by him bearing
upon this issue was competent.
'The objection was overruled, and the defendant
excepted on all the grounds above stated, and the exceptions were
allowed.
'The witness answered as follows:
"When Mr. Bram came into my office, I said
to him: 'Bram, we are trying to unravel this horrible mystery.' I said:
'Your position is rather an awkward one. I have had Brown in this
office, and he made a statement that he saw you do the murder.' He said:
'He could not have seen me. Where was he?' I said: 'He states he was at
the wheel.' 'Well,' he said, 'he could not see me from there.' I said:
'Now, look here, Bram, I am satisfied that you killed the captain from
all I have heard from Mr. Brown. But,' I said, 'some of us here think
you could not have done all that crime alone. If you had an accomplice,
you should say so, and not have the blame of this horrible crime on your
own shoulders.' He said: 'Well, I think, and many others on board the
ship think, that Brown is the murderer; but I don't know anything about
it.' He was rather short in his replies.
"Q. Anything further said by either of you?
"A. No; there was nothing further said on
that occasion.' 'The direct examination of this witness was limited to
the interview between the witness and the defendant, Bram.
'On cross-examination of the witness Power, he testified that, at the
time of the above-stated examination, he took possession of a pair of
suspenders belonging to the defendant, and kept the same in his office
until the prisoners were coming to Boston (the whole crew and the
passenger were imprisoned at Halifax, and sent as prisoners to Boston),
when he handed them over to the Halifax superintendent of police, and
they were sent to Boston, with other property of the defendant.
'Defendant's counsel, upon the ground of showing interest on the part
of the witness, then asked: 'What other articles belonging to the
defendant did you take possession of at that time?'
'This line of inquiry was objected to by the district attorney, on the
ground that the matter was not opened on the direct examination, and the
defendant could call the witness as part of his case if he saw fit. The
court excluded the inquiry, ruling that it was not proper
cross-examination, and did not tend to show interest, and the defendant
duly excepted, and the exception was allowed.'
The contention is that the foregoing
conversation, between the detective and the accused, was competent only
as a confession by him made; that it was offered as such; and that it
was erroneously admitted, as it was not shown to have been voluntary.
The question thus presented was manifestly covered by the exception
which was taken at the trial. When it was proposed to examine the
detective officer as to the conversation had by him with the accused,
objection was duly made. The court thereupon allowed the officer to be
examined and cross-examined as to the circumstances attending the
conversation which it was proposed to offer as a confession. When this
examination was concluded, the accused renewed his objection, and his
exception to the admissibility of the conversation was allowed, and
regularly noted. The witness then proceeded to give the conversation. To
say that under these circumstances the objection which was twice
presented and regularly allowed should have been renewed at the
termination of the testimony of the witness would be pushing to an
unreasonable length the salutary rule which requires that exceptions be
taken at the trial to rulings which are considered erroneous, and the
legality of which are thereafter to be questioned on error. There can be
no doubt that the manner in which the exception was allowed and noted
fully called attention to the fact that the admission of the
conversation was objected to because it was not voluntary, and the
overruling of this objection is the matter now assigned as error here.
Indeed, in the argument at bar no contention was made as to the
sufficiency and regularity of the exception. It is manifest that the
sole ground upon which the proof of the conversation was tendered was
that it was a confession, as this was the only conceivable hypothesis
upon which it could have been legally admitted to the jury. It is also
clear that, in determining whether the proper foundation was laid for
its admission, we are not concerned with how far the confession tended
to prove guilt. Having been offered as a confession, and being
admissible only because of that fact, a consideration of the measure of
proof which resulted from it does not arise in determining its
admissibility. If found to have been illegally admitted, reversible
error will result, since the prosecution cannot, on the one hand, offer
evidence to prove guilt, and which by the very offer is vouched for as
tending to that end, and on the other hand, for the purpose of avoiding
the consequence of the error caused by its wrongful admission, be heard
to assert that the matter offered as a confession was not prejudicial,
because it did not tend to prove guilt. The principle on the subject is
thus stated in a note to section 219 of Greenleaf on Evidence: 'The rule
excludes not only direct confessions, but any other declaration tending
to implicate the prisoner in the crime charged, even though, in terms,
it is an accusation of another or a refusal to confess. Rex
v. Tyler, 1 Car. & P. 129; Rex v. Enoch, 5 Car. & P.
539. See further, as to the object of the rule, Rex v. Court, 7
Car. & P. 486, per Littledale, J.; People v. Ward, 15 Wend.
231.' Nor from the fact that in Wilson v. U. S., 162 U.S. 621 ,
16 Sup. Ct. 895, mention was made of the circumstance that the statement
of the accused was a mere denial of guilt, accompanied with exculpatory
explanations, does the decision in that case conflict with the principle
we have just stated. The ruling there made that error to the prejudice
of the accused did not arise from the admission of the statement there
considered was based, not alone upon the nature of the statement, but
upon 'the evidence of its voluntary character, the absence of any
threat, compulsion, or inducement, or assertion or indication of fear,
or even of such influence as the administration of an oath has been
supposed to exert.' 162 U.S. 624 , 16 Sup. Ct. 900.
The contradiction involved in the assertion that
the statement of an accused tended to prove guilt, and therefore was
admissible, and then, after procuring its admission, claiming that it
did not tend to prove guilt, and could not therefore have been
prejudicial, has been well stated by the supreme court of North Carolina
(State v. Rorie, 74 N. C. 148):
'But the state says this was a denial of guilt,
and not a confession. It was a declaration which the state used to
procure a to prove guilt, and therefore was admissible, say the
declaration did not prejudice the prisoner's case. Why introduce it at
all unless it was to lay a foundation for the prosecution? The use which
was made of the prisoner's statement precludes the state from saying
that it was not used to his prejudice.'
In criminal trials, in the courts of the United
States, wherever a question arises whether a confession is incompetent
because not voluntary, the issue is controlled by that portion of the
fifth amendment to the constitution of the United States commanding that
no person 'shall be compelled in any criminal case to be a witness
against himself.' The legal principle by which the admissibility of the
confession of an accused person is to be determined is expressed in the
text-books.
In 3 Russ. Crimes (6th Ed.) 478, it is stated as follows:
'But a confession, in order to be admissible,
must be free and voluntary; that is, must not be extracted by any sort
of threats or violence, nor obtained by any direct or implied promises,
however slight, nor by the exertion of any improper influence. ... A
confession can never be received in evidence where the prisoner has been
influenced by any threat or promise; for the law cannot measure the
force of the influence used, or decide upon its effect upon the mind of
the prisoner, and therefore excludes the declaration if any degree of
influence has been exerted.'
And this summary of the law is in harmony with the doctrine as
expressed by other writers, although the form in which they couch its
statement may be different. 1 Greenl. Ev. (15th Ed.) 219; Whart. Cr. Ev.
