May 14, 1921. The opinion of the Court en banc was delivered by The appellant was tried and convicted in the Court of General Sessions at Orangeburg, at January term, 1920, before Judge Peurifoy and a jury, upon the charge of burglary and grand larceny at common law. Sentence, imprisonment for life.
The appeal raises but three questions:
(1) Did the Circuit Judge err in admitting certain statements of the defendant alleged to have been a confession of guilt or an admission of certain facts connecting him with the crime?
(2) Did the Circuit Judge err in not determining for himself the preliminary question of the admissibility of such statements?
(3) Did the Circuit Judge err in charging the jury that the defense of alibi was "a rogue's defense?"
These questions are imperfectly presented in exceptions 1, 2 and 4, but will be considered ex gratia. Exception 3 will not be considered for the reason that no specific error is pointed out.
The first question: It appears that the defendant was arrested by a constable at Pregnall's, some distance from the scene of the crime, on a passenger train bound for Charleston. He had upon his person a watch, identified as the property of the prosecutor, a bottle partly filled with gasoline, and a bundle of clothes afterwards discovered on the train when it reached Charleston was identified as the property of the prosecutor. After he was taken from the train the defendant was locked up. Leading up to the introduction of certain statements made by the defendant the constable was asked as to inducements or threats. He stated that he had not threatened the defendant, but that he had told him "that it would be a whole lot better for him to tell *Page 116 the truth;" he asked my advice, and I said that the easiest way was the best way; that it would pay a man best to tell the truth;" that the statements were made without reward and voluntarily. Defendant's attorney objected to the introduction of the statements upon the ground that they were induced by a hope of benefit. The Circuit Judge did not rule upon the admissibility of the statements, but stated that he would submit the question as to the voluntary character of the statements to the jury under proper instructions. The statements were allowed to go to the jury. We do not find in them any confession of guilt. The witness testified that the defendant "told where the gun was" (it was in evidence that a gun had been taken from the house;) "he said that the clothes were in Charleston;" "that there was a package on the train;" "that his (Duggin's, the prosecutor's) clothes were on the train." The information about the gun was followed up, but the gun was not found where the defendant said it was; it was found on the railroad right of way while the tracks were being followed, along the route upon which the telegraph post indicated by the defendant was located. The clothes were found in a bundle on the train after it reached Charleston, and were returned to the prosecutor.
There are two considerations which in our opinion rendered the statements of the prisoner admissible: (1) The observations of the constable to the effect that it would be better for him to tell the truth were made in response to the prisoner's request for advice in the matter — "He asked my advice" — and were such as would naturally suggest themselves to a normal mind under the circumstances and do not show that they were officiously made by the constable to secure a confession or an admission. State vCrank, 2 Bail. 66, 23 Am. Dec. 117. (2) Even if objectionable upon the ground that they were induced by the hope of benefit, they were admissible if they pointed to a distinct substantive fact from which the guilt of the prisoner *Page 117 might have been inferred. State v. Crank, 2 Bail. 66, 23 Am. Dec. 117.
"When [while?] a confession, improperly obtained, cannot be admitted, yet so much of the confession as relates strictly to the fact discovered by it may be given in evidence."State v. Clark, 4 Strob, 311.
"The fact that the witness was directed by the prisoner where to find the goods, and his having found them accordingly, should be submitted to the jury, but not the acknowledgment of the prisoner's having stolen or put them there." Same case.
"So much of a confession as led to the discovery of a material fact may be given in evidence, although the party was induced to make the confession by persuasion and hope of immunity." State v. Motley, 7 Rich. 327; 12 Cyc. 478. We therefore conclude that the statements of the prisoner relating to the gun and clothes were properly received.
The second question: The general rule unquestionably is as stated in State v. Rogers, 99 S.C. 504, 83 S.E. 971.
"A confession is not admissible unless it is voluntary, and the question whether it is voluntary must be determined in the first instance by the presiding Judge.
We do not understand, however, that this is an absolutely inflexible rule.
The Court in State v. Moorman, 27 S.C. 22, 2 S.E. 621, after stating the general rule to be that the preliminary question of the admissibility of a confession or admission should be first determined by the presiding Judge, declares:
"But at last this matter is left very much to the discretion of the Judge upon all the circumstances of the case."
"If there is a conflict of evidence, and the Court is not satisfied that the confession was voluntary, the confession may be submitted to the jury, under instructions to disregard it, if upon all the evidence they believe it was involuntary." 12 Cyc. 482. *Page 118
This is exactly the course pursued by the Circuit Judge in this case, and we cannot say that under the circumstances his discretion was abused. If the statements were, as we hold, admissible, the defendant was benefited, or at least given the chance of benefit, rather than prejudice, by submitting the question to the jury. Furthermore, the prompt exclusion of the testimony would seriously prejudice the right of the State to offer the statements, even if involuntary, under the circumstances referred to in State v. Motley, 7 Rich. 327, and 12 Cyc. 478, above cited.
