# State v. Stevenson

> West Virginia Supreme Court · July 25, 1962 · 147 W. Va. 211

URL: https://www.frixlaw.com/law-library/cases/9584629

## Case

- **Full name:** State of West Virginia v. Ernest Stevenson
- **Court:** West Virginia Supreme Court
- **Decided:** July 25, 1962
- **Citations:** 147 W. Va. 211; 127 S.E.2d 638
- **Precedential status:** Published
- **Opinion:** Dissent by Haymond
- **Judges:** Browning, Haymond, Raymond, Given
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Boles v. Stevenson, 379 U.S. 43 (1964).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9584629

## Opinion text

Haymond, Judge,
dissenting:
As the record indicates clearly that the defendant Ernest Stevenson, an indigent Negro youth twenty two years of age, who was represented by court appointed attorneys, did not have a fair trial and that his conviction upon the evidence by the jury that heard and evaluated it does not satisfy the requirements of due process, I can not concur in the decision of the majority of this Court which by a three to two vote affirms the judgment of the Circuit Court and the judgment of the Common Pleas Court of Cabell County which upholds his conviction of murder of the first degree and sentences him to death by electrocution.
It is my considered opinion that the judgment of the common pleas court is prejudicially erroneous in at least three particulars and for that reason I register this dissent.
Except the admissions in the written statement and the testimony of the defendant and in his oral confession to the three arresting officers while in their custody, the evidence upon which the prosecution relies for conviction is entirely circumstantial and in my judgment is not sufficient to support the verdict of murder of the first degree without recommendation. No one saw the defendant kill the deceased, or rape or attempt to rape her, or rob or attempt to rob her. The disheveled or disarranged condition of the clothes and undergarments of the deceased and the presence of spermatozoa in her vagina are not sufficient circumstantial evidence to establish rape or an attempt to commit rape when considered with the testimony of the husband of the deceased, who stated that they had been married for about twenty five years and lived together until the day of her death and the testimony of the doctor who examined the body and performed an autopsy during the afternoon of the day the body was discovered, who stated that such cells would be *239 present in a living or deceased female for a period of forty eight to seventy two hours after the occurrence of sexual intercourse.
The presence of twenty two dollars and several cents in the possession of the defendant when arrested likewise is not sufficient to show that he robbed or attempted to rob the deceased when considered together with other evidence relating to the money taken from the market in which the homicide was committed. The uncontradicted evidence of the owner of the market was that there were forty two dollars in the cash register at the conclusion of business on the night of the crime. Of the sum of approximately twenty two dollars, two or three dollars belonged to the defendant and the most that he took or could have taken of the forty two dollars would have been about twenty dollars. As he had no opportunity to spend the money which he had or took or to use it to purchase anything between midnight and the time of his arrest about eleven thirty o’clock that morning, it is clear that some person other than the defendant took the remainder of the forty two dollars. If the defendant had taken more than the approximate amount of twenty dollars he would have had it when arrested or if he had spent or otherwise disposed of it the manner of its disposition could readily have been discovered. The defendant testified that he did not know how he got the money; and when, how or from whom he took it was not determined or attempted to be determined and is sheer speculation. He could have obtained it with her consent or taken it either before or after the homicide by some means which were independent of or not connected with the killing.
Similar comments may be directed to the evidence relating to the commission of the homicide. Though one witness saw the defendant and the deceased standing at or near the counter in the front room of the market about twelve twenty five o’clock in the morning of the day the homicide was committed and though another witness saw the defendant standing in the doorway of the market between the closed front door and the open outer screen door about one ten o’clock the same morning, the witness who saw the de *240 fendant in the market also saw another person near the counter in the market whom he did not know and could not identify. The doctor who performed the autopsy on the body of the deceased testified that he discovered, in addition to the mashed and battered condition of the head and face of the deceased, an incision wound in the chest apparently caused by a knife which could have caused death. He stated that the deceased had a stab wound in her chest which “would kill her”. The defendant did not have a knife and no knife was found among his possessions. The door of the market was not locked when the owner came there about eleven o’clock the same morning. The market had been entered by breaking the rear door by some unknown persons other than the defendant about two or three months before the commission of the homicide. All the foregoing facts are established by undisputed evidence.
The presence of another unidentified person in the market a short time before the homicide, the failure to account for the missing portion of the forty two dollars not possessed by the defendant, the existence of the knife inflicted stab wound, and the absence of any knife on the person or among the possessions of the defendant indicate clearly that some unidentified person other than the defendant could have taken the missing unaccounted for portion of the forty two dollars and killed the deceased with a knife and the hammer before the defendant entered the rear room of the market and left it with the hammer in his possession. These undisputed facts show that there was ample opportunity for some other person to have committed the crime with which the defendant is charged and of which he has been convicted by evidence which to the extent that it may be. considered to be competent is in the main circumstantial in. character.
