Grimsinger v. State , 44 Tex. Crim. 1 ( 1902 )

Appellant insists that the court erred in admitting in evidence the confession of Mrs. Grimsinger, made by her before the grand jury, and as testified to by the witness Cook. Appellant urges that said confession made before the grand jury was not admissible in evidence on the ground that the truth or falsity of any statement made by her, not being an issue, it was not competent for the State to go into the grand jury room and produce her confession against her. This contention was formerly the law in this State. Hines v. State, 37 Tex. Crim. 339; Gutgesell v. State, 43 S.W. Rep., 1016; Christian v. State, 40 Tex.Crim. Rep.. These cases, however, were overruled in Wisdom v. State, 42 Texas Criminal Reports, 579, from which I dissented and therein gave my views fully upon the question. The law, however, was settled in that case, and has since been followed (Giles v. State, 43 Tex.Crim. Rep.), and no more need be said concerning this objection. Appellant further excepted to said confession on the ground that, notwithstanding the warning may have been given, the same was not free and voluntary, as required by law. It is insisted that said confession was not free and voluntary, because an oath was administered to her in the grand jury room. A majority of the court maintain that the oath administered to Mrs. Grimsinger as a witness in her own case in the grand jury room does not vitiate the confession. And in support of their views they cite Jackson v. State, 29 Texas Criminal Appeals, 458, and Salas v. State, 31 Texas Criminal Reports, 485. An examination of the first named case will show that it is not in point, inasmuch as the confession there was admitted, notwithstanding it was sworn to by defendant; but this was on the ground that in connection with such admission the party made statements of facts and circumstances that were afterwards found to be true, which conduced to establish his guilt. This is provided for by statute. It is true, in the Salas case, that the sworn statement, made before the examining court was admitted in evidence, but the able judge who rendered the decision in that case did not enter into a discussion of our statute regulating voluntary statements before examining magistrates. Article 283, Code of Criminal Procedure, provides, among other things, that such voluntary statement shall not be sworn to by him. It would seem to me, if the statute means what it says, when it provides that a voluntary statement shall not be sworn to by an accused person, that if it is sworn to, it is not a voluntary statement as authorized by law, and ought not to be admitted in evidence. When the Legislature enacted our statute on the subject, it had in view the common law rule, which rendered the confession of a party before an examining magistrate, if made under oath, inadmissible as not being voluntary on account of the oath. People v. McMahon,15 N.Y. 384. I refer to this case for a full discussion of the subject, supported by the authorities cited; and I believe it has a direct bearing on this case, so far as this question is concerned. It occurs to me that if a statement made by an accused person before an examining court, if sworn to, is not admissible on that account, then, by a stronger reason, when a statement of an accused person taken before the grand jury, and is there made under oath, such statement should not be admissible.

