Simon, a slave, Plaintiff in error, vs. the State of Florida, 5 Fla. 285

SEMMES, J.: The first error assigned, is, that there is nothing in the record to show that the Grand Jury found a true bill ofindictmentagainsttheplaintiffin error, and the case of Holton vs. the State, 2 Fla. R., 476, is relied upon as authority. We have carefnlly revised the decision in that case. It is certainly distinguishable from the one before us, and we certainly are not disposed to extend any further the principles of that decision.

Immediately after the caption of the record, in this case, which contains all the essential requisites, follows this statement: “ And on another day, to wit, the fifteenth day of June, in the year of our Lord one thousand eight hundred and fifty-three, the Grand Jurors came into Court and presented the following bill of indictment, which said indictment is in the following words and figures, and is endorsed as follows, to witThen follows a copy of the indictment, with the finding of the Grand Jury, closing with the usual certificate of the clerk.

The record is a complete and perfect one, and a mere statement of the facts is a sufficient answer to the objection. The second assignment of error is, that the Court below left it to the jury to determine whether the confession of the accused was voluntary or not? It was undoubtedly the province of the Court to determine in the first instance as to the admissibility of these confessions. There is a manifest distinction between the questions, whether a confession be voluntary or not, and the credit and weight to be given the evidence establishing the confessions.

The one is $s exclusively a question for the Court, as the other is for the jury, for it is only when the confession is voluntary that it becomes legal evidence, and can be submitted to the consideration of the jury. It oftentimes may become a question of no little embarrassment to determine whether the confession is voluntary or not, but still, the law has reposed the exercise of this power in the Court, and it cannot be delegated to the jury.

Their province is widely different; they are not eoncluded by the confessions, when submitted to them, for they are to determine not only the weight and credit to be given the testimony of the witnesses, who depose as to'the conlessions, but the credit to be given to the confessions themselves. "We do not consider this to be an open question. There is no conflict of authorities on the subject, and the doctrine is universally acquiesced in by the English and American Courts. A note by the Editor of Russell on Crimes, is relied on as maintaining a different doctrine. 2 Russell 5 Amer. Edit., 826, n. 2.

But it is very evident that the questions, as to the admissibility of the evidence, and the credibility of the witnesses, have been confounded. Otherwise, the note of the Editor-is not only at variance with thetext. but with theauthority referred to. In case of Rex vs. Nute, 2 Russell, 832, it is true the confessions were in evidence, and the jury were allowed to pass upon the question whether they were voluntary or not, but on a case reserved, the Judges held that these points were not for the jury.

It is insisted by the Attorney General, that the evidence in relation to the confessions being voluntary, having gone to the jury, it was too late afterwards to object to its admissibility. It is true, the investigation in the first instance, should have been restricted to the motive and influence which may have operated on the mifld of the prisoner, in making those confessions; it was a preliminary question, and the judgment of the Court should have been invoked on that.

But it is none the less true, that it was in the power of the Court to have arrested the examination and withdrawn the evidence at any time during the progress of the trial. The third assignment of error, is, that the Court should have ruled out the confessions, because they were not voluntary. \To render a confession voluntary and admissib.e as evidence, the mind of the accused should at the time be free to act, uninfluenced by fear or hope. To exclude it as testimony, it is not necessary that any direct promises or threats be made to the accused.

It is sufficient, if the attending circumstances, or declarations of those present, be calculated to delude the prisoner as to his true position, and exert an improper and undue influence over his mind./ The evidence in this case was, that the accused was arrested on suspicion. What the grounds of suspicion were do not appear. He was taken before the mayor of Pensacola, at his office. A large and excited crowd was present, declaring that the accused should be hnng, and but for the firmness and determination of the mayor, would have seized upon him.

He was informed by the mayor that the crowd was satisfied as to his guilt, that lie would he put upon his trial, and would certainly be bung. That if he had accomplices they would be put upon their trial, and not him — that he would become State’s evidence. The mayor further testifies “ that the accused was greatly alarmed.” The city marshal, who was also present, testifies, that the accused was under great excitement, was laboring under great terror, and that he never saw any one more terrified. Under these circumstances, he was urged to confess.

When asked, what he had to say ? he replied* “ send for my master and I will tell the whole.” Upon his master appearing, the previous statements of the may- or were repeated to the accused, and he confessed his guilt. The next morning he was committed' to jail, and upon a second interview with the-mayar he again confessed his guilt and accused some one as his accomplice, Who on being arrested he failed to identify. There were no corroborating circumstances in proof, in. aid of the confession, though there was evidence to disprove a part of his statement.

Upon this state of the facts he was convicted and sentenced to be hung; There are few cases to he found in the books where stronger influences were brought to bear on- the mind of the prisoner to extract a confession than the one before us. That it was- made under the influence of fear or apprehension of personal violence, can scarce-be doubted.

The fact of the assurance of protection, on the part of the mayor, from the threats and violence of the crowd, was but additional inducement to the confession; for, connecting the langua'ge of the mayor with the terror inspired by the crowd, it is but fair to presume that the conviction was, that his confession was the only immediate security for his person and his life.

The fear of immediate punishment may be as powerful an agent in extorting a confession, as the -punishment itself, If, from, the situation and character of the accused, the circumstances were ealculatedt o, or did inspire Mm with,, this fear, his confessions came at least within the spirit of the rule excluding them as evidence. The impression and conviction wa,s made — the agency is of no consequence. The second confession made in-prison,, it is reasonable to infer, was induced by the circumstances attending the first.

The presumption is, that the previous influences continue, and such presumption must be overcome, Th$ State vs. Guild, 5 Halst., 163. Explicit warning of the accused by the magistrate, and length of time intervening, are circumstances which may render the subsequent confessions'evidence. Ibid. These do not exist in this case. It is true, the precise time when the subsequent confession was made, is not stated, though it is clearly inferable it was the next day.

Whether this be so or not, it was incumbent upon the prosecution to have proved the time, and failing to.do so, the accused is entitled to all the benefit of the omission.

Independent of these confessions, the fact that the accused is a slave, and the confession to, and at the instance of his master, are circumstances entitled to the most grave consideration ; the ease with which this class of our population can be intimidated, and the almost absolute control which the owner does involuntary exercise over the will of the slave, should induce the Courts at all times to receive their confessions with the utmost caution and distrust. And the facts of this case afford a strong commentary upon the uncertainty and danger of these confessions.

In the course of his examination the accused undertook to state the particular part of the house which was set on fire. He says he set fire to the east window of the first story under the gallery, and that he staid there until it blazed up. One of the witnesses is satisfied the fire commenced in the upperstory; the shingles he thinks must have been set fire to from the attic — the fire was running out on the shingles. He believes he conld have seen the east window had it been on fire, from where he stood.

Another witness says, he discovered the south-east attic on fire, that he went into the gallery, but he saw no fire there; none of the windows were burning. These witnesses, who are unimpeached, and whose testimony is uncontradicted, establish the fact, that the confessions of the prisoner as to the particulars of the burning, were altogether untrue. • It is true that the jury were competent to believe his confession as to his guilt and reject the balance of his statement.

But the record does not disclose a solitary circumstance from which we would be warranted in believing one statement more than the other. • If the confessions were voluntary, it would be difficult to conceive of a motive for giving-this detailed statement of a matter so clearly proved to have been false-. "We can only reconcile the confessions with the fact that when made, the prisoner was laboring under excitement and apprehension. •Judgment below reversed, cause remanded, and new trial ordered.