This Court has held in an unbroken fine of many cases since State v. Flanagan, 26 W. Va. 116 , that when the evidence relied on to convict a person of crime is in whole ox-in part circumstantial, the accused is entitled to an acquittal unless the guilt is proved to the actual exclusion of every reasonable hypothesis of innocence; that the circumstances fi-om which the conclusion of guilt may be drawn must be *241 established by full proof and must be consistent with, the hypothesis of guilt; that such evidence must to a moral certainty exclude every reasonable hypothesis but that of guilt; and that circumstantial evidence should always be scanned with caution. See State v. Bail, 140 W. Va. 680 , 88 S. E. 2d 634 ; State v. Allen, 139 W. Va. 818 , 82 S. E. 2d 423 ; State v. Burford, 136 W. Va. 472 , 67 S. E. 2d 855 ; State v. Clay, 135 W. Va. 618 , 64 S. E. 2d 117 ; State v. Cutlip, 131 W. Va. 141 , 46 S. E. 2d 454 ; State v. Aliff, 122 W. Va. 16 , 7 S. E. 2d 27 ; State v. Mounts, 120 W. Va. 661 , 200 S. E. 53 ; State v. Stutler, 115 W. Va. 393 , 176 S. E. 426 ; State v. Wolfe, 113 W. Va. 459 , 168 S. E. 656 ; State v. Kapp, 109 W. Va. 487 , 155 S. E. 537 ; State v. McKenzie, 108 W. Va. 208 , 150 S. E. 602 ; State v. Snider, 106 W. Va. 309 , 145 S. E. 607 ; State v. Whitehead, 104 W. Va. 545 , 140 S. E. 531 ; State v. Hunter, 103 W. Va. 377 , 137 S. E. 534 ; State v. Mininni, 101 W. Va. 611 , 133 S. E. 320 ; State v. Harrison, 98 W. Va. 227 , 127 S. E. 55 ; State v. Beall, 98 W. Va. 189 , 126 S. E. 569 ; State v. Dudley, 96 W. Va. 481 , 123 S. E. 241 ; State v. Bennett, 93 W. Va. 548 , 117 S. E. 371 ; State v. McHenry, 93 W. Va. 396 , 117 S. E. 143 . In State v. Flanagan, 26 W. Va. 116 , and in State v. Bennett, 93 W. Va. 548 , 117 S. E. 371 , citing 1 Starkie on Evidence, 507-513, and 3 Greenleaf on Evidence, Section 29, this Court, as guides to the safe administration of justice in criminal cases, in which the guilt of the accused is ascertained and determined upon circumstantial evidence, stated and approved these rules, to which it has consistently adhered:
“First. It is essential that all the circumstances from which the conclusion is to be drawn shall be estabhshed by full proof, and the party upon whom the burden of proof rests, is bound to prove every single circumstance which is essential to the conclusion, in the same manner and to the same extent as if the whole issue had rested upon the proof of each individual and essential circumstance.
“Second. All the facts and circumstances when established by full proof must be consistent with the hypothesis of the guilt of the accused.
“Third. It is essential that the circumstances should be of a conclusive nature and tendency. Evidence is always *242 indefinite and inconclusive when it raises no more than a limited probability in favor of the fact, as compared with some definite probability against it, whether the precise proposition can, or can not be ascertained. It is, on the other hand, of a conclusive nature and tendency, when the probability in favor of the hypothesis exceeds all limits of an arithmetical or moral nature. Such evidence is always insufficient where assuming all to be proved which the evidence tends to prove, some other hypothesis may still be true; for it is the actual exclusion of every other hypothesis, which invests mere circumstances with the force of proof. Whenever therefore the evidence leaves it indifferent which of several hypothesis is true, or merely establishes some finite probability in favor of one hypothesis rather than another, such evidence can not amount to proof, however great the probability may be.
“Fourth. It is essential that the circumstances should to a moral certainty actually exclude every hypothesis but the one proposed to be proved.”
It is my firm conviction that the circumstantial evidence relied on in this case does not meet or satisfy the requirements specified in the foregoing rules and that such evidence is wholly insufficient to sustain the conviction of the defendant which is primarily based on such evidence, for it does not actually and to a moral certainty exclude every other reasonable hypothesis of innocence. State v. Clay, 135 W. Va. 618 , 64 S. E. 2d 117 ; State v. Hunter, 103 W. Va. 377 , 137 S. E. 534 ; State v. Mininni, 101 W. Va. 611 , 133 S. E. 320 ; State v. Beall, 98 W. Va. 189 , 126 S. E. 569 ; State v. Gilfillen, 96 W. Va. 660 , 123 S. E. 578 ; State v. Dudley, 96 W. Va. 481 , 123 S. E. 241 .
It is true that the presence of the defendant in the market, his possession of a portion of the stolen money, his possession and disposition of the hammer, and the existence of blood stains on his shoes and clothing create strong suspicion, in the circumstances, of the guilt of the defendant, but they are not sufficient to establish his guilt beyond a reasonable doubt when considered alone or in connection with the other facts shown by the evidence. But suspicion, *243 however strong, is not enough; and a conviction based on mere suspicion of the guilt of the accused can not stand. State v. Clay, 135 W. Va. 618 , 64 S. E. 2d 117 ; State v. Crummitt, 129 W. Va. 366 , 40 S. E. 2d 852 ; State v. Hudson, 128 W. Va. 655 , 37 S. E. 2d 553 , 163 A.L.R. 1265 ; State v. Beall, 98 W. Va. 189 , 126 S. E. 569 ; State v. Chafin, 78 W. Va. 140 , 88 S. E. 657 ; State v. White, 66 W. Va. 45 , 66 S. E. 20 . See also State v. Cutlip, 131 W. Va. 141 , 46 S. E. 2d 454 ; State v. Mounts, 120 W. Va. 661 , 200 S. E. 53 ; State v. Stutler, 115 W. Va. 393 , 176 S. E. 426 .