But concede that the oath administered to Mrs. Grimsinger, when she was carried before the grand jury, did not invalidate her statement as a free and voluntary confession, still, under the testimony in this case as a predicate for the confession, I do not believe that the same was admissible as a free and voluntary confession, because of her environments or the facts and circumstances which surrounded her at the time she made the confession. In order to present this matter, I will briefly review the circumstances under which this confession was extorted from appellant. This homicide was committed on the night of the 16th day of January, 1901. Early the next morning appellant was arrested by an officer and taken into custody. (See record, Stevens' and Green's testimony.) About 9 o'clock she was carried by the officer before Mr. Adams, justice of the peace. There she was held in custody for several hours, being examined by said justice and the county attorney as to what she knew of the alleged murder. It does not appear that she was either sworn or warned by these officers. In their endeavor, however, to find from her what she knew about the murder of her husband, the justice of the peace informed her, in the presence of the county attorney, and evidently with his sanction, that it would be better for her if she would tell the whole truth about the murder. She was informed by him "that the circumstances of the case were peculiar, and the thing for her to do in order to get out of it and have it to be light on her, was to tell us the whole truth about it." Notwithstanding their zealous endeavor, it does not seem they were successful in inducing her to make the confession. After their futile attempt, about 1 or 2 o'clock, she was conveyed to the jail by the officer, and was there, according to the testimony, placed incommunicado; that is, the jailer and his deputies were instructed not to permit anyone to see or talk with her. Shortly after she was placed in jail, Mr. Newton, her attorney, endeavored to procure an audience with her, which was refused. He then sought the district judge, in order to induce him to permit him to have an interview with his client. It seems that he got in communication by telephone, or otherwise, with the judge. In the meantime, however, the county attorney telephoned to the judge not to permit an interview until he should see him. Meanwhile the sheriff and county attorney were busy procuring a reassembling of the grand jury, evidently for the purpose of carrying defendant there to testify in her own case. Some time in the evening, about 4 o'clock, the district judge came to the courtroom and Mr. Newton (appellant's counsel) had an audience with him for the purpose of procuring permission to see appellant. It appears the judge was about to grant the order, when appellant, in charge of an officer, was seen passing through the room on her way to the grand jury room. The judge informed him that he could see her after she should be brought out of the grand jury room. The judge states that he permitted her to be sent before the grand jury before he allowed defendant's counsel to see her. The county attorney was also present at this interview. When she was carried before the grand jury she was there sworn as a witness to testify concerning the murder of deceased, John Grimsinger. She was there warned in accordance with our statute on the subject, and was then examined and cross-examined by members of the grand jury and county attorney in regard to the case. During the progress of the examination, or cross-examination, whichever it may be termed, she was told she would have to tell the truth; that the grand jury could only help her if she told the truth. This was told her while she made or was making some conflicting statements. After she had made the statement, and before she left the grand jury room, she waited, — she seemed to hesitate; and she was then asked whether she had anything more to say, and she then made some remark about hoping the grand jury would be light on her. The judge, in explaining this bill, says he did not admit any of her statements before the grand jury after she was told by one of the members that if she would tell the truth they would be light on her. These were substantially, as I understand, both from the record and the opinion of my brethren, the facts and circumstances which surrounded appellant when she made the statement in the grand jury room which was used against her. Our law, following the rule of the common law, carefully scrutinizes the circumstances under which the confessions are made, and rejects confessions altogether unless entirely voluntary. After the arrest, our statute safeguards the accused person against the inquisitorial powers of officers and courts. Not only is a warning required to be given before the evidence may be used against the accused, but it must also appear, in addition thereto, that the statement was not induced by coercion or persuasion; and whenever the question is raised as to the free and voluntary character of a confession, while it is primarily for the decision of the court, the burden is on the State to show that it was free from any improper influences. As was said in Thomas v. State, 35 Texas Criminal Reports, 178, "The burden is on the prosecuting power to show that the confession was voluntary. A confession made with no expectation of bringing good or averting evil, is termed a voluntary confession. The real question being in every case whether the confessing mind was influenced in a way to create a doubt of the truth of the confession. The burden is on the State, and the doubt must be excluded. A confession involuntarily uttered to bring temporal good or avert temporal evil, even when the contemplated benefit is small, must be rejected. The circumstances under which the confession is made are of very great importance; and they must be looked to in every case, and when this is done, and there is nothing pointing to the motive prompting the confession, it will be received. Now, when there is an express or implied promise to aid a suspected person, or a threat of temporal injury, or when the suspected person is told that it will be better for him to confess, this does not always solve the question. It is true that the inducement under which the confession was uttered is of prime importance; but it is not always decisive. The inducement and surrounding circumstances decide the question. The inducement may not be sufficient to show the motive for the confession; but, when read in the light of the surrounding circumstances, may be ample proof of the truth of the confession." I quote from Bram v. United States, 168 United States, 532, on the same subject as follows: "The rule is not that, in order to render the statement admissible, the particular communication contained in the statement must be voluntarily made, but they must be sufficient to show that the making of the statement was voluntary; that is, if from the causes which the law treats as legally sufficient to engender in the mind of the accused a hope or fear in respect to the crime charged, the accused shall not be involuntarily impelled to make a statement when but for the improper influences he would have remained silent." And again, I quote as follows: "Although the facts would, when isolated from the other circumstances, not be sufficient to warrant an inference that the influence compelling the confession had been exerted, yet when taken as a whole, they may give room to the strongest inferences of undue influence."