( 9th Ed.) 631; 2 Tayl. Ev. (9th Ed.) 872; 1 Bish. New Cr. Proc. 1217,
par. 4.
These writers but express the result of a multitude of American and
English cases, which will be found collected by the authors and editors
either in the text or in notes, especially in the ninth edition of
Taylor, second volume, tenth chapter, and the American notes, following
page 588, where a very full reference is made to decided cases. The
statement of the rule is also in entire accord with the decisions of
this court on the subject. Hopt v. Utah (1883) 110 U.S. 574 , 4
Sup. Ct. 202; Sparf v. U. S. ( 1895) 156 U.S. 51, 55 , 15 S.
Sup. Ct. 273; Pierce v. U. S. (1896) 160 U.S. 355 , 16 Sup. Ct.
321; and Wilson v. U. S. (1896) 162 U.S. 613 , 16 Sup. Ct. 895.
A brief consideration of the reasons which gave
rise to the adoption of the fifth amendment, of the wrongs which it was
intended to prevent, and of the safeguards which it was its purpose
unalterably to secure, will make it clear that the generic language of
the amendment was but a crystalization when the amendment was adopted,
and since expressed in the text and expounded by the adjudications, and
hence that the statements on the subject by the text writers but
formulate the conceptions and commands of the amendment itself. In Boyd
v. U. S., 116 U.S. 616 , 6 Sup. Ct. 524, attention was called to the
intimate relation existing between the provision of the fifth amendment
securing one accused against being compelled to testify against himself,
and those of the fourth amendment protecting against unreasonable
searches and seizures; and it was in that case demonstrated that both of
these amendments contemplated perpetuating, in their full efficacy, by
means of a constitutional provision, principles of humanity and civil
liberty which had been secured in the mother country only after years of
struggle, so as to implant them in our institutions in the fullness of
their integrity, free from the possibilities of future legislative
change. In commenting on the same subject in Brown v. Walker,
161 U.S. 596 , 16 Sup. Ct. 647, the court, speaking through Mr. Justice
Brown, said:
'The maxim, 'Nemo tenetur seipsum accusare,'
had its origin in a protest against the inquisitorial and manifestly
unjust methods of interrogating accused persons, which has long obtained
in the continental system, and, until the expulsion of the Stuarts from
the British throne, in 1688, and the erection of additional barriers for
the protection of the people against the exercise of arbitrary power,
was not uncommon even in England. While the admissions or confessions of
the prisoner, when voluntarily and freely made, have always ranked high
in the scale of incriminating evidence, if an accused person be asked to
explain his apparent connection with a crime under investigation, the
ease with which the questions put to him may assume an inquisitorial
character, the temptation to press the witness unduly, to browbeat him
if he be timid or reluctant, to push him into a corner, and to entrap
him into fatal contradictions, which is so painfully evident in many of
the earlier state trials, notably in those of Sir Nicholas Throckmorton
and Udal, the Puritan minister, made the system so odious as to give
rise to a demand for its total abolition. The change in the English
criminal procedure in that particular seems to be founded upon no
statute and no judicial opinion, but upon a general and silent
acquiescence of the courts in a popular demand. But, however adopted, it
has become firmly imbedded in English as well as in American
jurisprudence. So deeply did the iniquities of the ancient system
impress themselves upon the minds of the American colonists that the
states, with one accord, made a denial of the right to question an
accused person a part of their fundamental law; so that a maxim, which
in England was a mere rule of evidence, became clothed in this country
with the impregnability of a constitutional enactment.'
There can be no doubt that long prior to our
independence the doctrine that one accused of crime could not be
compelled to testify against himself had reached its full development in
the common law, was there considered as resting on the law of nature,
and was imbedded in that system as one of its great and distinguishing
attributes.
In Burrowes v. High Commission Court (1616) Bulst. 49, Lord
Coke makes reference to two decisions of the courts of common law as
early as the reign of Queen Elizabeth, wherein it was decided that the
right of a party not to be compelled to accuse himself could not be
violated by the ecclesiastical courts. Whatever, after that date, may
have been the departure in practice from this principle of the common
law (Tayl. Ev. 886), certain it is that, without a statute so
commanding, in Felton's Case (1628) 3 How. State Tr. 371, the
judges unanimously resolved, on the question being submitted to them by
the king, that 'no such punishment as torture by the rack was known or
allowed by our law.'
Lord Hale died December 25, 1676. In the first volume of his Pleas of
the Crown (1st Ed. p. 1736), treating of the subject of confessions in
cases of treason, it is said, at page 304:
'That the confession before one of the privy council or a justice of
the peace being voluntarily made, without torture, is sufficient as to
the indictment on trial to satisfy the statute, and it is not necessary
that it be a confession in court; but the confession is sufficient if
made before him that hath power to take an examination.'
In the second volume, at page 225, it is said:
'When the prisoner is arraigned, and demanded what he saith to the
indictment, either he confesseth the indictment, or pleads to it, or
stands mute, and will not answer.
'The confession is either simple, or relative in order to the
attainment of some other advantage.
'That which I call a simple confession is, where the defendant, upon
hearing of his indictment, without any other respect, confesseth it,
this is a conviction; but it is usual for the court, especially if it be
out of clergy, to advise the party to plead and put himself upon his
trial, and not presently to record his confession, but to admit him to
plead. 27 Assiz. 40.
'If it be but an extrajudicial confession, tho it be in court, as where
the prisoner freely tells the fact, and demands the opinion of the court
whether it be felony, tho upon the fact thus shown it appear to be
felony, the court will not record his confession, but admit him to plead
to the felony 'Not guilty.' 22 Assiz. 71, and Stamf. P. C. lib. 2, c.
51, fol. 142b.'
In chapter 38 of volume 2, at page 284, after referring to the power of
justices of the peace and coroners, under the statutes of Philip and
Mary, to take examinations of accused persons, but not upon oath, and
that the same might be read in evidence on the trial of the prisoner, it
is said:
'But then (1) oath must be made either by the justice or coroner that
took them, or the clerk that wrote them; that they are the true
substance of what the informer gave in upon oath, and what the prisoner
confessed upon his examination.
'(2) As to the examination of the prisoner, it must be testified that
he did it freely, without any menace or undue terror imposed upon him;
for I have known the prisoner disown his confession upon his
examination, and hath sometimes been acquitted against such his
confession. ...'
Gilbert, in his treatise on Evidence (2d Ed., published in 1760), says,
at page 139:
'... But, the , this confession must be voluntary, and without
compulsion; for our law in this differs from the civil law; that it will
not force any man to accuse himself; and in this we do certainly follow
the law of nature, which commands every man to endeavor his own
preservation; and therefore pain and force may compel men to confess
what is not the truth of facts, and consequently such extorted
confessions are not to be depended on.'