The law requires the guilt of the defendant in a criminal case to be established, by competent evidence, beyond a reasonable doubt and the burden rests upon the State to prove the guilt of one accused of crime not merely by a preponderance of the evidence but by evidence sufficient to establish his guilt beyond a reasonable doubt. State v. Hudson, 128 W. Va. 655 , 37 S. E. 2d 553 , 163 A.L.R. 1265 ; State v. Campbell, 115 W. Va. 198 , 174 S. E. 797 ; State v. Scurlock, 99 W. Va. 629 , 130 S. E. 263 ; State v. Dudley, 96 W. Va. 481 , 123 S. E. 241 . This requirement has not been met or satisfied in this case, and the verdict of the jury, being without sufficient evidence to support it, should have been set aside by the trial court. State v. Hudson, 128 W. Va. 655 , 37 S. E. 2d 553 , 163 A.L.R. 1265 ; State v. Chafin, 78 W. Va. 140 , 88 S. E. 657 ; State v. White, 66 W. Va. 45 , 66 S. E. 20 ; State v. Zeigler, 40 W. Va. 593 , 21 S. E. 763 ; State v. Foster, 21 W. Va. 767 . The action of the trial court in refusing to direct a verdict of not guilty and, after the jury returned a verdict of guilty, in denying the motion of the defendant to set it aside and award the defendant a new trial constituted reversible error.
It was also error to admit the oral confession which the defendant made to the three arresting officers while he was in the custody of those officers who at the time were engaged in taking him from the place of his arrest to police headquarters in the city of Huntington. Before admitting the confession as testified to by each of the three officers, the trial court should have determined from evidence whether the confession had been freely and voluntarily made. This *244 the trial court did not do; instead it permitted each of the three officers to testify that the defendant told them that he committed the crime which they were investigating when their testimony concerning the confession showed that the confession was not made freely and voluntarily but instead was induced, procured or obtained by the threat of the officers to take him to the scene of the crime and the body of the deceased unless the defendant told them what they wanted to know about the murder for which they were holding him as a suspect. The express testimony of the three officers which disclosed the involuntary character of the confession rendered it inadmissible. For that reason the trial court, having been previously informed by the opening statement of the prosecuting attorney that the State would introduce the oral confession of the defendant, should have heard, in the absence of the jury, the evidence concerning the means by which it was induced or obtained and, after so having heard such evidence which was entirely undisputed, should have refused to permit the introduction of the confession in evidence and its consideration by the jury.
The first version of the confession was given by Officer Coleman. He testified that the officers placed the defendant “in the patrol car and started down 8th Avenue and on the way down we decided to stop at the scene of the crime and take him in to view the remains at the Atlantic Sea Food Store and Detective Salyers stopped the car in about fifty feet of the place and we proceeded and started to take the defendant inside and he said what are you taking me in there for and Detective Tomlinson said don’t you want to go in there and he said I don’t want those people to look at me and Detective Tomlinson said why don’t you want to go in there, why don’t you want to go inside and he said I don’t want to go and Detective Tomlinson asked him if he wanted to tell us about it and he said I will tell you what you want to know when we get to headquarters and Sergeant Tom-linson said no, you tell us now, did you do it, and he said yes, I did.”, and that they then “Took him to the police station. * * * .” (Emphasis supplied). Though there was no objection to this testimony at the time it was given, a defense motion to strike it, which was sufficient to challenge *245 its admissibility and to save the point, was made at the conclusion of the testimony of the witness and was overruled by the court.
The second version of the confession was given by Officer Salyers who testified that the officers placed the defendant in the cruiser and started down 8th Avenue, that the defendant “informed us that he knew nothing about this murder etc., and couldn’t understand why he would be wanted or why we wanted to talk with him and we drove West on 8th Avenue and pulled up in front of 1642, 8th Avenue, which was the Atlantic Food Shop and we told him that we were going to take him inside and in the meantime everybody was asking him to give us the information that we were seeking and tell us all about it and he, like I said, insisted that he knew nothing about it and at that time we started to take him out of the car and take him into the Sea Food Store, he told us that he didn’t want to face all those people and he said he would tell us what we wanted to know and Sgt. Tomlinson informed him that he would tell us then or we were going to take him inside and he again stated that he didn’t want to go inside where all those people were and face all those people and Sgt. Tomlinson asked him, he said, did you kill Mrs. Davis and he said, yes, sir, I did.” (Emphasis supplied.) The witness further testified that they did not get out of the car, that he informed the chief of police that the accused had admitted the offense, and that they then took the defendant to police headquarters. The defendant objected to all this testimony but his objection was overruled by the trial court.
