Edward Douglass White

“ 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. ”

“ 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. ”

“ 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. ”

“ Our conclusion that the confession was wrongfully admitted renders to 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. ”

“ 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. ”

“ 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 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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. ”

“ T is 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. ”

“ 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 ”

“ 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, o 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”