Nicholson v. State

Bartol, C. J., delivered the opinion of the Court. It appears by the record that the appellant was indicted for murder, jointly with Thomas Hollihan, and a verdict of lCguilty of murder in the first degree” was rendered against each of the prisoners. In the course of the trial, an exception was taken by the counsel for the appellant, to the ruling of the Circuit. Court, which is now before us for review on this appeal.

The questious presented for our consideration, arise upon ¹⁵² the admission in evidence of confessions made by the appellant, after he was arrested, to William Crone, a detective. The bill of exception shows, that before the witness Crone was allowed to detail the confession made to him by the prisoner, he was at the instance of the prisoner’s counsel, examined as to the circumstances under which the confession was made; for the purpose of ascertaining whether any promise or. threat or inducement to confess, had been made to the prisoner, which would render the confession inadmissible ; and proved that the confession had been made voluntarily, and without being induced by any promise or threat whatsoever. Thereupon, at the instance of the prisoner’s counsel, leave was given by the Court for further testimony on this subject to be offered, both on the part of the accused and of the State; and Thomas Nicholson was called on the part of the prisoner, and testified, that he was present at the interview between the prisoner and Crone, at which the confession was made, and stated, that Crone sat down by the prisoner and said to him, “for Christ’s sake, if you know anything about -this case, let it out before Hollihan squeals, for if you do not, Hollihan will squeal before you, and you will get the worse of it,” and that this was said by Crone before any statement or confession was made by the prisoner. John English, who was present at the same interview, testified that “ neither before the confession was made by the prisoner, nor at any other time during the interview, did Crone say to the prisoner the words testified to by Thomas Nicholson, or anything whatever to the like import.” Crone was then recalled and contradicted the witness Thomas Nicholson, and swore that “he did not before the statement was made by the prisoner, or at any other time, make use of or say to him, the words or expressions testified to by the witness Thomas Nicholson.” ¹⁵³ Both Crone and English testified substantially to the same facts.

They both stated that just alter they entered the room at the station house, where the prisoner was confined, Thomas Hicholson, the witness being with them, the prisoner spoke first to Grone and said, “1 want to tell you all about this case.” Crone then said to him, “Josh let it be the truth, and let it be of your free will and consent” — or according to English’s recollection, Crone’s answer was, “ then I want you to tell me the truth about this thing, and make a clean breast of it,” and the prisoner then went on to make his statement. Upon a most careful consideration of the whole testimony on this point, after an examination of the authorities cited in the argument; we are all of opinion that the statement and confession of the prisoner was admissible, and competent evidence to be submitted to the jury. Without undertaking to lay down any general rule on this subject, or attempting to define the nature and character of the inducements held out to a prisoner, which would render his confession inadmissible ; for this must necessarily depend very much upon the particular circumstances of each case; it is very clear upon all the authorities, that if the confession of the appellant had been induced by any threat of harm, or promise of worldly advantage held out to him by Crone, or by his authority, or in his presence and with his sanction, it ought to be excluded. The law is also well settled that the onus is upon the prosecutor, to show affirmatively, that the confession proposed to be offered was not made in consequence of an improper inducement. 1 Taylor, sec. 796.

In the language of Baron Parke in Queen vs. Warringham, the Court must be satisfied that the confession sought to be used in evidence against the prisoner, “ was not obtained from him by improper means.” 2 Den. C. C., 448, note. ¹⁵⁴ According to the testimony of Crone and English, there was neither promise nor threat employed in this case; the statement of the prisoner was made by him voluntarily. Thomas Nicholson testifies to the contrary; but it is'impossible to give credence to his statement, he is not only positively contradicted by both of the other witnesses; but his whole testimony is improbable in the extreme. Not only does he put in the mouth of Crone, words which Crone himself positively states were not used by him, and which English, a disinterested witness who was present and heard all that occurred, positively contradicts; hut his other statements as to what he alleges Crone had previously said to him, while on their way to the station house, are not supported by any other testimony, and are positively disproved by both Crone and English.

And when it is remembered that this witness is a brother of the prisoner, naturally moved by the strongest bias in his favor, and testifying under the influence of that bias; we cannot escape the conviction that the true account of what occurred at the interview with the prisoner, and of the circumstances under which he made the confession, is to he found in the testimony of Crone and English. There was no error therefore in allowing the confession, to be given in evidence to the jury. We have thought it our duty in a case of such serious and vital importance, to express our judgment on this question, without stopping to inquire whether it is technically presented by the exception as it is set out in the record. Without regard to the form of the exception, it is evident that the material and important question in the case, is whether the confession of the prisoner, made under the circumstances shown by the proof, was properly