In Hawkins' Pleas of the Crown (6th Ed., by Leach, published in 1787,
bk. 2, c. 31) it is said:
'Sec. 2. ... And where a person upon his arraignment actually confesses
he is guilty, or unadvisedly discloses the special manner of the fact,
supposing that it doth not amount to felony where it doth, yet the
judges, upon probable circumstances, that such confession may proceed
from fear, menace, or duress, or from weakness or ignorance, may refuse
to record such confession, and suffer the party to plead not guilty.'
In section 3, c. 46, it is stated that examinations by the common law
before a secretary of state or other magistrate for treason or other
crimes not within the statutes of Philip and Mary, and also the
confession of the defendant himself in discourse with private persons,
might be given in evidence against the party confessing. A note (2) to
this section, presumably inserted by the editor (see note to Gilham's
Case, 1 Moody, 194, 195), reads as follows:
'The human mind, under the pressure of calamity,
is easily seduced, and is liable, in the alarm of danger, to acknowledge
indiscriminately a falsehood or a truth, as different agitations may
prevail. A confession, therefore, whether made upon an official
examination or in discourse with private persons, which is obtained from
a defendant, either by the flattery of hope, or by the impressions of
fear, however slightly the emotions may be implanted (vide O. B. 1786,
p. 387), is not admissible evidence; for the law will not suffer a
prisoner to be made the deluded instrument of his own conviction.'
Although the English reports, prior to the separation, are almost
devoid of decisions applying the principles stated by Lord Hale,
Hawkins, and Gilbert, both the opinion of Lord Mansfield in Rex v.
Rudd (1775) Cowp. 333, and that of Mr. Justice Wilson, some years
after the separation, in Lambe's Case (1791) 2 Leach (4th Ed.)
552, make it certain that the rule as stated by
Hawkins, Gilbert, and Hale was considered in the English courts as no
longer open to question, and as one of the fundamental principles of the
common law. Looking at the doctrine as thus established, it would seem
plainly to be deducible that as the principle from which, under the law
of nature, it was held that one accused could not be compelled to
testify against himself, was in its essence comprehensive enough to
exclude all manifestations of compulsion, whether arising from torture
or from moral causes, the rule formulating the principle with logical
accuracy came to be so stated as to embrace all cases of compulsion
which were covered by the doctrine. As the facts by which compulsion
might manifest itself, whether physical or moral, would be necessarily
ever different, the measure by which the involuntary nature of the
confession was to be ascertained was stated in the rule, not by the
changing causes, but by their resultant effect upon the mind, - that is,
hope or fear, - so that, however diverse might be the facts, the test of
whether the confession as voluntary would be uniform, - that is, would
be ascertained by the condition of mind which the causes ordinarily
operated to create. The well-settled nature of the rule in England at
the time of the adoption of the constitution and of the fifth amendment,
and the intimate knowledge had by the framers of the principles of civil
liberty which had become a part of the common law, aptly explain the
conciseness of the language of that amendment. And the accuracy with
which the doctrine as to confessions as now formulated embodies the rule
existing at common law, and imbedded in the fifth amendment, was noticed
by this court in Wilson v. U. S., supra, where, after referring
to the criteria of hope and fear, speaking through Mr. Chief Justice
Fuller, it was said: 'In short, the true test of admissibility is that
the confession is made freely, voluntarily, and without compulsion or
inducement of any sort.' 162 U.S. 623 , 16 Sup. Ct. 899.
In approaching the adjudicated cases for the
purpose of endeavoring to deduce from them what quantum of proof, in a
case presented, is adequate to create, by the operation of hope or fear,
an involuntary condition of the mind, the difficulty encountered is that
all the decided cases necessarily rest upon the state of facts which
existed in the particular case, and therefore furnish no certain
criterion, since the conclusion that a given state of fact was adequate
to have produced an involuntary confession does not establish that the
same result has been created by a different, although somewhat similar,
condition of fact. Indeed, the embarrassment which comes from the
varying state of fact considered in the decided cases has given rise to
the statement that there was no general rule of law by which the
admissibility of a confession could be determined, but that the courts
had left the rule to be evolved from the facts of each particular case.
2 Tayl. Ev. 8722. And, again, it has been said that so great was the
perplexity resulting from an attempt to reconcile the authorities that
it was manifest that not only must each case solely depend upon its own
facts, but that even the legal rule to be applied was involved in
obscurity and confusion. Green v. State, 88 Ga. 516, 15
S. E. 10; State v. Patterson, 73 Mo. 695, 705; State v.
Matthews, 66 N. C. 106, 109.
The first of these statements but expresses the
thought that whether a confession was voluntary was primarily one of
fact, and therefore every case must depend upon its own proof. The
second is obviously a misconception, for, however great may be the
divergence between the facts decided in previous cases and those
presented in any given case, no doubt or obscurity can arise as to the
rule itself, since it is found in the text of the constitution. Much of
the confusion which has resulted from the effort to deduce from the
adjudged cases what would be a sufficient quantum of proof to show that
a confession was or was not voluntary has arisen from a misconception of
the subject to which the proof must address itself. The rule is not
that, in order to render a statement admissible, the proof must be
adequate to establish that the particular communications contained in a
statement were voluntarily made, but it must be sufficient to establish
that the making of the statement was voluntary; that is to say, that,
from causes which the law treats as legally sufficient to engender in
the mind of the accused hope or fear in respect to the crime charged,
the accused was not involuntarily impelled to make a statement when but
for the improper influences he would have remained silent. With this
understanding of the rule, we come to a consideration of the
authorities.
By statutes enacted early in the second half of the sixteenth century (
1 & 2 Phil. & M. c. 13, and 2 & 3 Phil. & M. c. 10),
justices of the peace were directed, on accusations of felony, to 'take
the examination of the said prisoner and information of them that bring
him.' In 1655, the judges directed that the examination of prisoners
should be without oath (Kel. 2), and the reason of this rule, Starkie,
Ev. ( 2d Ed. p. 29), says, was that an examination under oath 'would be
a species of duress, and a violation of the maxim that no one is bound
to incriminate himself.' The ruling of the judges in this regard was
recognized in the statute of 7 Geo. IV. c. 64, which, although requiring
'information of witnesses' to be 'upon oath,' simply directed an
'examination' of the accused.
But, even where the examination was held without oath, it came to be
settled by judicial decisions in England that, before such an
examination could be received in evidence, it must appear that the
accused was made to understand that it was optional with him to make a
statement. Reg. v. Green (1833) 5 Car. & P. 322; Reg. v.
Arnold (1838) 8 Car. & P. 621. The reason upon which this rule
rested undoubtedly was that the mere fact of the magistrate's taking the
statement, even though unaccompanied with an oath, might, unless he was
cautioned, operate upon the mind of the prisoner to impel him
involuntarily to speak. The judicial rule as to caution was finally
embodied into positive law by the statute of 11 & 12 Vict. c. 42,
where, by section 18, the magistrate was directed, after having read or
caused to be read to the accused the depositions against him, to ask the
accused: 'Having heard the evidence, do you wish to say anything in
answer to the charge? You are not obliged to say anything unless you
desire to do so, but whatever you say will be taken down in writing, and
may be given in evidence against you upon your trial.'