The third version of the confession was given by Officer Tomlinson who, after stating that the officers found the defendant at the home of his sister, testified “we told him that we were going to arrest him and charge him with homicide and he kept denying it, so then we put him in the car and brought him down 8th Avenue, that was Officer Coleman, Detective Salyers and myself and we stopped in front of the Atlantic Sea Food Shop, not directly in front but about fifty feet East of it I guess and I told him I was going to take him inside the place of business. He said don’t do that, he said *246 I will tell you what you want to know or something to that effect, so I said, did you commit this crime — He said I will tell you when we get to headquarters and I said no, I want to know now and he said don't take me inside. I will tell you when we get down to headquarters and I said I want to know now did you commit this crime and he said, yes, I did, please don’t take me inside, take me to headquarters. After he told me that he committed the crime we proceeded to police headquarters with him.” (Emphasis supplied) . This testimony was objected to by the defendant but this objection was overruled.
It is clear beyond question, from the testimony of these officers, that this confession was obtained from the defendant without advising him of his legal rights or informing him that he could refuse to make any statement or that any statement by him should be freely and voluntarily made or that any statement by him would be used against him. On the contrary the conduct of the officers was in the nature of a demand that he confess his guilt and submit to voluntary self-incrimination. It is equally clear that he was forced to confess that he committed the crime by the threats of the officers who made it clear that unless he did so they would take him forcibly to the scene of the crime and the remains of the deceased, that he confessed that he committed the crime for the sole and only purpose of preventing the officers from consummating such threat, that the only way he could cause them to desist from their efforts to carry out the threat and he could avoid its accomplishment was to make such confession immediately, and that because he confessed to the crime he was not required to go to the scene of the crime or to view the remains of the deceased. It is evident that the officers would have carried out the threat to take him to the scene and the remains of the deceased if he had not confessed that he committed the crime. They were in the act of executing their threat when he confessed and they did not cease their efforts until he did confess. A confession so obtained is not a voluntary confession but is a confession which results from compulsion and for that reason is clearly not admissible in evidence.
*247 This Court has held, that “It devolves upon the trial court in the first instance, before admitting it, to determine from evidence whether a confession of guilt has been freely and voluntarily made, and not under duress or threats or by some inducement made or held out to the accused by someone in authority, of benefits or reward of a worldly or temporal character, or in mitigation of punishment; and the burden is upon the State to show to the satisfaction of the court facts justifying the admission of such confession. Point 3, syllabus, State v. Brady, 104 W. Va. 523 , 140 S. E. 546 ; Point 6, syllabus, State v. Bruner, 143 W. Va. 755 , 105 S. E. 2d 140 ; Point 4, syllabus, State v. Vance, 146 W. Va. 925 , 124 S. E. 2d 252 . (Emphasis supplied).
In obtaining the confession of the defendant by the threat to take him to the scene of the crime the officers violated the requirement of the law that a confession of guilt mus't not be obtained by the threat of someone in authority; and the action of the trial court in admitting a confession so obtained, being contrary to the requirement that a confession of guilt to be admissible must have been freely and voluntarily made, constituted reversible error.
The action of arresting officers in the exercise of the power of inquisition through duress of prisoners in their custody is discussed at length and condemned in the opinion delivered by Judge Maxwell, in Floyd v. Chesapeake and Ohio Railway Company, 112 W. Va. 66 , 164 S. E. 28 , in this language:
“The peace and good order of society depend in no small measure upon the efficiency of the custodians of the law, who not infrequently risk their lives in public service. In their faithful and proper discharge of duty they are to be encouraged and upheld. But their zeal must not outweigh their discretion. That they may interrogate prisoners with reference to matters under investigation may not reasonably be gainsaid (State v. Richards, 101 W. Va. 136 , 132 S. E. 375 ); in fact it is ordinarily highly desirable that they do so, but such interrogation must be within proper and reasonable bounds. That the temptation to exceed proper bounds is great and the provocation often acute does not in *248 any sense justify the officers in turning lawless themselves. Such official lawlessness may manifest itself in a multitude of refinements of physical violence, crass and stupid or subtle and acute; or it may be of a purely mental type. The devices are many, but the object is always the same, namely, to force confession of guilt or the disclosure of facts which will lead to other developments. One of the plans often employed is to obtain the prisoner incommunicado in jail, or in a place other than a jail or lockup as in this case.
“The fact that this entire class of conduct involves flagrant violation of constitutional guarantees does not seem to deter those who see fit to indulge in it. That the employment of so-called ‘third degree’ methods in dealing with suspected criminals are neither expedient nor efficient is demonstrated by the fact that, in England, according to the best information obtainable, such methods among police officers are practically unknown, and it is common knowledge with us that among the British the enforcement of the criminal law is of a high degree of efficiency.
“To a suggestion that there is no inherent injustice in obtaining from a criminal a confession through physical or mental suffering far less than he has afflicted on his victim, the obvious reply is that the inevitable destructive and demoralizing effect of such practices upon the administration of the criminal law condemns the conduct as both barbarous and impractical. And then, too, the accused may be wholly innocent. The officers may have the wrong man. Statistics disclose that this has happened frequently. (This very plaintiff was discharged by the commissioner because of insufficient evidence against him.) When an arresting officer arrogates to himself punitive powers, he becomes a lawbreaker and should be dealt with as such. Police inquisition by compulsion cannot be tolerated or condoned if the organic law of the nation and states is to remain paramount. Such conduct is inherently at variance with fundamental American concepts of right and justice.
