I dissent in this case because common sense and experience teach me that appellee's confession was not made voluntarily by him, but was the result of coercion on the part of the officers. There is no rule of law known to me which prevents a judge from using his common sense in arriving at a judicial conclusion.
Mayhew had killed a man in a public place in the presence of many people and the officers knew he had committed the act. Their bringing him before them on the following morning, instead of taking him before a magistrate as provided by Secs. 27 and 46 of the Criminal Code of Practice, could have been only for the purpose of interrogating him in the hope of coercing from him statements derogatory to his interest. These were experienced police investigators, one being a lawyer, and it cannot be doubted they were fully cognizant of Secs. 27 and 46, as are practically all police officers.
The alleged confession begins: "By Walter A. Kirkpatrick: Henry, I want to talk to you about this case and I want to take a written statement from you." Then follow seven typewritten pages wherein the accused evidently answers questions which were asked him. It is true the officers did not let the questions appear in the statement, but no one can read it without immediately being impressed that Mayhew's statements were made in answer to Kirkpatrick's questions. The fact that the statement fails to include the questions asked leads the mind to wonder if they were not omitted in order to obliterate all trace that the accused was plied with questions.
It was written in McClain v. Com.,
The preamble of the alleged confession that the officer warned the accused that his statement would be used against him is almost sufficient to convince me, as it must have the Hon. Chester D. Adams, the Trial Judge, that it was not voluntarily made. Each and every one of the seven pages of the confession is signed by the accused. It is indeed unusual that a layman would voluntarily sign each page of his statement. The testimony of Mayhew taken in chambers before Judge Adams on the trial is that he did not want to make this confession but that he did not refuse to make it. Therefore, it follows that the trial judge was correct in ruling that the confession was coerced. Otherwise, why would an accused make statements derogatory to his interest when in the custody of officers which he did not want to make?
Judge Adams wrote a full and learned opinion wherein he reviewed the law relative to the admissibility of confessions from the 16th century down to date. In the course of that opinion he wrote:
"What is the compulsion or coercion which keeps a confession from being the free, spontaneous exercise of the will? There may be compulsion or coercion of time, place, surroundings, circumstances, fear, hope or overreaching. A statement may have all the appearances of being voluntary and yet this necessary element may be lacking by reason of some subtle influence which working upon the mind destroys its voluntary nature. This need not be physical force. It may even be a hope of securing a better break and thus not voluntary because prompted by fear of worse results if he does not *Page 181 speak. Thus a manifest kindness may be the force of fear which destroys the voluntariness of a statement.
"There may be the coercion of time as where his arraignment before a magistrate is delayed to get a confession, or of place and surroundings as where he is at the police station surrounded by police officers; or of circumstances as where he is afraid not to confess because an investigation may result in turning up other crimes of which he is guilty. This coercion of fear prevents the confession from being an exercise of free will. The coercion of hope whereby the accused confesses because he hopes to gain some consideration, the coercion of persuasion whereby he is led by artful questioning to disclose more than he intended, the coercion of overreaching where a stronger mind dominates a weaker one, may each be as effective in destroying the voluntary nature of it confession as the coercion of fear which is the result of actual or threatened physical violence.
"A confession to be voluntary must come from a free, unhampered will. The will must not be acted upon by hope or fear, must not be dominated or over-reached by a stronger will or persuaded or influenced by anything that interferes with its free operation.
"When the arraignment of an accused before the proper officer is delayed, during which time he is kept in custody, denied the benefit of counsel, the advice of friends or the aid of relatives, does not this of itself have a tendency to break down and destroy the free, voluntary operation of his will? Is not this the purpose for which he is so held?"
The alleged confession was not in the language of the accused but in that of the officers, concerning which Judge Adams wrote:
"The statement prepared by Mr. Kirkpatrick and signed by the defendant is very clear and systematic. This shows that in writing it the attorney couched it in the language his education and profession had trained him to use. This was not for the purpose of changing the meaning of any statement made by the defendant, but it is unfortunate that it was not drawn in the exact language used by the accused. Mr. Kirkpatrick stated Mayhew was very nervous and he said 'I was still upset and nervous, all tore to pieces, and, I can truthfully say that I was not capable of making a statement at this *Page 182 time.' If the exact language of the accused had been reduced to writing I am sure judging from his rambling, excited testimony in court, that it would have shown on the face of the statement that he was upset, nervous and perhaps not capable of making a statement.
"When officers delay taking an accused person before a magistrate forthwith but keep him in custody for the purpose of interrogating him and getting a statement or confession, they are in reality creating a court of their own in which to try him; a court in which he is not permitted the benefit of counsel, or the advice or aid of friends and relatives and his constitutional rights are not protected. This is all in violation of the Constitutional provision, 'No courts save those provided for in this Constitution shall be established.' "
Due to the far-reaching effect the majority opinion attaches to a confession, it says the trial court should exercise extreme caution and not admit the confession should there be any doubt that it was freely and voluntarily made, which doubt should be resolved in favor of the accused. However, the majority paid but slight attention to the ruling of Judge Adams, who was on the ground and saw the accused and the officers when they were testifying before him in chambers. Yet he was passing on a question of fact as to whether the confession was voluntarily made, and perhaps knew the officers and was likely acquainted with their subtle methods of wringing a confession from a prisoner under the guise of obtaining from him a voluntary statement. I would give the greatest heed to the ruling of the trial judge in such matters, and never disturb it unless the evidence heard by him in chambers conclusively showed that he erred in his ruling.
In his splendid opinion the learned trial judge quotes from authorities showing how police officers are taught and coached to get around the statute against coercing confessions from prisoners, such as advising them not to call a lawyer for fear the lawyer will use the information gained by conference against his client; that he has nothing to fear if innocent. Courts should be vigorous in curbing such methods and should remember that there is such a thing as mental coercion which is more powerful than the rubber hose or the padded black-jack, neither of which is supposed to leave marks on the victim. *Page 183
It is unconstitutional for the police to set up their own courts and try accused persons without an impartial judge presiding and without the benefit of counsel. Regularly constituted tribunals should put an end to this abominable practice by the police.
