Miller v. State

Simmons, Justice.

Henry Miller was indicted jointly with one Boston, one Bird and two Troutmans, for the murder of John Braswell. Miller was tried sepai’ately and was found guilty; he made a motion for a new trial, which was overruled, and he excepted.

1. One Mosley testified that while he and one Bugg were confined as prisoners in the same cell with Miller, after the preliminary trial of Miller, Bugg asked Miller “what about the killing ?” and said “he better tell the truth; the white folks were going to break somebody’s neck”; whereupon Miller said that he shot Braswell, and Bird cut his throat; that Boston was present but had nothing to do with it; that he (Miller) threw the gun away in the woods and went on home; that he got home just about day and put into his trunk the flour which was taken from it at the time he was arrested.

The first ground of the motion for a new trial assigns error upon the refusal of the court below to rule out this testimony, it being contended that Bugg’s remark to the accused that he had better tell the truth, etc., rendered what was said by the latter inadmissible, under that section of the code which declares that “ to make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” (§3793.) Undoubtedly the statement to a person charged with crime that he had better tell the truth, may under some circumstances amount to such an inducement as should exclude a confession made upon the strength of it; but under the circumstances shown by the evidence in this case, we do not think that in this instance it should as a matter of law be held to constitute such an inducement. Counsel for the plaintiff in error relied upon the case of Green v. The State, 88 Ga. 516, in which it was held that the court below erred in not excluding a confession which the accused was led to make by the statement that it might be best for him to tell. In that case, however, this was said to the accused in the presence and apparently with the sanction of the sheriff, in whose custody he was at the time, by a person who had arrested him, and whose object evidently was not so much to ascertain the truth as to obtain a confession of guilt; and the accused, in view of the authority exercised by these persons, may have supposed that they were able to i-ender him some aid in relation to the charge against him, and that it would be to his advantage to follow their advice and make such a statement as they desired him to make. A very different case is presented where remarks of this kind are made to the accused by another prisoner and in the presence of fellow-prisoners only; for while it is true that in this State it is not necessary, in order to exclude a confession induced through hope or fear, that the inducement should have proceeded from a person in authority, it is plain that a remai’k of this kind, when made by a person in authority, may have an influence in inducing a confession through these motives, which it would not have if it came from a source which the accused could have no reason to regard as authoritative. It is not at all likely that the accused in this case, in replying as he did to the inquiry of his fellow-prisoner, did so because he supposed he would gain anything, so far as the charge against him or any punishment on account of it was concerned, by then and there making a confession, or that it would be worse' for him if he did not do so. The statement that the “ white folks ” were going to break “somebody’s” neck, if he understood it as referring to himself, could not have been understood as meaning that they were about to do so then, for there was nothing to indicate that he was in any immediate danger; nor is it likely that he understood what was said as meaning that if he did confess, the danger to himself might be averted. This language could of course be taken into consideration by the jury, in determining what weight should be attached to the admissions in question, and it would be for them to say whether the admissions were thereby rendered involuntary or not; but the circumstances were not such, in our opinion, as would require the court as a matter of law to exclude them. We think the proper course was pursued by the court below in holding the admissions prima fade competent, and in his charge leaving the jury to determine whether they were in fact made, and instructing the jury as he did upon their effect on condition that they appeared free and voluntary.

2. Complaint is made that the court erred in charging upon the subject of reasonable doubt, to the effect that the doubt must be one growing out of the evidence; and in charging that the jury must try the case by the evidence, without charging further, in immediate connection therewith, that the prisoner’s statement should he considered along with the evidence; the effect of this being to exclude a proper consideration of the statement, especially as the jury were instructed in another part of the charge that the statement was not, strictly speaking, evidence. This point is ruled by the decision in Vaughn v. The State, 88 Ga. 731, 733 (4), in which this court passed upon a similar assignment of error, and held that the court below did not err in the instructions complained of. In the opinion of the court in that case it is said: “ The jury trying a criminal case are sworn to give a true verdict according to evidence. It is important for them not to confound the prisoner’s statement with the evidence or the evidence with the statement. The statute allows them to give the statement such force as they think proper, and even to believe it in preference to the sworn testimony. In charging them the court should keep the evidence distinct from the statement, and shape the general tenor of the charge by the evidence alone and the law applicable to it. For if the court should mingle evidence and statement together, the jury might find it difficult to separate them and might fail to understand the import of the instructions delivered from the bench. At some stage of the charge the statutory provisions touching the statement ought to be made known to the jury, and this, as has frequently been suggested by this court, is usually enough to say touching the statement.” In the present case this was done, the instructions given on this subject being substantially in the terms of the statute. In the case of Washington v. The State, 87 Ga. 14, in which complaint was made of the failure of the court below to call attention to the prisoner’s statement in the same connection with certain portions of the charge, this court went no further than to make a recommendation as to the practice in such cases. We did not hold, but on the contrary disclaimed any intention to hold, that the failure to do so was error.

3. There was no error requiring a new trial in any of the charges complained of; the evidence warranted the verdict, and this court will not overrule the discretion of the court below in refusing to grant a new trial.

Judgment affirmed.