State v. Browning , 206 Ark. 791 ( 1944 )

I respectfully dissent from the majority opinion in this case.

It is conceded that Browning was taken into custody by officers without a warrant of arrest, that he was not carried by them before a magistrate, and that he was, after being arrested, detained by the officers in a room in the old penitentiary building at Little Rock, which seems to have been specially prepared for what is euphemistically called "questioning" of suspects. At the end of constant grilling by officers in relays for about nine hours Browning is said to have made the confession, the admissibility of which is involved herein.

Section 3729 of Pope's Digest of the laws of Arkansas provides: "Where an arrest is made without a warrant, whether by a peace officer or private person, the defendant shall be forthwith carried before the most convenient magistrate of the county in which the arrest is made, and the grounds on which the arrest was made shall be stated to the magistrate. . . ."

Now what did the legislature mean when it ordered that a person arrested without a warrant should be taken "forthwith" before a magistrate? Did the legislature intend that the officer might detain or confine the arrested person until such time as the officer might deem it proper to take the accused before a magistrate?

In Webster's New International Dictionary this definition of "forthwith" is given: "Immediately; without delay; directly; hence, within a reasonable time under the circumstances of the case; promptly and with reasonable dispatch. . . ."

The meaning of "forthwith," as used in an assignment for the benefit of creditors, was considered by this court in the case of Lincoln v. Field, 54 Ark. 471,16 S.W. 288. The lower court had held that the word "forthwith" was synonymous with the word "immediately," and the holding of the lower court was sustained by this court, which quoted with approval Bouvier's definition of "forthwith": "As soon as by reasonable exertion, confined to the object, it may be accomplished."

The duty of an officer who makes an arrest without warrant was clearly defined by us in the case of Bryan v. Comstock, 143 Ark. 394, 220 S.W. 475, 9 A.L.R. 1346. In that case it appeared that Bryan, a deputy constable, had arrested Comstock, without a warrant, about 11 o'clock on Sunday night, for violating a traffic law. Instead of carrying Comstock before a magistrate, Bryan placed him in jail, where he remained for about forty minutes before he was released. Comstock sued Bryan for damages for false imprisonment and recovered judgment for $500 in the lower court. Bryan contended that, on account of the lateness of the hour and the fact that it was Sunday night when the arrest was made, he was not obliged to carry Comstock "forthwith" before a magistrate. This court, however refused to allow this as an excuse for disobedience by the officer of the plain provisions of the law, and affirmed the judgment against Bryan.

By 8 of art. II of the Constitution of Arkansas it is provided that no person shall "be deprived of . . . liberty . . . without due process of law." And by 21 of the same article this additional guaranty is given: "No person shall be taken or imprisoned . . . except by the judgment of his peers or the law of the land." This latter section of our constitution was taken almost verbatim from the Magna Charta, great bulwark of liberty among English speaking people since June 15, 1215, when a wicked and tyrannical king was brought to bay by his people and forced to covenant that "no freeman shall be taken or imprisoned . . . but by lawful judgment of his peers, or by the law of the land."

Similar provisions forbidding the unlawful taking or detention of citizens are found in the fifth and fourteenth amendments to the Constitution of the United States.

Browning's detention was in violation of his rights under the constitution and statutes of this state. This is not seriously disputed, but it is argued that this did not render inadmissible the confession obtained from him as a result of his illegal confinement. To sustain this contention, cases heretofore decided by this court holding, in effect, that evidence illegally obtained may nevertheless be used in criminal prosecutions are cited. Those cases relate to illegal searches and seizures by officers and the use of evidence thereby obtained. A distinction between using as evidence in court contraband articles illegally seized by officers and using a confession made by an accused person while being illegally confined might well be made. Certainly, there is a difference in the degree, if not in the quality, of the wrongs committed by the officers in the two instances; but, in my view, no such distinction ought to be made. The violation of the law by the officer, the trespass on the fundamental rights of the citizen, should in each case stamp the transaction as illegal throughout and deny to the state the right to use against the accused evidence obtained solely by a defiance of the law on the part of the state's representative. From a grievous wrong, no right adverse to the wronged person ought to arise. And the law, when a trespass has been committed by an officer against a citizen in a case of this kind, ought to restore, as far as possible, the parties to the respective positions occupied by them before the wrong was done. The citizen whose security of person or property, guaranteed to him under the constitution, has been invaded ought to have his liberty, or his property, as the case may be, restored to him, and the state, whose officers committed the wrong, should be deprived of any offensive weapon against the offended citizen, by way of evidence, that may have been obtained by or as a result of the wrongdoing of the officers. To allow any other outcome of the matter is simply to put a premium upon grave misconduct by those whose official oaths require then to protect, not to oppress, the citizen.

If the previous decisions of this court can be said to authorize the use of a confession obtained during illegal detention of an accused person, such decisions ought to be overruled now. They relate only to procedural matters and cannot be held to be rules of property. Certainly there is no sort of vested right on the part of the state in erroneous judicial decisions which permit violation of the constitutional and statutory rights of the citizen.

The ruling of the Supreme Court of the United States in the case of McNabb v. United States, 318 U.S. 332,63 S. Ct. 608, 87 L. Ed. 819, not being based upon the fourteenth amendment to the federal Constitution, is, of course, not binding upon us. But the federal statute upon which that decision was based, the statute requiring that an accused person arrested by a federal officer be taken before a commissioner (a magistrate), is similar in substance to our statute (3729) quoted above. The opinion in the McNabb case was based on facts as to the confession much like those shown in the case at bar. I can find no satisfactory answer to the reasoning by which Mr. Justice FRANKFURTER, speaking for the court, arrived at the conclusion in that case that the confession of McNabb ought not to have been received in evidence.

Of course not every confession made to an officer before the accused person is taken before a magistrate should be rejected. An accused person, while he is being arrested, or while he is being taken before a magistrate, or afterwards, may rightfully be questioned by officers, and no good reason exists for excluding what is said by the defendant under such circumstances, unless the statement of the accused is induced improperly by coercion, threats or promises. But when the arresting officer deliberately flouts the law and, instead of taking the defendant forthwith before a magistrate, as the law says he shall do, carries the defendant to some secret place, holds him incommunicado, and by means of and as a natural result of this illegal detention obtains a confession, such confession, in my opinion, is so tainted with illegality as to require its exclusion.

I am authorized to state that Mr. Justice KNOX joins in this dissent.