The identification of the defendant as one of the murderers of Jackson rests — apart from his confession — upon the testimony of Damp, an accomplice, and upon alleged admissions made to Many, a criminal who had on other occasions been engaged in hold-ups with Doran, and to Scheuer, an associate with criminals, if not one himself. There was also a conversation with one Hall on the night of the murder when Doran betrayed knowledge that there had been a shooting affray.
For the defense Doran testified to his presence at a theatre at the hour of the murder. He has a criminal record and was an interested witness. He also admits that a week before the murder he started with others to *Page 428 hold up Jackson's store, but gave up the idea because a number of people were present, and he also admits that he and his associates planned the robbery on the night it occurred, but says that he failed to join them. His alibi was corroborated by the testimony of his fiancee, but her credibility was much weakened on cross-examination.
Upon the case so made a question of fact was presented to the jury. We could not have set aside a verdict of guilty as against the weight of evidence. On the other hand, guilt is not so clear and certain that we may ignore substantial errors.
Conviction was certain, however, if a confession made by Doran was received and considered. It was logical, detailed and corroborated the evidence of the accomplice, Many. It showed Doran to be guilty of the crime as charged.
It is said, however, that it was procured by force and fear. This is disputed. Under such circumstances, the trial judge admitted it in evidence, telling the jury that if procured as the defendant claimed, they should wholly disregard it. Otherwise, they should give it such weight as in their opinion it deserved.
If this was error, the judgment should be reversed. It is said we do not know what was the conclusion of the jury. They may have rejected the confession entirely and yet convicted the defendant on the remaining testimony. That is no answer. We may disregard errors which do not affect the substantial rights of the parties, but we must be satisfied that these rights are not affected. The possibility that they may not be is insufficient.
The duty of the trial judge is clear. To him is addressed the preliminary question. If there is no dispute but that the confession was extorted by force or fear, he should reject it. So he should do if a verdict that it was freely made would be against the weight of evidence. It is only where a fair question of fact is presented that he should take the course taken in this case. *Page 429
So the ultimate matter for our decision is whether a finding that this confession was freely made would be against the weight of the evidence. On the whole, we do not think so. There are suspicious circumstances connected with the examination by the police and the district attorney. We have often been disturbed by charges of force used in murder cases to obtain confessions. While on the one hand such charges have become a standardized defense, on the other at times there may have been a basis behind them. We certainly do not wish to revert to the rack and thumbscrew. If we are satisfied that confessions have been improperly obtained, we should not hesitate to reverse even if the guilt of the accused otherwise seems clear, and we should speak in no uncertain terms in rebuke of such proceedings. The difficulty is that it seldom happens that we can say with any degree of certainty that the charges made by the defendant are satisfactorily proved. That is the trouble in the case before us. Judge CRANE has pointed out the evidence for the People, tending to show that Doran is lying. There is so much of it that we cannot reject it. Therefore, coming to the conclusion that the trial judge should not have excluded the confession but should have submitted it to the jury as he did and concurring as we do in the prevailing opinion we must affirm this judgment.