State v. Crank , 105 Utah 332 ( 1943 )

Originally the CHIEF JUSTICE, Mr. Justice McDONOUGH and myself each wrote separate concurring opinions, each covering in general all the propositions discussed in the main opinion, but each discussing questions not discussed by the others. On request, in order to eliminate overlappings, I am writing this opinion embodying the ideas of those three tentative opinions and to some extent the words of the other justices. While generally we agree with the result reached by Mr. Justice LARSON in the main opinion, we have doubts as to some of the things said therein and are therefore limiting this concurrence to views herein expressed.

We concur in the holding that the information stated 1 a public offense.

We concur in the conclusion that failure to provide counsel at the preliminary hearing and failure of the defendants to specify that they waived counsel did not vitiate the preliminary hearing. We have some doubt as to some of 2, 3 the statements made in the opinion under heading II but having given our conclusion we need not discuss the reasoning of those statements. We must not lose sight of the fact that a preliminary hearing is what it purports to be — a hearing to determine whether there is reasonable cause to believe that a crime has been committed and that the defendants committed it. It is not a technical proceeding. Certain constitutional rights of the accused must be observed but the hearing may be informal and we are by no means certain that hearsay evidence is inadmissible. The proceeding is an inquiry — not a trial. In Federal Grand Jury proceedings the accused is not even present and hearsay evidence which appears to throw light on the inquiry is admitted. There is no one to gainsay its admission. While the procedure before a magistrate is more strict, the defendant being present — especially in regard to the matter of safeguarding his rights usually best done by attorney representation — so he may not be made to incriminate himself — the proceedings still take on the form of an inquiry under safeguards and not a trial. We seem to sense in our decisions a growing tendency to apply to preliminary hearings more and more of the formality and requisites of a trial. We only wish here to sound a note of warning. We agree that in this case we need not decide whether if Ashcroft himself had not testified there would have been sufficient competent evidence to bring over or invoke the jurisdiction of the District Court. That is largely in the discretion of the magistrate. Nor do we consider it necessary in this case to lay down any rules in reference to the admission of hearsay evidence in a preliminary hearing.

We concur in the conclusion that there was evidence independent of the confession of the corpus delicti. There is no rule that such evidence cannot be admitted because the confession leads to its discovery. To borrow the words 4, 5 of Mr. Justice Wolfe in his dissening opinion inState v. Johnson, 95 Utah 572, at page 589, 83 P.2d 1010, at page 1018:

"The procedure is not to look at the confession and then at the independent evidence of corpus delicti to see if it is corroborated, by the latter, but to put one's hand over the confession as if it had never been introduced and see if there is independent evidence of the two elements of the corpus delicti."

We agree that the trial court erred in receiving in evidence the defendants' confessions upon the State merely making a prima facie showing that such confessions were voluntary, without first hearing all of the evidence of both sides on that question and determining therefrom whether such 6 confessions were in fact voluntarily made. The decision of the trial court was no doubt made in reliance on statements made in State v. Wells, 35 Utah 400, 100 P. 681, 136 Am. St. Rep. 1059, 19 Ann. Cas. 631, quoted from in the main opinion and which has been cited with approval in State v. Johnson,76 Utah 84, 287 P. 909; State v. Dunkley, 85 Utah 546,39 P.2d 1097; State v. Johnson, 95 Utah 572, 83 P.2d 1010; State v.Masato Karumai, 101 Utah 592, 126 P.2d 1047. It was not necessary in any of those cases for the court to decide this question and what the court therein said on this question was clearly dicta.

By disapproving what is said on this question in the case ofState v. Wells, supra, doubt is cast on a number of other propositions which for the guidance of the court in the new trial should be here definitely decided. From the decision that the court must, where the question of the voluntariness of a confession is raised, first determine from all the evidence of both sides thereon, whether the confession is voluntarily made, we have presented two further questions: (1) Does the State have the burden of persuadin the court that the confession was voluntary, or does the defendant have the burden of persuading the court that it was involuntary? (2) What is the function of the jury in determining whether the confession was voluntary, and the weight and credit to be given thereto?

