The crime with which these defendants, all ignorant negroes, are charged, was discovered about 1 o'clock p.m. on Friday, March 30, 1934. On that night one Dial, a deputy sheriff, accompanied by others, came to the home of Ellington, one of the defendants, and requested him to accompany them to the house of the deceased, and there a number of white men were gathered, who began to accuse the defendant of the crime. Upon his denial they seized him, and with the participation of the deputy they hanged him by a rope to the limb of a tree, and, having let him down, they hung him again, and when he was let down the second time, and he *Page 573 still protested his innocence, he was tied to a tree and whipped, and, still declining to accede to the demands that he confess, he was finally released, and he returned with some difficulty to his home, suffering intense pain and agony. The record of the testimony shows that the signs of the rope on his neck were plainly visible during the so-called trial. A day or two thereafter the said deputy, accompanied by another, returned to the home of the said defendant and arrested him, and departed with the prisoner towards the jail in an adjoining county, but went by a route which led into the state of Alabama; and while on the way, in that state, the deputy stopped and again severely whipped the defendant, declaring that he would continue the whipping until he confessed, and the defendant then agreed to confess to such a statement as the deputy would dictate, and he did so, after which he was delivered to jail.
The other two defendants, Ed Brown and Henry Shields, were also arrested and taken to the same jail. On Sunday night, April 1, 1934, the same deputy, accompanied by a number of white men, one of whom was also an officer, and by the jailer, came to the jail, and the two last named defendants were made to strip and they were laid over chairs and their backs were cut to pieces with a leather strap with buckles on it, and they were likewise made by the said deputy definitely to understand that the whipping would be continued unless and until they confessed, and not only confessed, but confessed in every matter of detail as demanded by those present; and in this manner the defendants confessed the crime, and, as the whippings progressed and were repeated, they changed or adjusted their confession in all particulars of detail so as to conform to the demands of their torturers. When the confessions had been obtained in the exact form and contents as desired by the mob, they left with the parting admonition and warning that, if the defendants changed their story at *Page 574 any time in any respect from that last stated, the perpetrators of the outrage would administer the same or equally effective treatment.
Further details of the brutal treatment to which these helpless prisoners were subjected need not be pursued. It is sufficient to say that in pertinent respects the transcript reads more like pages torn from some mediaeval account than a record made within the confines of a modern civilization which aspires to an enlightened constitutional government.
All this having been accomplished, on the next day, that is, on Monday, April 2, when the defendants had been given time to recuperate somewhat from the tortures to which they had been subjected, the two sheriffs, one of the county where the crime was committed, and the other of the county of the jail in which the prisoners were confined, came to the jail, accompanied by eight other persons, some of them deputies, there to hear the free and voluntary confession of these miserable and abject defendants. The sheriff of the county of the crime admitted that he had heard of the whipping, but averred that he had no personal knowledge of it. He admitted that one of the defendants, when brought before him to confess, was limping and did not sit down, and that this particular defendant then and there stated that he had been strapped so severely that he could not sit down, and, as already stated, the signs of the rope on the neck of another of the defendants was plainly visible to all. Nevertheless the solemn farce of hearing the free and voluntary confessions was gone through with, and these two sheriffs and one other person then present were the three witnesses used in court to establish the so-called confessions, which were received by the court and admitted in evidence over the objections of the defendants duly entered of record as each of the said three witnesses delivered their alleged testimony. There was thus enough before the court *Page 575 when these confessions were first offered to make known to the court that they were not, beyond all reasonable doubt, free and voluntary; and the failure of the court then to exclude the confessions is sufficient to reverse the judgment, under every rule of procedure that has heretofore been prescribed, and hence it was not necessary subsequently to renew the objections by motion or otherwise.
The spurious confessions having been obtained — and the farce last mentioned having been gone through with on Monday, April 2d — the court, then in session, on the following day, Tuesday, April 3, 1934, ordered the grand jury to reassemble on the succeeding day, April 4, 1934, at 9 o'clock, and on the morning of the day last mentioned the grand jury returned an indictment against the defendants for murder. Late that afternoon the defendants were brought from the jail in the adjoining county and arraigned, when one or more of them offered to plead guilty, which the court declined to accept, and, upon inquiry whether they had or desired counsel, they stated that they had none, and did not suppose that counsel could be of any assistance to them. The court thereupon appointed counsel, and set the case for trial for the following morning at 9 o'clock, and the defendants were returned to the jail in the adjoining county about thirty miles away.
The defendants were brought to the courthouse of the county on the following morning, April 5th, and the so-called trial was opened, and was concluded on the next day, April 6, 1934, and resulted in a pretended conviction with death sentences. The evidence upon which the conviction was obtained was the so-called confessions. Without this evidence, a peremptory instruction to find for the defendants would have been inescapable. The defendants were put on the stand, and by their testimony the facts and the details thereof as to the manner by which the confessions were extorted from them *Page 576 was fully developed, and it is further disclosed by the record that the same deputy, Dial, under whose guiding hand and active participation the tortures to coerce the confessions were administered, was actively in the performance of the supposed duties of a court deputy in the courthouse and in the presence of the prisoners during what is denominated, in complimentary terms, the trial of these defendants. This deputy was put on the stand by the state in rebuttal, and admitted the whippings. It is interesting to note that in his testimony with reference to the whipping of the defendant Ellington, and in response to the inquiry as to how severely he was whipped, the deputy stated, "Not too much for a negro; not as much as I would have done if it were left to me." Two others who had participated in these whippings were introduced and admitted it — not a single witness was introduced who denied it. The facts are not only undisputed, they are admitted, and admitted to have been done by officers of the state, in conjunction with other participants, and all this was definitely well known to everybody connected with the trial, and during the trial, including the state's prosecuting attorney and the trial judge presiding.