“The defense of ‘third degree’ methods is built on the postulates, first, that they are necessary, and second, that constitutional methods of procedure must yield to practicality. *249 Both propositions are unsound. The unsoundness of the first is demonstrated by the satisfactory results which obtain where such methods are not employed, and the second is refuted by the inherent truth of the homely maxim, ‘Two wrongs do not make a right.’
“Much difference may exist in the kinds of unlawful pressure brought to bear upon prisoners; some of it may be much more revolting than other, but the primary question remains the same, namely, has the prisoner been deprived of his constitutional rights? ‘No person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers.’ Const, of West Virginia, Art. Ill, sec. 10. ‘Due process’ means procedure which follows those ‘rules and forms, which have been established for the protection of private rights * * * .’ Peerce v. Kitzmiller, 19 W. Va. 564 . It is such procedure as is within the limits of those fundamental principles of liberty and justice which underlie our civil and political institutions. Hurtado v. California, 110 U. S. 516 ; Ry. Co. v. Iowa, 160 U. S. 380 ; In re Kemmler, 136 U. S. 436 . No procedure is just which deprives a man of the opportunity to be heard respecting the justice of the punishment to be inflicted.
“The compelling of an arrested person, by physical or mental suffering, to admit participation in crime, is viola-tive of still another constitutional guaranty, both State and Federal: No person, in any criminal case, shall be compelled to be a witness against himself. 5th Amdmt. Const. U. S.; Const. West Virginia, Art. III, sec. 5.
“Where are the Palladia of our liberty, if arresting officers, in the secrecy of secluded places, may with impunity apply to prisoners methods of the days of the rack and the wheel? This sort of thing — a relic of the dark ages — is revolting to enlightened, liberty-loving people and cannot be too severely condemned.”
In 23 C.J.S., Criminal Law, Section 826a, the text contains these statements: “It is elementary law that a confession induced by threat or fear is involuntary and inadmissible, not only by statute in many jurisdictions, but also *250 at common law, and “If a confession was induced by threats, the degree of fear inspired is not material, since any threat which produces in the mind of accused apprehension of harm is sufficient to invalidate the confession. In fact, it has been stated that threats automatically invalidate the confession, and there is no need to measure their effect on the will of the victim.” See State v. Hinz, 78 S. D. 442, 103 N. W. 2d 656 . It is well settled that “Public policy requires the rejection of confessions obtained by means of threats, fear, violence, force, intimidation, coercion, or duress, since a confession obtained by such means is a flagrant violation of the principles of freedom and justice. Confessions induced by such means are excluded on several grounds. They may be excluded on the ground that they are testi-monially untrustworthy, or on the ground that to use them would be in violation of rights guaranteed by the Constitution, such as the guaranty against compulsory self-incrimination.” 23 C.J.S., Criminal Law, Section 826c.
Though on conflicting evidence concerning the means by which a confession was obtained the confession was held to be admissible, this Court in State v. Goldizen, 93 W. Va. 328 , 116 S. E. 687 , used this language in stating the law with respect to the admissibility of a confession of guilt: “It is well settled by the decisions of this state and those of Virginia that a confession may not be given in evidence if it appears that it was obtained from the accused by some inducement of a temporal or worldly character in the nature of a threat, or some promise or benefit held out to the accused by which he may expect to escape from the consequence of his crime, or mitigation of punishment, by some one in authority or by some person with the apparent sanction of those in authority.” (Emphasis supplied). See also State v. Mayle, 108 W. Va. 681 , 152 S. E. 633 . Here the defendant confessed because he had to do so to prevent his enforced presence at the scene of the crime from which the body of the deceased had not then been removed, and by confessing that he committed the crime he escaped from what for him was a dreaded experience.
All the foregoing facts are established by the uncontra-dicted evidence of the officers who testified about the con *251 fession made by the defendant; and these facts bring his confession within the prohibition prescribed by this Court in the Goldizen case.
In State v. Parsons, 108 W. Va. 705 , 152 S. E. 745 , this Court held in the syllabus that “When the representations of one in authority are calculated to foment hope or despair in the mind of the accused to any material degree, and a confession ensues, it cannot be deemed voluntary.” In the opinion stating the law governing the admissibility of a confession as expressed in 3 Russel on Crimes, (5th Ed.) 478, this Court approved this quotation “But a confession, in order to be admissible, must be free and voluntary: that is, must not be extracted by any sort of threats -or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. * * * A confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted.” (Emphasis supplied). A confession obtained by any degree of influence amounting to duress must be excluded because the law can not measure the effect of any such influence. People v. Davis, 399 Ill. 265 , 77 N. E. 2d 703 . Tested by the foregoing principles the admission of the oral confession of the defendant is almost incredible and is utterly unjustified.
The opinion in the Parsons case also contains these statements: “We cannot ascertain the part played by the statements of the officer, in prompting the confession. When the representations of one in authority are calculated to foment hope or despair” (the defendant hoped to escape and by confession succeeded in escaping from his enforced presence at the scene of the crime) “in the mind of the accused to any material degree, and a confession ensues, it cannot be deemed mvolutary. This is not an instance of mere adjuration * * * , but of adjuration accompanied by an inducement. The inducement invalidates the confession. Wharton’s Crim. Ev. (10th Ed.), sec. 645-b.”