The English courts were frequently called upon to determine whether
language used by a magistrate when about to take the examination of one
accused tended to induce in the mind of the latter such hope or fear as
to lead to involuntary mental action. In Reg. v. Drew (1837) 8
Car. & P. 140, and Reg. v. Harris (1844) 1 Cox, Cr. Cas.
106, though the accused had been cautioned not to say anything to
prejudice himself, the further statement, in substance, by the
magistrate or his clerk, that what the prisoner said would be taken
down, and 'would' be used for or against him at his trial, was held by
Coleridge, J., to be equivalent to saying that what the prisoner chose
to say might be used in his favor at the trial, and to be a direct
inducement to make a confession, rendering the statement incompetent as
evidence. Like rulings were also made in cases where similar assurances
that the statement of the prisoner would be used were made to him by a
police officer. Reg. v. Morton (1843) 2 Moody & R. 514, and
Reg. v. Farley (1844) 1 Cox. Cr. Cas. 76.
In cases where statements of one accused had been
made to others than the magistrate upon an examination, differences of
opinion arose among the English judges as to whether a confession made
to a person not in a position of authority over the accused was
admissible in evidence after an inducement had been held out to the
prisoner by such person. Rex v. Spencer (1837) 7 Car. &
P. 776. It was finally settled, however, that the
effect of inducements must be confined to those made by persons in
authority (Reg. v. Taylor 8 Car. & P. 734; Reg.
v. Moore 2 Denison, Cr. Cas. 522), although, in the last cited case,
while former precedents were followed, the court expressed strong doubts
as to the wisdom of the restriction (2 Denison, Cr. Cas. 527).
There can be no question, however, that a police
officer, actually or constructively in charge of one in custody on a
suspicion of having committed crime, is a person in authority within the
rule; and, as this is so well established, we will not consider the
adjudicated cases in order to demonstrate it, but content
ourselves with a reference to the statement on the subject made in 3
Russ. Crimes, at page 501.
Many other cases in the English reports illustrate the application of
the rule excluding statements made under inducement improperly operating
to influence the mind of an accused person.
In Rex v. Thompson (1783) 1 Leach (4th Ed.) 291, a declaration
to a suspected person that, unless he gave a more satisfactory account
of his connection with a stolen bank note, his interrogator would take
him before a magistrate, was held equivalent to stating that it would be
better to confess, and to have operated to lead the prisoner to believe
that he would not be taken before a magistrate if he confessed. Baron
Hotham, after commenting upon the evidence, in substance said that the
prisoner was hardly a free agent at the time, as, though the language
addressed to him scarcely amounted to a threat, it was certainly a
strong invitation to the prisoner to confess, the manner in which it had
been expressed rendering it more efficacious.
In Cass' Case (1784) 1 Leach, 293, a confession induced by the
statement of the prosecutor to the accused, 'I am in great distress
about my irons. If you will tell me where they are, I will be favorable
to you,' was held inadmissible. Mr. Justice Gould said that the
slightest hopes of mercy held out to a prisoner to induce him to
disclose the fact was sufficient to invalidate a confession.
In the cases following, statements made by a prisoner were held
inadmissible, because induced by the language set out in each case: In
Rex v. Griffin (1809) Russ. & R. 151, telling the prisoner
that it would be better for him to confess. In Rex v. Jones, Id.
152, the prosecutor saying to the accused that he only wanted his money,
and, if the prisoner gave him that, he might go to the devil, if he
pleased. In Rex v. Kingston ( 1830) 4 Car. & P. 387, saying
to the accused: 'You are under suspicion of this, and you had better
tell all you know.' In Rex. v. Enoch (1833) 5 Car . & P.
539, saying: 'You had better tell the truth, or it will lie upon you,
and the man go free.' In Rex v. Mills (1833) 6 Car. & P.
146, saying: 'It is no use for you to deny it, for there is the man and
boy who will swear they saw you do it.' In Sherrington's Case
(1838) 2 Lewin, Cr. Cas. 123, saying: 'There is no doubt, thou wilt be
found guilty: It will be better for you if you will confess.' In Rex
v. Thomas (1833) 6 Car. & P. 353, saying: 'You had better split,
and not suffer for all of them.' In Rex v. Simpson (1834) 1
Moody, 410, and Ryan & M. 410, repeated importunities by neighbors
and relatives of the prosecutor, coupled with assurances to the
suspected person that it would be a good deal worse for her if she did
not, and that it would be better for her if she did confess. In Rex
v. Upchurch ( 1836) 1 Moody, 465, saying: 'If you are guilty, do
confess. It will perhaps save your neck. You will have to go to prison.
If William H. [ another person suspected, and whom the prisoner had
charged] is found clear, the guilt will fall on you. Pray, tell me if
you did it.' In Reg. v. Croydon (1846) 2 Cox, Cr. Cas. 67,
saying: 'I dare say you had a hand in it. You may as well tell me all
about it.' In Reg. v. Garner (1848) 1 Denison, Cr. Cas. 329,
saying: 'It will be better for you to speak out.'
In Reg. v. Fleming (1842) Arms., M. & O. 330, statements of
a police officer suspected of having committed a crime, in answer to
questions propounded by his superior in office, after the latter had
warned the accused to be cautious in his answers, were held
inadmissible. The court said: 'The prisoner and witness being both in
the police force, the prisoner, as the witness admitted, might have
conceived himself bound to tell the truth; and the caution was not of
that nature which should make the confession of the prisoner
admissible.'
In the leading case of Reg. v. Baldry (1852) 2 Denison, Cr.
Cas. 430, after full consideration, it was held that the declaration
made to a prisoner, who had first been cautioned that what he said
'would' be used as evidence, merely imported that such statement 'might'
be used, and could not have induced in the mind of the prisoner a hope
of benefit sufficient to lead him to make a statement. The cases of Reg.
v. Drew, Reg. v. Harris, Reg. v. Morton, and Reg.
v. Farley, heretofore referred to, were held to have been
erroneously decided.
In the course of the argument, counsel for the prisoner cited and
commented upon Cass' Case, Rex v. Thomas, Sherrington's
Case and Rex v. Enoch, also heretofore referred to, as
illustrating the doctrine that assuring the accused that it would be
better for him to speak, or other intimation given of possible benefit,
would invalidate a confession thus induced. After counsel had concluded
his reference to these cases, Pollock, C. B., said (page 432): 'There is
no doubt as to the application of the rule in those cases, which are all
familiar to the judges and to the bar.'