We have already mentioned that counsel were appointed on the afternoon before the trial opened on the following morning, and that in the meantime the prisoners had been taken away to an adjoining county. Counsel were thus precipitated into the case and into the trial without opportunity of preparation either as to the facts or the law. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 165, 84 A.L.R. 527. Without having had opportunity to prepare, they assumed — erroneously as the majority now say — that the objections interposed when the so-called confessions were being introduced in chief were technically sufficient, and did not later move to exclude them when, under the undisputed testimony and the admissions of the state itself, it was fully developed *Page 577 that the confessions had been coerced, and that they were not receivable as evidence; and now the case of Loftin v. State,150 Miss. 228, 116 So. 435, is seized upon as a means of sanctioning the appalling, violation of fundamental constitutional rights openly disclosed by this record, undisputed and admitted.
The case of Loftin v. State, when carefully examined, is not the case now before us, and ought not to be forced into service under the facts now being considered. No officer of the state had any part in the confessions in that case, the prosecuting officer of the state did not use the confession, knowing it was coerced, the weight of the testimony was that the confession was actually and in fact voluntary. The case now before us is thus separated from the Loftin Case, in vital principle, as far as the east from the west. The case which is applicable and ought to be controlling here is Fisher v. State, 145 Miss. 116, 110 So. 361, 365. There the alleged confession was obtained in the jail by torture in the presence of the sheriff. Defendant's counsel did not object as he should have done under the rules of procedure when the confession was offered and admitted, but later and out of time moved to exclude. The conviction was sought to be maintained, as in the case now before us, on the ground that the defendant had not raised or interposed his objection to the alleged confession in the manner required by the procedural law. In reversing the sentence this court in banc said: "Coercing the supposed state's criminals into confessions and using such confessions so coerced from them against them in trials has been the curse of all countries. It was the chief iniquity, the crowning infamy of the Star Chamber, and the Inquisition, and other similar institutions. The Constitution recognized the evils that lay behind these practices and prohibited them in this country. . . . The duty of maintaining constitutional rights of a person on trial for his life rises above mere rules of procedure, and *Page 578 wherever the court is clearly satisfied that such violations exist, it will refuse to sanction such violations and will apply the corrective." See, also, People v. Winchester, 352 Ill. 237, 245, 185 N.E. 580; State v. Griffin, 129 S.C. 200, 124 S.E. 81, 35 A.L.R. 1227; Williams v. U.S. (C.C.A.), 66 F.2d 868; Booth v. U.S. (C.C.A.), 57 F.2d 192, 197; Addis v. U.S. (C.C.A.),62 F.2d 329; Commonwealth v. Belenski, 276 Mass. 35,176 N.E. 501; Mack v. State, 203 Ind. 355, 180 N.E. 279, 83 A.L.R. 1349; Hagood v. Commonwealth, 157 Va. 918, 162 S.E. 10, 601; State v. Hester, 137 S.C. 145, 162, 134 S.E. 885; O'Steen v. State,92 Fla. 1062, 1075, 111 So. 725; People v. Brott, 163 Mich. 150, 128 N.W. 236; People v. Bartley, 12 Cal.App. 773, 108 P. 868, 870; State v. Frost, 134 Wn. 48, 50, 234 P. 1021.
To my mind it would be as becoming a court to say that a lynching party has become legitimate and legal because the victim, while being hung by the mob, did not object in the proper form of words at precisely the proper stage of the proceedings. In my judgment there is no proper form of words, nor any proper stage of the proceedings in any such case as the record of the so-called trial now before us discloses; it was never a legitimate proceedings from beginning to end; it was never anything but a fictitious continuation of the mob which originally instituted and engaged in the admitted tortures. If this judgment be affirmed by the federal Supreme Court, it will be the first in the history of that court wherein there was allowed to stand a conviction based solely upon testimony coerced by the barbarities of executive officers of the state, known to the prosecuting officers of the state as having been so coerced, when the testimony was introduced, and fully shown in all its nakedness to the trial judge before he closed the case and submitted it to the jury, and when all this is not only undisputed, but is expressly and openly admitted. Cf. Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. *Page 579 340, 79 L.Ed. 791. The Scottsboro Cases1 are models of correct constitutional procedure as compared with this now before the court. In fundamental respects, it is no better than the case reviewed in Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543, wherein the formal court procedure was without defect, but the judgment was vitiated by the substance of what actually lay behind it.
It may be that in a rarely occasional case which arouses the flaming indignation of a whole community, as was the case here, we shall continue yet for a long time to have outbreaks of the mob or resorts to its methods. But, if mobs and mob methods must be, it would be better than their existence and their methods shall be kept wholly separate from the courts; that there shall be no blending of the devices of the mob and of the proceedings of the courts; that what the mob has so nearly completed let them finish; and that no court shall by adoption give legitimacy to any of the works of the mob, nor cover by the frills and furbelows of a pretended legal trial the body of that which in fact is the product of the mob, and then, by closing the eyes to actualities, complacently adjudicate that the law of the land has been observed and preserved.
Anderson, J., concurs in this dissent.
1 See Patterson v. State, 224 Ala. 531, 141 So. 195; Powell v. State, 224 Ala. 540, 141 So. 201; Weems v. State, 224 Ala. 524,141 So. 215; reversed Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527; Norris v. State (Ala. Sup.), 156 So. 556, reversed 55 S.Ct. 579, 79 L.Ed. 1074; Patterson v. State (Ala. Sup.), 156 So. 567, reversed 55 S.Ct. 575, 79 L.Ed. 1082. *Page 580