*252 In State v. Zaccario, 100 W. Va. 36 , 129 S. E. 763 , the prosecution introduced, over the objection of the defendant, evidence of an alleged confession by him, after his arrest, to the arresting officer, without first showing that it had been freely and voluntarily made, just as that fact was not, and could not have been, shown in the case at bar for the reason that the evidence of the arresting officers shows that the confession was induced by the threat to take the defendant to the scene of the crime unless he confessed that he committed the crime. The defendant in the Zacearlo case, as did the defendant in the case at bar, denied that he made a confession. In that case this Court held in the syllabus that: “To render admissible evidence of an extra-judicial confession by an accused to one in authority, or some person acting under the apparent sanction of those in authority, it must appear that the confession was freely and voluntarily made and without previous inducements of a temporal or worldly character in the nature of threats or intimidation, or some promise or benefit held out to the accused by which he may expect mitigation of punishment or to escape from the consequence of his crime.” (Emphasis supplied). In the opinion this Court used this pertinent and decisive language: “Confession of guilt by an accused is certainly not usual, natural or ordinary. The State should have shown hy affirmative testimony as a condition precedent to its admissibility that the confession was not made under inducements of fear or favor.” (Emphasis supplied). The Zaccario case is directly in point and shows that the oral confession was clearly inadmissible. That case alone should have controlled the decision in the case at bar and should have produced a reversal of the judgment of the trial court.
In People v. Siemsen, 153 Cal. 387 , 95 P. 863 , the Supreme Court of California said: “The slightest pressure, whether by way of inducement to confess, or threat if confession is withheld:, is sufficient to require the exclusion of the confession.” (Emphasis supplied).
In People v. Berve, 51 Cal. 2d 286 , 332 P. 2d 97 , in reversing a conviction of murder of the second degree because of the admission of an enforced confession, the opinion contains these statements:
*253 “The use of confessions in a criminal prosecution obtained by force, fear, promise of immunity or reward constitutes a denial of due process of law both under the federal and state Constitutions requiring a reversal of the conviction although other evidence may be consistent with guilt. Brown v. State of Mississippi, 297 U. S. 278, 285-286 , 56 S. Ct. 461 , 80 L. Ed. 682 ; Ashcraft v. State of Tennessee, 322 U. S. 143 , 64 S. Ct. 921 , 88 L. Ed. 1192 ; Malinski v. People of State of New York, 324 U. S. 401 , 65 S. Ct. 781 , 89 L. Ed. 1029 ; People v. Siemsen, 153 Cal. 387, 394 , 95 P. 863 ; see, People v Sarazzawski, 27 Cal. 2d 7 , 161 P. 2d 934 .
‘ “Use of involuntary verbal confessions in State criminal trials is constitutionally obnoxious not only because of their unreliability. They are inadmissible under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community’s sense of fair play and decency. * * * Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society.” Rochin v. People of California, 342 U. S. 165, 173-174 , 72 S. Ct. 205, 210 , 96 L. Ed. 183 .” ’ See also Daniels v. State, 243 Ala. 675 , 11 So. 2d 756 , certiorari denied, 319 U. S. 755 , 63 S. Ct. 1168 , 87 L. Ed. 1708 ; Brooks v. State, 117 So. 2d 482 .
In Williams v. State, 89 Okla. Cr. 95 , 205 P. 2d 524 , the defendants while under arrest for murder and prior to arraignment before a magistrate, were separately taken to a funeral home to view the body of the deceased and subsequently the defendant Williams was taken to the home of the deceased where the homicide was committed and there handcuffed to the bed until he decided to talk to one of the officers, who waited nearby for such an occurrence; and sometime later the defendant signed a written confession of guilt. The Criminal Court of Appeals declared that the action of a peace officer in taking the defendants to the funeral home to view the body of the deceased and in taking one defendant to the scene of the killing and handcuffing him to a bed, in an attempt to obtain confessions, was improper and that when a defendant has been given cruel and unusual treatment or has been promised benefits in order to *254 obtain from him a statement of confession, such facts should be considered as a violation of his constitutional rights and the due process clause of the federal and state Constitutions. In that case the later pleas of guilty of the defendants were accepted but the original sentence of death were modified to terms of life imprisonment. In so modifying the sentences the court held in points 1 and 2 of the syllabus that “Statements or confessions made to officers while defendants are under arrest and prior to being taken before an examining magistrate may be either voluntary or involuntary, depending upon the circumstances. If voluntary, they are admissible. If involuntary, they are inadmissible.”; and that “The question of whether a statement made to a peace officer by a defendant while under arrest and prior to his arraignment before a magistrate is a voluntary or involuntary statement is a question of law for the court. It should be heard and determined in the absence of the jury. If the court determines that it is involuntary it should not be presented to the jury. If admitted as voluntary and on appeal this court determines it is involuntary or contrary to the Constitution of the United States, or this State, the case will be reversed.” See also State v. Hinz, 78 S. D. 442, 103 N. W. 2d 656 . This is exactly what the trial court should have done in the case at bar and is precisely what the trial court did not do. It is clear to me that its failure to follow the pronouncements of the Oklahoma court and of this court in State v. Brady, 104 W. Va. 523 , 140 S. E. 546 ; State v. Bruner, 143 W. Va. 755 , 105 S. E. 2d 140 ; and State v. Vance, 146 W. Va. 925 , 124 S. E. 2d 252 , was prejudicial error which requires reversal of its judgment convicting the defendant and imposing the sentence of death.