Taking these questions up in the order above stated, we agree with the main opinion that: "If on a consideration of all of the evidence on the matter the court does not find the confession to be voluntary it should be excluded." Thus 7 the State has the burden of persuading the court that the confession was voluntary by a preponderance of all of the evidence on that question. An examination of the authorities discloses that there are many different views on this subject. Wharton's Criminal Evidence, 11th Ed., Vol. 2, p. 986, Sec. 595, states:

"Most authorities and jurisdictions have asserted the rule that a confession sought to be introduced into evidence is presumed to be voluntary. This is equivalent to statements made by some courts that the confession is prima facie admissible."

In Wigmore on Evidence, 3rd Ed., Vol. 3, Sec. 860, it is stated that five distinguishable attitudes are found represented in the rulings in regard to this matter. They are listed as follows:

"(1) The original English rule was that the prosecution (offering the confession) must show that it was made voluntarily, i.e., without any improper inducement from the person receiving the confession; and this rule is accepted in most American jurisdictions.

"(2) The English judges occasionally went still further, with a rule that where the accused had been in charge of a person in authority other than the one to whom the confession was made, the prosecution must show the absence of an inducement from the former as well as from the latter.

"(3) The view has also found representatives that the prosecution must, not merely in the above circumstances, but in all cases, show the absence of an inducement for any one else and not merely from the person receiving the confession. This is an absurd extreme.

"(4) A few jurisdictions regard the confession as `prima facie' admissible, and require the defendant to show that the alleged improper inducement existed. This is the practical and natural rule; for if there is any reason to object to the confession, no one can know it better than the defendant. * * * Of course, he should be admitted to testify to this question of fact preliminary to the court's ruling, without waiving his privilege.

"(5) A modern English ruling takes a middle path, and seems to receive the confession unless attacked by evidence of an improper inducement and then in case of doubt leaves upon the prosecution the burden of convincing the court of the admissibility."

It is our opinion that paragraph (5) of the above quotation from Dean Wigmore's Evidence states the better rule.

The trial court having decided from the evidence that the confession was voluntarily made, the appellate court will not disturb that finding in the absence of an abuse of its discretion where there is substantial evidence from which it could reasonably so find. See Wigmore on Evidence, Third Ed., 8 Vol. III, Sec. 862; Osborn v. People, 83 Colo. 4,262 P. 892; Mangum v. United States, 9 Cir., 289 F. 213;State v. Gorham, 67 Vt. 365, 31 A. 845; State v. Cross,72 Conn. 722, 46 A. 148. The case of State v. Wells, supra, and other cases above cited as approving it, also hold to this doctrine, although they do not require the trial court to decide the question of voluntariness of the confession but only to require a prima facie showing that it was voluntary. Our decision in this case is not contrary to this rule because here the trial court refused to determine the question of whether the confession was voluntary and only determined that the State had made a prima facie showing to that effect. The defendants were entitled to have the confessions excluded unless the court was convinced by a preponderance of the evidence that it was voluntary.

What is the function of the jury in determining 9, 10 whether the confession was voluntary, and the weight and credit to be given to it? In State v. Wells, supra [35 Utah 400, 100 P. 683, 136 Am. St. Rep. 1059, 19 Ann. Cas. 631], we said:

"* * * when the evidence is conflicting or is open to different inferences, the question of voluntariness should be left to the determination of the jury, like every other question of fact, under instruction to wholly disregard the evidence of the confession, unless the jury are convinced and find, upon all the evidence adduced, that it was voluntary."