In the course of the opinion, subsequently delivered by him, Chief
Baron Pollock said (page 442):
'A simple caution to the accused to tell the truth, if he says
anything, it has been decided not to be sufficient to prevent the
statement made being given in evidence; and although it may be put that,
when a person is told to tell the truth, he may possibly understand that
the only thing true is that he is guilty, that is not what he ought to
understand. He is reminded that he need not say anything, but, if he
says anything, let it be true. It has been decided that that would not
prevent the statement being received in evidence, by Littledale, J., in
the case of Rex v. Court, 7 Car. & P. 486, and by Rolfe, B.,
in a case at Gloucester, Reg. v. Holmes, 1 Car. & K. 258;
but, where the admonition to speak the truth has been coupled with any
expression importing that it would be better for him to do so, it has
been held that the confession was not receivable, the objectionable
words being that it would be better to speak the truth, because they
import that it would be better for him to say something. This was
decided in the case of Reg. v. Garner, 1 Denison, Cr. Cas. 329.
The true distinction between the present case and a case of that kind is
that it is left to the prisoner a matter of perfect indifference whether
he should open his mouth or not.'
In Reg. v. Moore (1852) 2 Denison, Cr. Cas. 523, also decided
by the court of criminal appeal, an admonition to a person suspected of
crime that she 'had better speak the truth,' was held not to vitiate a
subsequent confession, because not made by a person in authority. Parke,
B ., delivering the opinion of the judges, said, in substance (page
526), that one element in the consideration of the question whether a
confession ought to be excluded was 'whether the threat or inducement
was such as to be likely to influence the prisoner,' and 'that if the
threat or inducement was held out, actually or constructively, by a
person in authority, it cannot be received, however slight the threat or
inducement.' In Reg. v. Cheverton (1862) 2 Falc. & F. 833, a
statement made by a policeman to a person in his custody, that 'you had
better tell all about it; it will save you trouble,' was held to operate
as a threat or inducement sufficient to render what was said by the
prisoner inadmissible.
In Reg. v. Fennell (1881) 7 Q. B. Div. 147, the court for crown
cases reserved referred approvingly to the statement of the rule
contained in Russell on Crimes, and, 'upon all the decided cases,' held
inadmissible a statement made, induced by the prosecutor saying to the
prisoner in the presence of an inspector of police: 'The inspector tells
me you are making housebreaking implements. If this is so, you had
better tell the truth; it may be better for you.'
The latest decision in England on the subject of inducement, made by
the court for crown cases reserved, is Reg. v. Thompson 2 Q. B.
12. At the trial a confession was offered in evidence, which had been
made by the defendant before his arrest upon the charge of having
embezzled funds of a certain corporation. Objection was interposed to
its reception in evidence, on the ground that it had been made under the
operation of an inducement held out by the chairman of the company in a
statement to a relative of the accused, intended to be and actually
communicated to the latter, that 'it will be the right thing for
Marcellus [the accused] to make a clean breast of it.' The evidence
having been admitted, and the prisoner convicted, the question was
submitted to the upper court whether the evidence of the confession was
properly admitted. The opinion of the appellate court was delivered by
Cave, J., and concurred in by Lord Coleridge, C. J., Hawkins, Day, and
Wills, JJ. After stating and adopting the ruling of Baron Parke in Reg.
v. Warringham, 2 Denison, Cr. Cas. 447, note, to the effect that it
was the duty of the prosecutor to satisfy the trial judge that the
confession had not been obtained by improper means, and that, where it
was impossible to collect from the proof whether such was the case or
not, the confession ought not to be received, the opinion referred
approvingly to the declaration of Pollock, C. B., in Reg. v. Baldry,
that the true ground of the exclusion of statements not voluntary was
that 'it would not be safe to receive a statement made under any
influence or fear.' The court then quoted the rule laid down in Russell
on Crimes as being a statement of the principles which had been restated
and affirmed by the Lord Chief Justice in the Fennell Case, and
added:
'If these principles and the reasons for them
are, as it seems impossible to doubt, well founded, they afford to
magistrates a simple test by which the admissibility of a confession may
be decided. They have to ask, is it proved affirmatively that the
confession was free and voluntary? that is, was it preceded by any
inducement to make a statement held out by a person in authority? If so,
and the inducement has not clearly been removed before the statement was
made, evidence of the statement is inadmissible.'
After reviewing the evidence, and holding that, under the ruling of
Pollock, C. B., in the Baldry Case, it was immaterial whether
the statements made by the chairman were calculated to elicit the truth,
and intimating that they tended to lead the prisoner to believe that it
would be better for him to say something, the opinion concluded with
deciding that, 'on the broad, plain ground that it was not proved
satisfactorily that the confession was free and voluntary,' the
confession ought not to have been received.
While, as we have said, there is no question that a police officer
having a prisoner in custody is a person in authority, within the rule
in England, and, therefore, that any inducement by him offered,
calculated to operate upon the mind of the prisoner, would render a
confession as a consequence thereof inadmissible, there seems to be
doubt in England whether the doctrine does not extend further, and hold
that the mere fact of the interrogation of a prisoner by a police
officer would per se render the confession inadmissible, because of the
inducement resulting from the very nature of the authority exercised by
the police officer, assimilating him in this regard to a committing or
examining magistrate. 3 Russ. Crimes, p. 510, note t. In Reg. v.
Johnson (1864) 15 Ir. C. L. 60, this subject was elaborately
considered by the Irish court of criminal appeal, seven of the judges
writing opinions, and the majority concluding, on a full consideration
of the English and Irish authorities, that a policeman was not such an
official as would render per se any confession elicited by his
questioning the prisoner inadmissible, although the fact of his
questioning became an important element in determining whether
inducement resulted from the language by him used. The English
authorities, however, referred to in the above note to Russell on
Crimes, are later in date than Reg. v. Johnson, although they
emanate from nisi prius courts, and not from appellate
tribunals. Whatever be the rule in this regard in England, however, it
is certain that, where a confession is elicited by the questions of a
policeman, the fact of its having been so obtained, it is conceded, may
be an important element in determining whether the answers of the
prisoner were voluntary. The attempt on the part of a police officer to
obtain a confession by interrogating has been often reproved by the
English courts as unfair to the prisoner, and as approaching dangerously
near to a violation of the rule protecting an accused from being
compelled to testify against himself. Berriman's Case ( 1854) 6
Cox, Cr. Cas. 388; Cheverton's Case (1862) 2 Falc. & F. 833;
Mick's Case (1863) 3 Falc. & F. 822; Reagan's Case
(1867) 17 Law T. (N. S.) 325; and Reason's Case (1872) 12 Cox,
Cr. Cas. 228.
From this review it clearly appears that the rule as to confessions by
an accused (leaving out of consideration the rule now followed in
England restricting the effect of inducements, according as such
inducements were or were not held out by persons in authority) is in
England to-day what it was prior to and at the adoption of the fifth
amendment, and that, while all the decided cases necessarily rest upon
the state of facts which the cases considered, nevertheless the
decisions as a whole afford a safe guide by which to ascertain whether
in this case the confession was voluntary, since the facts here
presented are strikingly like those considered in many of the English
cases.