Without the clearly inadmissible oral confession of the defendant his conviction would not have been possible and its erroneous admission in evidence was highly prejudicial to the defendant. The admission of incompetent evidence, here the involuntary oral confession of the defendant, is presumed to be prejudicial and is cause for reversal unless it appears, and it does not appear, that the verdict of the jury could not have been influenced by such evidence. Slater v. United Fuel Gas Company, 126 W. Va. 127 , 27 S. E. 2d 436 ; *255 Mitchell v. Metropolitan Life Insurance Company, 124 W. Va. 20 , 18 S. E. 2d 803 ; State v. Stone, 100 W. Va. 150 , 130 S. E. 124 ; Alford v. Kanawha and West Virginia Railroad Company, 84 W. Va. 570 , 100 S. E. 402 ; State v. Tygart Valley Brewing Company, 74 W. Va. 232 , 81 S. E. 974 ; Ewers v. Montgomery, 68 W. Va. 453 , 69 S. E. 907 ; State v. Hull, 45 W. Va. 767 , 32 S. E. 240 ; State v. Musgrave, 43 W. Va. 672 , 28 S. E. 813 . The facts and the circumstances disclosed by this record do not overcome but instead sustain the presumption. It is utterly unthinkable to believe that in the absence of the oral confession the jury would have condemned him to death by its verdict of guilty of murder of the first degree as charged without recommendation that he be sentenced to life imprisonment in the penitentiary. The rule with respect to the effect of the admission of incompetent or illegal evidence announced and adhered to in the decisions of this Court has been stated in these words: “Where illegal evidence is admitted against the objection of a party, it will be presumed that it prejudices such party, and if it may have prejudiced him, though it be doubtful whether it did or not, it will be cause for reversal of the judgment; but, if it clearly appear that it could not have changed the result if it had been excluded, it will not be cause for reversing the judgment.” Point 1, syllabus, State v. Hull, 45 W. Va. 767 , 32 S. E. 240 ; State v. Musgrave, 43 W. Va. 672 , 28 S. E. 813 .
The third error which calls for reversal of the judgment is the clearly established and unquestioned misconduct of the jury in its consideration and decision of this case. This misconduct was flagrant and persistent and was violative of both the mandate of the statute and the express command of the trial court. Though the statute, Section 6, Article 3, Chapter 62, Code 1931, as amended, does not, as formerly, forbid the separation of the jury in a capital case it expressly directs that, after a jury in a case of felony punishable by death is impaneled and sworn, the jury shall be placed in the custody of the sheriff or other officers designated by the court until they agree upon a verdict or are discharged by the court and that neither the sheriff nor other officer shall converse with or permit anyone else to converse with a juror *256 unless by leave of the court. Before each adjournment the trial court told the jurors that they would be placed in the custody of the sheriff when absent from the courtroom, that they should not become separated from each other, and that they should not discuss the case with each other or permit anyone to discuss it with them or in their presence. Notwithstanding the command of the statute and the instructions of the trial court, the members of the jury, though technically in the custody of two deputy sheriffs, while spending two nights in a hotel, were actually separated into small groups on four different floors of the building and most of them during most of the time were out of the presence of the officers. This occurred while the jurors were going to and from their various rooms, and in meeting each morning in the lobby of the hotel, to which place most of them went unaccompanied by either of the officers. Sometime after the evening meal and until about midnight during each of the two nights at the hotel, at least five members of the jury engaged in a card game in a room regularly occupied by three jurors and the jurors who came to that room did so and left while unaccompanied by any officer. In fact, the jurors were not only separated into groups of two, three or four members but were supervised in a manner which permitted them to go, singly or in groups, to and from their rooms on different floors and to the lobby while unattended by an officer. Most of them could have left the hotel after they went to their room to spend the rest of the night, without being detected by the officers, if they had desired to do so. Television and radio sets were in some of the rooms occupied by the jurors and some of them watched some television programs. Several jurors made telephone calls from the hotel and to the hotel telephone operators. Though all of the jurors who made such calls, most of which were to their wives, testified that they did not in such calls discuss the case, and in this they are corroborated by the wives who also testified, and that they did not see or hear any television or radio broadcasts concerning the case, there was ample opportunity for them to communicate by telephone concerning the case with persons outside the hotel or to the telephone operators at the hotel desk who did not testify about *257 the calls made to them. Though the hotel kept a record of telephone calls from the rooms to persons outside the hotel, it kept no record of telephone calls from outside the hotel to any of its guests and in consequence there is no way to determine, except from the jurors, whether any persons outside the hotel called and talked by telephone to any of the members of the jury.