If the doctrine here laid down be correct, the fact that an accused person may be warned with all the solemnity required by the statute that what he should say may be used against him, and that no statement whatever can be compelled, does not of itself always solve the question; but this warning is to be viewed in the light of the surrounding circumstances. If these show that the party was entirely free in making the statement, then the warning given is the safeguard authorizing the admission of the confession. If, on the other hand, every fact and circumstance tends to show either coercion or persuasion, then the statement is not admissible, no matter how freely or solemnly may have been the warning given. If this doctrine is not correct, but the warning alone guarantees the admission of the statement as a confession, then it would follow by the same logic that a mob may take a prisoner from jail at midnight, convey him to a secluded spot, place a rope around his neck, with the other end thrown over a limb of a tree, then warn him under the statute and ask for his confession; and if through terror he gives it, it will be received in the courts of the country. I take it that we are authorized to take into consideration not only the warning, but all the facts in evidence tending to show the condition of appellant's mind at the time she made the statement. It may be that, as explained by the judge, what was said to appellant by one of the members of the grand jury, that if she would tell the truth the grand jury would help her, made as explained by the judge after she had given her inculpatory statement, would not of itself exclude the testimony; but when we look back across the record to a promise of similar import made by the justice of the peace in the morning, in the presence of and with the assent of the county attorney, and when we recall the fact that this same county attorney was present at the examination in the grand jury room, and that appellant was mindful of his presence and authority in the premises, it shows that when she made the statement her mind must have been influenced by a similar promise made to her by one in authority in the morning, and who was then present.

In addition to this we must also remember that appellant after her examination in the morning before the justice had been placed incommunicado; that is, she was not allowed to consult with anyone; not only were her friends refused permission to communicate with her, but she was deprived of the privilege of consulting with her counsel. It is said, however, that this occurred without the knowledge of appellant, and consequently could have no effect on her mind, as she did not know that an attorney had been employed for her. (The record shows that he was employed by her brother.) While this is true, yet it is a significant fact tending to show the coercive means that were being used by the officers in charge in order to compel what should be a voluntary confession. Evidently she knew that she was isolated and she was led to believe by the officers through this means that she was abandoned by her friends. She was not permitted to know that they had employed counsel for her. I do not think that any question can be raised at this day as to the right of her attorney to consult with her at the jail, and to advise her at every step in the proceeding being taken against her. To hold otherwise would be in effect to deny the right of counsel altogether. Her attorney seems to have taken this view of the matter, and to have insisted on his right. In the meantime an effort was evidently being made by the officers to thwart this purpose, until appellant should be taken without her consent as a witness in her own case before the grand jury. That the attorney may have advised her to keep her own counsel is no answer to the proposition. As her lawyer, he had a right to tell her "that in all criminal prosecutions the accused shall not be compelled to give evidence against herself." Art. 1, sec. 10, Bill of Rights. But he was not afforded this privilege; but sees his client taken without her or his consent before the grand jury to testify against herself in her own case. We know that, if during the trial the State had suggested that appellant be placed upon the stand in order to testify, this alone would require a reversal. Art. 770, Code Crim. Proc. The Legislature, when it came to authorize a defendant to testify in his or her own case, safeguarded the right, so that it could not be used to the prejudice of a defendant. Yet here the spectacle is presented of the State being permitted to do by indirection what it could not have done by direct proceeding. The State could not require Mrs. Grimsinger to testify against herself in her own case on the trial thereof; but by this proceeding the State is permitted, without the consent of appellant, to take her before the grand jury as a witness in her own case, and there swear her, and because she was warned, introduce her statement in evidence against her. It occurs to me that this is a more dangerous assault upon the rights of defendant under the Constitution, being before a secret tribunal, than if it had been consummated in the open trial before the jury and within the public view. As I have recounted, not one, but every circumstance transpiring on that eventful morning was calculated to inspire appellant with either hope or fear, and to show her state of mind, the last expression used by appellant before she left the grand jury room was the expression of her hope that they would be light on her. Doubtless she expressed this because hope had been held out to her, while her fears were quickened and her apprehensions alarmed by the methods adopted in securing her statement. I do not believe in the administration of the law it was ever intended under our system to resort to such methods, which smack too much of the inquisition; and I fear it will constitute a bad precedent.

I note in this connection that some cases are referred to where the testimony of confessions made before grand juries has been admitted in evidence, to wit: Paris v. State, 35 Tex. Crim. 82; Thomas v. State, 35 Tex.Crim. Rep.; Gardner v. State, 28 S.W. Rep., 470. These cases, however were rendered before the Hines and Gutgesell cases heretofore cited, and followed a misconcption of what was stated in Clanton's case, 13 Texas Criminal Appeals. These cases show that the appellant voluntarily went before the grand jury. But it is not believed that any case can be found where an accused has been taken without her consent to testify before the grand jury in her own case, although the party was warned that such testimony can be used against her.

There are other questions discussed in the opinion to which I do not agree. I believe the court should have given the charge predicated on defendant's theory, that she was not present at the time of the homicide, and did not agree nor consent to the killing of her husband and did not act in aid thereof while it was being done. But I do not deem it necessary to enter into discussion of these matters, as I believe the case should have been reversed on account of the improper admission of appellant's confession as heretofore discussed.