The third question: The Circuit Judge charged the jury as follows:
"The defendant here not only enters the plea of not guilty, but he also enters what is known in law as the defense of alibi; that is, he was elsewhere. An alibi has beensaid to be a rogue's defense. [Italics added.] The reasonit is given that name is because it is a good defense andpossibly the best defense that can be put up where it isproven. Of course, if the defendant was not present, if he was elsewhere, he could not have committed the crime; therefore, if he has convinced you that he was elsewhere, or he has proved his alibi by the greater weight of the evidence, he would be entitled to an acquittal at your hands."
The presumption of innocence accompanied the defendant from the moment of his arraignment; it clothed him "as with a garment" until a verdict of guilty stripped this presumptive robe of righteousness from his person; he was entitled to recognition as a member of that class to which the presumption assigned him, the innocent, and not the guilty.
Alibi is not only a proper defense, but to an innocent man is always an essential defense, and indeed it may be his only defense; it affords, when established, the most perfect, physically conclusive evidence of his innocence. This Court can rarely escape a mental conclusion as to the *Page 119 guilt or innocence of a defendant; but it cannot allow that conclusion to change its interpretation of the law.
To instruct a jury that this refuge of an innocent man, actual or presumptive, is a rogue's defense, is impliedly to assign the defendant to a class to which in fact he may not, and in law he certainly does not, at that stage of the trial, belong; it throws discredit upon, disparages, a perfectly legal defense, strongly indicative of the impression which the testimony has made upon the Court.
In State vs. Crowell, 149 Mo. 391, 50 S.W. 893, 73 Am. St. Rep. 402, the charge was not nearly so harsh:
"Though an alibi may be a well-worn defense, yet it is a legal one, to the benefit of which the defendant is entitled."
It was held reversible error, the Court saying:
"The Court is not permitted to disparage the defense of an alibi or to refer to it in a slighting or sneering manner. Evidence in regard to an alibi is to be tested and treated just like evidence offered in support of any other defense insanity, self-defense," etc.
Judge Freeman in a note adds:
"Whenever an instruction has been given which clearly casts discredit upon the defense of alibi, and it appears possible that it could have prejudiced the accused, the appellate court will grant a new trial."
In a criminal case evidence of an alibi is to be subjected to the same test as any other evidence of a material fact and a charge tending to cast suspicion on such evidence is erroneous." Sater vs. State, 56 Ind. 378.
"An instruction that the defense of alibi is very often resorted to by guilty persons as well as innocent ones, and one in which perjury, mistake, and deception are often committed, is error." State v. Chee Gong, 16 Or. 534,19 P. 607.
"An instruction that an alibi is a species of defense often set up in criminal cases and one which seems to figure in *Page 120 this case, was erroneous in that the language was calculated to convey to the jury the impression that the Court regarded that particular defense as a pretense without foundation in truth." Walker v. State, 37 Tex. 366.
"It is error to charge that an alibi is a defense generally looked on with great suspicion." People v. Kelly, 35 Hun, 295.
"On trial of an indictment for larceny, the Court, in instructing the jury upon the defendant's introduction of evidence to prove an alibi, remarked: `This defense is liable to great abuse, growing out of the ease with which it may be fabricated and the difficulty with which such fabrication can be detected.' Held erroneous as tending to cast suspicion on the defense." Albin v. State, 63 Ind. 598; Dawsonv. State, 62 Miss. 241.
"It is error for the Court to advise the jury that the defense of alibi is one easily fabricated, that it has occasionally been successfully fabricated, and that the temptation to resort to it as a spurious defense is very great, especially in cases of importance." Henry v. State, 51 Neb. 149,70 N.W. 924, 66 Am. St. Rep. 450.
We are of the opinion that the remarks of the Circuit Judge in explanation of his declaration that "an alibi has been said to be a rogue's defense," aggravated rather than mitigated the prejudicial effect of his declaration. "The reason it is given that name is because it is a good defense," etc.; in other words, a rogue, a guilty man, fabricating a defense would naturally select the most effective one.
The charge excepted to was prejudicial to the defendant, and requires a reversal of the judgment.
The judgment of this Court is that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for a new trial.
JUSTICES WATTS and FRASER, and SEASE, SHIPP, WILSON BOWMAN, MAULDIN and TOWNSEND, Circuit Judges, concur. *Page 121