Daniels v. State , 78 Ga. 98 ( 1886 )

Hall, Justice.

1. The indictment charges the defendant with breaking and entering the depot building of the Western and Atlantic Railroad Company, where valuable goods were contained, with intent to steal, etc. The proof showed that the outer door was left open, but that after getting into the building, which had numerous apartments, the doors to each of these, in which the postage stamps belonging to the company were deposited, were broken and entered and they were stolen and carried away by the defendant. It is now insisted that neither the charge in the indictment nor the facts in proof made out the offence of burglary against the defendant; that in order to fix legal guilt upon him, it should have been alleged and proved that he effected his entrance by breaking the door through which he got into the house, and not by showing that, after entering it, he broke either of the doors of the departments in it, where the valuables in question were found. Such, however, is not our apprehension of the law. It is well-settled, by a number of cases, that where a party is indicted for breaking and entering an out-house within the curtílage or protection of a mansion or dwelling, the burglary should be laid as having been done in the dwelling-house. 1 Wharton’s Cr. L. §815, and citations. If this be true as to an out-house within the protection of the mansion or dwelling-house, a fortiori would it be so as to an apartment in the house, a party’s place of business in which his goods, wares, etc. were stored or contained, and which was broken and entered with an intent to commit a larceny upon the articles of value therein contained. This indictment does not allege in terms that the depot was the place of business of the railroad company, but no specific objection was taken to it on this account, and had there been one, we are not prepared to hold that it was tenable, as the offence, though not charged in the terms and language of the code, is so plainly set forth that its nature could be easily understood by the jury. It is always best, however, to avoid cavil or dispute, to conform to the very words of the statute on which the accusation is based. On this point, there was no error in the instruction given by the court.

2. Nor was there any error as to the defence, attempted to be set up, that the defendant had been previously convicted and punished for the act constituting the offence for which he was then on trial. There had been numerous pilferings of stamps and other articles from this and an adjacent building within the curtilage, so to speak, extending over a period of three or four weeks; some of them undoubtedly amounted to nothing more than larceny from the house, and of that offence the defendant had been convicted, but it is neither alleged nor shown by proof that the one for which he was tried and convicted was the burglary for which he was then being tried. The plea is general, when, by the requirements of the law, it should have been special; it necessarily consists of two matters, viz; first? matter of record, to-wit, the former indictment and conviction ; and secondly, matter of fact, to-wit, the identity of the person convicted and of the offence of which he was convicted. To support the first matter, it is necessary to show that the defendant was legally convicted, on an indictment free from error, in a court having jurisdiction. These latter questions are to be determined by the court, but issue may be taken, not only upon the identity of the offender and the offence, but upon the existence of the record, and either or all these issues would have to be submitted to the jury. Wharton Or. Plea, and Pr. §§477-483. In these essential particulars, this plea is altogether deficient, nor is the proof offered to sustain it less uncertain, for even the former indictment upon which it was alleged that the defendant was convicted, although generally referred to as exhibit A attached to the evidence, does not appear in this record. In its absence, we cannot determine that the court committed error in the disposition he made of it; the fair presumption is directly the contrary of this.

3. The remaining question is one of much more difficulty. Certain confessions of the defendant were given in evidence. After they had gone to the jury, it was ascertained that they had been improperly obtained, the defendant having been told.that he had best make them. No preliminary investigation was had to test their competency, but when the testimony was nearly all in, his counsel moved to reject them; but while admitting that they had been obtained in an improper manner, the judge refused to reject them unconditionally, carefully instructing the jury as to the circumstances, extent and purposes for which they should be treated as evidence, and if none of the facts which render them evidence existed, directing them to be rejected altogether. He informed the jury that if nothing more than the confessions thus improperly obtained had appeared in the evidence, he would not have permitted them to consider them at all, but that where the confession pointed to a substantive fact, from which guilt could be inferred or established, the law deemed it competent proof, and cautioning them that inference was not conviction, and that the independent facts brought to light by the confession must be established by other proof than the confession itself; they were permitted to consider the confession as a circumstance in connection with the facts thus developed in reaching a conclusion as to his guilt, of which they must be satisfied from all the evidence, including the fact that the confession was made beyond a reasonable doubt. “ Although confessions made by threats or promises” (says Wharton’s Criminal Evidence, §678) “ áre not evidence, yet if they are attended by extraneous facts, which show that they are true (the italics ours), any such facts thus developed, and which go to prove the crime of which the defendant was suspected, will be received as testimony; e. g. where the party thus confessing points out or tells where the stolen property is, or where he states where the deceased was buried, or gives a clew to other evidence which proves the case. But if, in consequence of the confession of the prisoner thus improperly drawn out, the search for the property or person in question proves ineffectual, no proof of confession or search will be received. And in case of larceny, the property must be identified by other evidence as that which was actually stolen.” This succinct statement of the law is supported by a number of cases, English and American, referred to and cited in the foot-notes to the text. Two of these we especially invoke; Laros vs. The Commonwealth, 84 Penn. St. 200, where Chief Justice Agnew, who delivered the opinion of the court, pointedly says (p. 209), “ An admission, not competent as a confession, is admissible when its truth is proved by the revelation of the fact by search.” See also Sampson vs. The State, 54 Ala. 241. The discovery made in consequence thereof involves the admission of the confession so far as it relates to such discovery. The reason for rejecting confessions improperly obtained is, their liability to prove false by reason of the motive which induces them, but when they are corroborated and. confirmed by the discovery to which they lead, the reason, for their rejection ceases, and rations csssante, ipsa lex cessat. So far as we can understand the scope and bearing of this charge, it goes to this extent and no further.

The failure to test the competency of the confession by an inquiry preliminary to their admission, thereby allowing them to make an improper impression upon the minds of the jury, doubtless influenced the presiding judge to deliver this charge, limiting and restraining the force and effect which such admissions would have without it, and was, in fact, more favorable to the defendant than if the motion of his counsel had prevailed and the testimony, without more, had been rejected. We might and probably ought to have declined to consider the general exception made to this charge in which no specific error is alleged or pointed out. If the case, in our opinion, had not been clear upon the proof, we should have been less reluctant to interfere and to arrest the execution of the sentence.

Judgment affirmed.