We come, then, to the American authorities. In
this court the general rule that the confession must be free and
voluntary - that is, not produced by inducements engendering either hope
or fear - is settled by the authorities referred to at the outset. The
facts in the particular cases decided in this court, and which have been
referred to, manifested so clearly that the confessions were voluntary
that no useful purpose can be subserved by analyzing them. In this court
also it has been settled that the mere fact that the confession is made
to a police officer, while the accused was under arrest in or out of
prison, or was drawn out by his questions, does not necessarily render
the confession involuntary; but, as one of the circumstances, such
imprisonment or interrogation may be taken into account in determining
whether or not the statements of the prisoner were voluntary.
Hopt v. Utah, 110 U.S. 574 , 4 Sup. Ct. 202; Sparf v. U. S.,
156 U.S. 51, 55 , 15 S. Sup. Ct. 273. And this last rule thus by this
court established is also the doctrine upheld by the state decisions.
In the various state courts of last resort the general rule we have
just referred to, that a confession must be voluntary, is generally
recognized, although in Indiana there is a statute authorizing
confessions obtained by inducements to be given in evidence to the jury,
with all the attending circumstances, except when made under the
influence of fear produced by threats, while it is also provided that a
conviction cannot be had by proof of a confession made under inducement,
'without corroborating testimony.' Rev. St. Ind. 1881, 1802 (Rev. St.
1894, 1871). And, in the Texas Code of Procedure (article 750) it is
provided that confessions shall not be used against a prisoner at his
trial 'if, at the time it was made, the defendant was in jail or other
place of confinement, nor where he was in custody of an officer, unless
such confession be made in the voluntary statement of the accused, taken
before an examining court in accordance with law; or be made
voluntarily, after having been first cautioned that it may be used
against him; or unless, in connection with such confession, he make
statement of facts or of circumstances that are found to be true, which
conduce to establish his guilt, such as the finding of secreted or
stolen property, or instrument with which he states the offense was
committed.' The English doctrine which restricts the operation of
inducements solely to those made by one in authority has been adopted by
some state courts, but disapproved of in others, as in Ohio. Spears
v. State, 2 Ohio St. 583. Whether it is one which should be followed
by this court in view of the express terms of the constitution need not
be now considered, as it does not arise under the state of facts here
presented. In some it is also held that the fact that the accused is
examined on oath by a magistrate or coroner, or by a grand jury, with or
without an oath, will per se exclude confessions, because of the
influence presumed to arise from the authority of the examining officer
or body. People v. McMahon (1857) 15 N. Y. 384, followed in People
v. Mondon (1886) 103 N. Y. 211, 218, 8 N. E. 496; State v.
Matthews (1872) 66 N. C. 106; Jackson v. State (1879) 56
Miss. 311, 312; State v. Clifford (1892) 86 Iowa, 550, 53 N. W.
299. This doctrine as to examining magistrates is in some states
enforced by statutes somewhat similar in character to the English
statutes. 2 Tayl. Ev. 888, note 2.
In some of the states it has been held that where questions are
propounded to a prisoner by one having a right to ask them, and he
remains silent, where from the nature of the inquiries, if innocent,
reply would naturally be made, the fact of such silence may be weigned
by the jury. See authorities collected in Chamberlayne's note to 2 Tayl.
Ev. p. 5884, et seq.
Having stated the general lines upon which the American cases proceed,
we will not attempt to review in detail the numerous decisions in the
various courts of last resort in the several states treating of
confessions in the divergent aspects in which that doctrine may have
presented itself, but will content ourselves with a brief reference to a
few leading and well-considered cases treating of the subject of
inducements, and which are therefore apposite to the issue now
considered.
In the following cases the language in each
mentioned was held to be an inducement sufficient to exclude a
confession or statement made in consequence thereof: In Kelly v.
State (1882) 72 Ala. 244, saying to the prisoner: 'You have got your
foot in it, and somebody else was with you. Now, if you did break open
the door, the best thing you can do is to tell all about it, and to tell
who was with you, and to tell the truth, the whole truth, and nothing
but the truth.' In People v. Barrie, 49 Cal. 342, saying to the
accused: 'It will be better for you to make a full disclosure.' In People
v. Thompson (1890) 84 Cal. 598, 605, 24 Pac. 384, 386, saying to the
accused: 'I don't think the truth will hurt anybody. It will be better
for you to come out and tell all you know about it, if you feel that
way.' In Berry v. U. S. (1893) 2 Colo. 186, 188, 203, advising
the prisoner to make full restitution, and saying: 'If you do so, it
will go easy with you. It will be better for you to confess. The door of
mercy is open, and that of justice closed;' and threatening to arrest
the accused and expose his family if he did not confess. In State v.
Bostick ( 1845) 4 Har. (Del.) 563, saying to one suspected of crime:
'The suspicion is general against you, and you had as well tell all
about it. The prosecution will be no greater. I don't expect to do
anything with you. I am going to send you home to your mother.' In Green
v. State (1891) 88 Ga. 516, 15 S. E. 10, saying to the accused:
'Edmund, if you know anything, it may be best for you to tell it;' or,
'Edmund, if you know anything, go and tell it, and it may be best for
you.' In Rector v. Com. (1882) 80 Ky. 468, saying to the
prisoner in a case of larceny: 'It will go better with you to tell where
the money is. All I want is my money, and, if you will tell me where it
is, I will not prosecute you hard.' In Biscoe v. State (1887) 67
Md. 6, 8 Atl. 571, saying to the accused: 'It will be better for you to
tell the truth, and have no more trouble about it.' In Com. v. Nott
(1883) 135 Mass. 269, saying to the accused: 'You had better own up. I
was in the place when you took it. We have got you down fine. This is
not the first you have taken. We have got other things against you
nearly as good as this.' In Com. v. Myers (1894) 160 Mass. 530,
36 N. E. 481, saying to the accused: 'You had better tell the truth.' In
People v. Wolcott (1883) 51 Mich. 612, 17 N. W. 78, saying to
the accused: 'It will be better for you to confess.' In Territory v.
Underwood (1888) 8 Mont. 131, 19 Pac. 398, saying to the prisoner
that it would be better to tell the prosecuting witness all about it,
and that the officer thought the prosecuting witness would withdraw the
prosecution, or make it as light as possible. In State v. York
(1858) 37 N. H. 175, saying to one under arrest immediately before a
confession: 'If you are guilty, you had better own it.' In People v.
Phillips (1870) 42 N. Y. 200, saying to the prisoner: 'The best you
can do is to own up. It will be better for you.' In State v.
Whitfield (1874) 70 N. C. 356, saying to the accused: 'I believe you
are guilty. If you are, you had better say so. If you are not, you had
better say that.' In State v. Drake (1893) 113 N. C. 624, 18 S.
E. 166, saying to the prisoner: 'If you are guilty, I would advise you
to make an honest confession. It might be easier for you. It is plain
against you.' In Vaughan v. Com. (1867) 17 Grat. 576, saying to
the accused: 'You had as well fell all about it.'
