Hauk v. State

On Petition eor Rehearing.

Per curiam.

Counsel for appellant, in their brief, on petition for a rehearing, again earnestly insist: 1st. That there was an abuse of discretion upon the part of the lower court in denying appellant’s application for a change of venue from the county. 2d. That the trial court erred in admitting in evidence the confession of appellant. 3d. That the court erred in refusing to instruct the jury that if they believed that the confession was made under the influence of fear produced by threats, they should reject it, and give it no consideration. It is therefore contended that this court erred in sustaining the rulings of the lower court upon these several questions.

We have again given these and the other questions raised in this appeal a careful review and consideration, and can find no reason to disapprove the conclusions reached in the original opinion. It is contended that it was the province of the jury to determine whether the confession of the accused was made under the influence of fear produced by threats, and if they believed such to be a fact, they must reject it as evidence. Or, in other words, we are asked to virtually adjudge that the jury ought to have been permitted to exercise the prerogative of the court and decide the question of the competency of the confession as evidence. It was held, at the original hearing of this appeal, that the court having in the first instance held that the confession was competent, appellant could not require it tO' submit the question of its competency to the decision of the jury. The compe *265 tency of any character of evidence is a question exclusively for the determination of the court. The weight or credibility, however, to which it is entitled is a matter exclusively for the decision of the jury in accordance with the rules of law relative to that question.

The rule affirmed by the authorities cited by the court in the original opinion, and the correct one, we think, is that which requires the court to determine at the trial as a preliminary question, whether the confession of the person accused of the crime is incompetent upon the ground that it is the offspring of fear produced by threats.

When the court holds the confession admissible as evidence, it must be received by the jury, and it is not within their province to reject it as incompetent. The credibility, effect, or weight to which it is entitled, as in other evidence, is a question which the jury has the right and must determine for themselves. In deciding this question, they may and ought to look to, and consider all of the facts and circumstances under which the alleged confession was made. The credibility of the confession being a legitimate subject of inquiry upon the part of the jury, it may be impeached by the defendant in any authorized manner. While the jury may believe it to have been involuntarily made by reason of the hopes or fears of the confessor having been unduly excited, still, if there is evidence which confirms or corroborates it, so as to impress the jury with the belief of its truth to their satisfaction, in that event they would not be justified in rejecting the confession solely upon the ground that they believed it to have been involuntarily made.

In deciding upon the credibility of a confession, or upon the effect, or weight to which,' if any, it is entitled, the jury has the right to subject it to the same *266 tests, as far as applicable, as they would in ascertaining tbe credit or weight due to other evidence, and after performing this duty, if they consider it unworthy of credit, it is their right and duty then to reject it. The instruction in question was not framed so as to present to the jury the correct test to be applied by them in determining the credit or weight to be given to the confession as evidence, and was properly refused by the trial court. .In addition to the authorities cited in the original opinion the following support the rule herein asserted: Young v. State, 68 Ala. 569 ; 3 Rice on Evidence, section 314; Simmons v. State, 61 Miss. 243 .

Petition overruled.