To the same effect are State v. Bates, 25 Utah 1,69 P. 70; State v. Johnson, 76 Utah 84, 287 P. 909; State v.Dunkley, 85 Utah 546, 39 P.2d 1097; State v. Johnson,95 Utah 572, 83 P.2d 1010, and perhaps other cases. In some of these cases the decision was necessary for the determination of the case, and was not mere dicta. This rule is contrary to the group of decisions called the first group in the main opinion of which the author there says: "state the better and more practical rule." We agree with the rule approved in those cases, that a confession is not admissible in evidence unless it was voluntarily made; that this question must be determined by the court from all of the evidence from both sides bearing thereon; that if the court is satisfied from the evidence that the confession was voluntary, then the court admits the confession in evidence to the jury, together with all of the evidence on the question of whether it was voluntary, and the circumstances surrounding its being made, and from such evidence the jury must determine the weight and credibility to be given it, but may not determine its competency as evidence, that being a question for the court. This we understand is what the main opinion holds, and the Utah cases which hold contrary should be expressly overruled. See Wigmore on Evidence, Third Ed., Vol. III, Sec. 861, which says:

"The admissibility of the confession, as affected by the foregoing rules, is a question for the judge, on elementary principles defining the functions of judge and jury: [quoting from cases to that effect] This orthodox principle is well recognized in the majority of the jurisdictions.

"But in comparatively recent times the heresy of leaving the question to the jury has made rapid strides.

"To say that it is a question for the jury may mean one of two things. It may mean that the confession goes in any case to the jury to accept or to reject or to give such weight as the jury chooses; this practically abolishes all of the foregoing limitations, and would be in this aspect a desirable rule. But it may and commonly does mean that the jury may be allowed tomeasure it by the foregoing legal tests, and to reject it as a judge would if the tests are not fulfilled. This is decidedly improper; first, because it makes abject surrender of the fixed principle * * * that all questions of admissibility are questions of law for the judge only; secondly, because, in particular, the confession-rules are artificial, based on average probabilities or possibilities only, and do not attempt to measure the ultimate value of a given confession, and the tribunal which is to weigh all evidence finally ought not to be artificially hampered by them; thirdly, because the jury is not familiar enough with them to attempt to employ them. Nevertheless, many courts today hold that, after the judge has applied the rules and admitted the confession, the jury are to apply them again, and by that test may reject it. This unpractical heresy fails to appreciate the elementary canon of admissibility, and in that aspect its judicial extension has been a discouraging circumstance.

"In determining admissibility:

"(1) The judge must hear the defendant's evidence (including evidence from cross-examination of the prosecution's witnesses) upon the issue of voluntariness; although under the heterodox rule this could logically be dispensed with.

"(2) The jury, during the hearing of this evidence, may bewithdrawn, as is proper during all proof and arguments upon questions of admissibility.

"(3) But, when a confession is ruled to be admissible, the same evidence and all other circumstances affecting the weightof the confession may be introduced for the jury's ultimate consideration." (Italics by author.)

Of course there is nothing to prevent the jury from determining for itself whether it was voluntary and if it so determines ignoring it, or giving so little weight to it because of the circumstances under which it was obtained, as practically to ignore it. But the instructions of the court will be different in the case where it is held that the question of voluntariness is first for the court and then, if the evidence is in dispute, again for the jury than they would be in the case where the question is one finally for the court but after the confession is admitted, evidence of the circumstances under which it was taken is given to the jury. In the latter case the instruction would be to consider such evidence for the purpose of determining what weight should be given it. As intimated by the main opinion the end result as far as the jury mind is concerned will be much the same. The important thing is that the judge be convinced that the confession is voluntary before he gives it to the jury. He holds the trump card. Once given to the jury if it was in reality not voluntarily given, much harm may be done.

We agree with the holding that the court improperly commented on the evidence. If the evidence before the jury was insufficient to justify a verdict of murder, then their 11-13 verdict should have been not guilty; because their guilt of any other crime, as the court properly instructed, was not and could not be submitted for their determination.

We concur in what has been said in reference to jurors and witnesses fraternizing during trials. From what has been said above it follows that we concur in the result 14 reached by the main opinion and the propositions of law laid down, except as indicated otherwise by this opinion.

WOLFE, C.J., and McDONOUGH, J., concur in the opinion of Mr. Justice LARSON with such observations and limitations as are set forth in the opinion of Mr. Justice WADE.