We come, then, to a consideration of the
circumstances surrounding, and the facts established to exist, in
reference to the confession, in order to determine whether it was shown
to have been voluntarily made. Before analyzing the statement of the
police detective as to what took place between himself and the accused,
it is necessary to recall the exact situation. The crime had been
committed on the high seas. Brown, immediately after the homicide, had
been arrested by the crew in consequence of suspicion aroused against
him, and had been by them placed in irons. As the vessel came in sight
of land, and was approaching Halifax, the suspicions of the crew having
been also directed to Bram, he was arrested by them, and placed in
irons. On reaching port, these two suspected persons were delivered to
the custody of the police authorities of Halifax, and were there held in
confinement, awaiting the action of the United States consul, which was
to determine whether the suspicions which had caused the arrest
justified the sending of one or both of the prisoners into the United
States for formal charge and trial. Before this examination had taken
place, the police detective caused Bram to be brought from jail to his
private office; and, when there alone with the detective, he was
stripped of his clothing, and either while the detective was in the act
of so stripping him, or after he was denuded, the conversation offered
as a confession took place. The detective repeats what he said to the
prisoner, whom he had thus stripped, as follows:
'When Mr. Bram came into my office, I said to
him: 'Bram, we are trying to unravel this horrible mystery.' I said:
'Your position is rather an awkward one. I have had Brown in this
office, and he made a statement that he saw you do the murder.' He said:
'He could not have seen me. Where was he?' I said: 'He states he was at
the wheel.' 'Well,' he said, 'he could not see me from there."
The fact, then, is that the language of the
accused, which was offered in evidence as a confession, was made use of
by him as a reply to the statement of the detective that Bram's
co-suspect had charged him with the crime; and, although the answer was
in the form of a denial, it was doubtless offered as a confession,
because of an implication of guilt which it was conceived the words of
the denial might be considered to mean. But the situation of the
accused, and the nature of the communication made to him by the
detective, necessarily overthrow any possible implication that his reply
to the detective could have been the result of a purely voluntary mental
action; that is to say, when all the surrounding circumstances are
considered in their true relations, not only is the claim that the
statement was voluntary overthrown, but the impression is irresistibly
produced that it must necessarily have been the result of either hope
or fear, or both, operating on the mind.
It cannot be doubted that, placed in the position
in which the accused was when the statement was made to him that the
other suspected person had charged him with crime, the result was to
produce upon his mind the fear that, if he remained silent, it would be
considered an admission of guilt, and therefore render certain his being
committed for trial as the guilty person; and it cannot be conceived
that the converse impression would not also have naturally arisen that,
by denying, there was hope of removing the suspicion from himself. If
this must have been the state of mind of one situated as was the
prisoner when the confession was made, how, in reason, can it be said
that the answer which he gave, and which was required by the situation,
was wholly voluntary, and in no manner influenced by the force of hope
or fear? To so conclude would be to deny the necessary relation of cause
and effect. Indeed, the implication of guilt resulting from silence has
been considered by some state courts of last resort, in decided cases,
to which we have already made reference, as so cogent that they have
held that where a person is accused of guilt, under circumstances which
call upon him to make denial, the fact of his silence is competent
evidence as tending to establish guilt. While it must not be considered
that, by referring to these authorities, we approve them, it is yet
manifest that, if learned judges have deduced the conclusion that
silence is so weighty as to create an inference of guilt, it cannot,
with justice, be said that the mind of one who is held in custody under
suspicion of having committed a crime would not be impelled to say
something when informed by one in authority that a co-suspect had
declared that he had seen the person to whom the officer was addressing
himself commit the offense, when otherwise he might have remained silent
but for fear of the consequences which might ensue; that is to say, he
would be impelled to speak either for fear that his failure to make
answer would be considered against him, or in hope that, if he did
reply, he would be benefited thereby. And these self-evident deductions
are greatly strengthened by considering the place where the statements
were made, and the conduct of the detective towards the accused. Bram
had been brought from confinement to the office of the detective, and
there, when alone with him, in a foreign land, while he was in the act
of being stripped, or had been stripped, of his clothing, was
interrogated by the officer, who was thus, while putting the questions
and receiving answers thereto, exercising complete authority and control
over the person he was interrogating. Although these facts may not, when
isolated each from the other, be sufficient to warrant the inference
that an influnece compelling a statement had been exerted; yet, when
taken as a whole, in conjunction with the nature of the communication
made, they give room to the strongest inference that the statements of
Bram were not made by one who, in law, could be considered a free agent.
To communicate to a person suspected of the commission of crime the fact
that his co-suspect has stated that he has seen him commit the offense,
to make this statement to him under circumstances which call
imperatively for an admission or denial, and to accompany the
communication with conduct which necessarily perturbs the mind and
engenders confusion of thought, and then to use the denial made by the
person so situated as a confession, because of the form in which the
denial is made, is not only to compel the reply, but to produce the
confusion of words supposed to be found in it, and then use statements
thus brought into being for the conviction of the accused. A plainer
violation as well of the letter as of the spirit and purpose of the
constitutional immunity could scarcely be conceived of.
Moreover, aside from the natural result arising
from the situation of the accused and the communication made to him by
the detective, the conversation conveyed an express intimation rendering
the confession involuntary, within the rule laid down by the
authorities. What further was said by the detective? "Now, look
here, Bram, I am satisfied that you killed the captain, from all I have
heard from Mr. Brown. But,' I said, 'some of us here think you could not
have done all that crime alone. If you had an accomplice, you should say
so, and not have the blame of this horrible crime on your own shoulders."
But how could the weight of the whole crime be removed from the
shoulders of the prisoner as a consequence of his speaking, unless
benefit as to the crime and its punishment was to arise from his
speaking? Conceding that, closely analyzed, the hope of benefit which
the conversation suggested was that of the removal from the conscience
of the prisoner of the merely moral weight resulting from concealment,
and therefore would not be an inducement, we are to consider the import
of the conversation, not from a mere abstract point of view, but by the
light of the impression that it was calculated to produce on the mind of
the accused, situated as he was at the time the conversation took place.
Thus viewed, the weight to be removed by speaking naturally imported a
suggestion of some benefit as to the crime and its punishment as arising
from making a statement.
This is greatly fortified by a consideration of
the words which preceded this language; that is, that Brown had declared
he had witnessed the homicide, and that the detective had said he
believed the prisoner was guilty, and had an accomplice. It, in
substance, therefore, called upon the prisoner to disclose his
accomplice, and might well have been understood as holding out an
encouragement that, by so doing, he might at least obtain a mitigation
of the punishment for the crime which otherwise would assuredly follow.
As said in the passage from Russell on Crimes already quoted: 'The law
cannot measure the force of the influence used, or decide upon its
effect upon the mind of the prisoner, and therefore excludes the
declaration if any degree of influence has been exerted.' In the case
before us we find that an influence was exerted, and, as any doubt as to
whether the confession was voluntary must be determined in favor of the
accused, we cannot escape the conclusion that error was committed by the
trial court in admitting the confession under the circumstances
disclosed by the record.
Our conclusion that the confession was wrongfully
admitted renders it unnecessary to pass on the serious question arising
from the ruling of the trial court by which, in cross-examination, the
accused was denied the right to ask the detective as to an article of
personal property taken from the prisoner at the time the alleged
confession was had. In other words, that the accused could not bring
out, by way of cross-examination, everything which took place at the
time of the alleged confession, but was compelled, in order to do so, to
make the detective his own witness, and therefore be placed in the
position where he could not impeach him. We are also, as the result of
our conclusion on the subject of the confession, relieved from examining
the many other assignments of error, except in so far as they present
questions which are likely to arise on the new trial.
We will now briefly consider the alleged errors of this character. By
plea and supplemental plea in abatment, and by motion to quash,
defendant, preliminary to the trial, attacked the sufficiency of the
indictment, because one of the grand jurors was permitted to affirm, and
the indictment failed to state that such juror was 'conscientiously
scrupulous' of being sworn, and because the indictment recited that it
was presented upon the 'oath' of the jurors, when in fact it was
presented upon the oath and affirmation of the jurors. At the hearing of
the pleas in abatement, it appeared that, when the grand jurors were
impaneled, one of them, upon being called to be sworn, stated that he
affirmed, and declined to take an oath, and, after his fellows had been
regularly sworn, he was formally affirmed to the same duties specified
in the oath administered to the others. It is also stated in the record,
following the recital of the issuance of venires for grand and petit
jurors, that:
'In obedience to the said order of court, and to the venires issued
thereunder, the following named grand jurors attended on the 15th day of
October, A. D. 1896. On that day the said grand jurors were duly
impaneled as the grand jury for the October term of this court, A. D.
1896. All of said grand jurors, being impaneled aforesaid, were duly
sworn, except Grand Juror William Merrill, Junior, of West Newbury, who
duly affirmed, twenty-one grand jurors being in attendance.'
In section 1 of the Revised Statutes of the United States it is
provided, among other things, that, in determining the meaning of the
Revised Statutes, 'a requirement of an 'oath' shall be deemed complied
with by making affirmation in judicial form.' Section 800 also provides
that:
'Jurors to serve in the courts of the United States, in each state
respectively, shall have the same qualifications, subject to the
provisions hereinafter contained, and be entitled to the same
exemptions, as jurors of the highest court of law in such state may have
and be entitled to at the time when such jurors for service in the
courts of the United States are summoned; and they shall be designated
by ballot, lot, or otherwise, according to the mode of forming such
juries then practiced in such state courts, so far as such may be
practicable by the courts of the United States or the officers thereof.
And for this purpose the said courts may, by rule or order, conform the
designation and impaneling of juries in substance to the laws and usages
relating to jurors in the state courts, from time to time in force in
such state. This section shall not apply to juries to serve in the
courts of the United States in Pennsylvania.'
Pub. St. Mass. 1882, c. 213, 6, provides as follows:
'Sec. 6. When a person returned as grand juror is conscientiously
scrupulous of taking the oath before prescribed, he shall be allowed to
make affirmation, substituting the word 'affirm' instead of the word
'swear,' and also the words 'this you do under the pains and penalties
of perjury,' instead of the words 'so help you God."
And section 3 of chapter 30 of the same statutes provides as follows (
page 58):
'In the construction of statutes the following rules shall be observed,
unless such construction would be inconsistent with the manifest intent
of the general court or repugnant to the context of the same statute,
that is to say: ... Fourteenth. The word 'oath' shall include
'affirmation' in cases where, by law, an affirmation may be substituted
for an oath.'
The objection that the indictment recited that it was presented 'upon
the oath' of the jurors, when the fact was that it was presented upon
the 'oath and affirmation' of the jurors, is without merit. Waiving a
consideration of the question whether, under the provisions of the
statutes to which reference has been made, the word 'oath' might not
properly be construed as meaning either 'oath' or 'affirmatton,' the
recital alluded to was purely formal, and, if defective, was open to
amendment. The record disclosing the fact that all of the grand jurors
were duly sworn except Grand Juror William Merrill, Jr., who was 'duly
affirmed,' the defendant could not have been prejudiced by the form of
the statement made in the indictment, and the defect, if any, was
rendered harmless by the curative provisions of section 1025, Rev. St.
The further objection that neither in the indictment nor in the proof at
the hearing of the pleas in abatement was it affirmatively stated or
shown that Grand Juror Merrill, before being permitted to affirm, was
proven to have possessed conscientious scruples against taking an oath,
is practically concluded by the disposition made of the objection just
passed upon, and is rendered nugatory by the terms of section 1025, Rev.
St. Further, the mode of ascertaining the existence or nonexistence of
such conscientious scruples was committed to the discretion of the
officer who affirmed the juror, and such affirmation conclusively
established that the officer had properly exercised his discretion. Com.
v. Fisher, 7 Gray, 492; State v. Adams, 78 Me. 486.
The remaining assignments which we deem it proper to notice relate to
the overruling of objections interposed to questions propounded to
certain witnesses in the character of experts. Some of these objections
were made to hypothetical questions asked a number of sailors, reciting
the condition of things assumed to have been established by the evidence
as existing about the time of the killing, viz. the speed of the Herbert
Fuller, the condition of her sails, direction of wind, etc., and inquiry
as to the effect it would have on the vessel if the wheelman had taken
his hands off the wheel, and what effect would be produced by lashing
the wheel under similar conditions. These questions were evidently
intended to supplement the testimony of Brown, who swore that he stood
with both hands on the wheel during the time between 12 and 2 o'clock,
and, consequently, when the murders were committed. The questions were
competent, as the testimony sought to be elicited was relevant to the
issue. Aside from the testimony of Brown, the evidence against Bram was
purely circumstantial, and it was clearly proper for the government to
endeavor to establish, as a circumstance in the case, the fact that
another person who was present in the vicinity at the time of the
killing could not have committed the crime. The testimony sought to be
adduced had this tendency, and the fact that it might operate indirectly
to fortify the credit of such person as a witness in the cause could not
affect its admissibility. An objection to a question asked of a medical
witness, whether, in his opinion, a man standing at the hip of a
recumbent person, and striking blows on that person's head and forehead
with an ax, would necessarily be spattered with or covered with some of
the blood, was also properly overruled. We think the assumed facts
recited in the question were warranted by the proof in the case, and
that the evidence sought to be elicited from the witness was of a
character justifying an expression of opinion by the witness, the jury,
after all, being at liberty to give to the evidence such weight as in
their judgment it was entitled to. Hopt v. Utah, 120 U.S. 430 ,
7 Sup. Ct. 614.
The judgment is reversed, and the cause remanded,
with directions to set aside the verdict and to order a new trial.
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