This Court in cases under the prior statute which forbade the separation of the jury in a felony case has considered the effect, in various circumstances, of separation by and misconduct of a jury during the trial of a felony case. In State v. Robinson, 20 W. Va. 713 , in which the defendant was convicted of murder of the first degree and the sentence of death was imposed, this Court stated the rule to be applied to cases involving the improper separation of and misconduct by a jury in the trial of a felony case and held in Points 15 and 16 of the syllabus that “A mere separation of the jury will not entitle the person to a new trial; but where there has been an.improper separation of the jury during the trial, if the verdict is against the prisoner, he is entitled to the benefit of the presumption, that such separation has been prejudicial to him, and the burden of proof is upon the prosecution to show beyond a reasonable doubt, that the prisoner has suffered no injury by reason of the separation. If the prosecution fails to do this, the verdict will be set aside. and that “The same rule should be applied, to all cases of misconduct or irregularity by the jury during the trial which is of such a character as to raise a presumption that the prisoner was prejudiced thereby.” This Court also said in Point 17; of the syllabus, that in any such case the testimony' of jurors should be received with great caution. The foregoing rule has been adhered to and approved in numerous subsequent cases. State v. Muncey, 102 W. Va. 462 , 135 S. E. 594 ; State v. Cottrill, 52 W. Va. 363 , 43 S. E. 244 ; State v. Clark, 51 W. Va. 457 , 41 S. E. 204 ; State v. Cotts, 49 W. Va. 615 , 39 S. E. 605 , 55 L.R.A. 176 ; State v. Harrison, 36 W. Va. 729 , 15 S. E. 982 , 18 L.R.A. 224 .
In the Robinson case two jurors were permitted by the officer in charge of the jury to enter and remain for some *258 time in a hotel toilet while two other persons were in or had entered the toilet, though it did not appear that any conversation occurred between the jurors and such persons, and sealed letters were sent to and received by some of the jurors during the trial of the case. Concerning the separation of the jury this Court said in Point 18 of the syllabus that “Where two of the jury trying a felony-case were taken in charge of an officer to the foot of the stairs in a hotel, where the jury were staying, and then the officer left them and they went into a water-closet, and a stranger had just gone into the closet before them and, afterwards another stranger went into the same water-closet, and the officer’s back was turned on them, when the stranger went into the closet, and the two jurors remained in the closet some time in the absence of the officer with the strangers, this is such a separation of the jury, as will entitle the prisoner to have the verdict set aside and a new trial granted, though there be no evidence, that conversation was had between the strangers and the two jurors while in the closet, about the case then on trial. And the presumption, that the prisoner was prejudiced by such separation of the jury, is not rebutted by the several affidavits of all the jurors and the officers having them in charge made before the affidavits of such separation, that there was no separation of the jury during the trial and no opportunity offered any one to tamper with the jury.” As to the reception of the letters this Court also said in Point 21 of the syllabus that “The reception of sealed letters by jurors during the trial of a felony, and especially a capital case, renders the verdict vicious; and it should be set aside and a new trial granted the prisoner, who has been convicted, although the jurors in the absence of the letters swear, that none of such letters so received in any manner related to the case on trial.”
In State v. Muncey, 102 W. Va. 462 , 135 S. E. 594 , in which the defendant was convicted of murder of the second degree this Court set aside the verdict because as shown by affidavits one of the jurors left the courtroom during the trial and remained alone for several minutes in another room with a person who called the juror from the courtroom. In *259 that case this Court reaffirmed and adhered to the rule stated in the Robinson case.
The opinion in the Muncey case contains these statements:
“The rule at common law required the jury to be kept together in both civil as well as criminal cases. It was much more rigid than now obtains in felony cases. The reason of the rule was two-fold. First, it tended to prevent intemperance on the part of the jury and accelerate the finding of the verdict. To this end, unless permitted by the court, they could not have meat, drink, fire, or candle, until they reached an agreement. Second, it prevented them from having any communication with any of the parties interested and from receiving any fresh evidence in private, and any violation of the rule in these latter respects vitiated the verdict. * * * .
“The affidavits in this case disclose the very loosest practice in the management of the jury — a practice that is detrimental to the interests of justice and hazardous to the life and liberty of the citizens. It may be that the juror in question was not improperly influenced, but as we have seen that consideration does not satisfy the law. The facts here reveal an opportunity to improperly influence a juror. The burden is cast upon the State to rebut the presumption. It has made no attempt to do so. The record fails to disclose any reason for its inaction. This Court will not disturb a verdict on account of such separation where the State has rebutted the presumption that such separation has been prejudicial to the prisoner by proof that nothing improper happened during such separation. In showing this the court has gone to the extent of allowing jurors to testify, within certain limits. State v. Cotts, supra. The act complained of here was of such character as clearly tended to excite suspicion and thus bring reproach upon the administration of justice. A proper vigilance demanded in a trial of a case of this magnitude, on the part of the court and court officials, would have prevented this situation. Charged by the law with the duty of explaining such misconduct, the State’s representatives sat supinely by and made no effort to do so. It is such uncalled for derelictions of duty on their part that is justly creating in the minds of the people a feeling of resent *260 ment over the law’s delays. Under the proper rule as ascertained from the position generally taken by the American Courts and the policy of the law, and so firmly established in this State as to not be overthrown or departed from, we are constrained, although reluctantly, to hold that the unexplained separation shown here is such as to demand a reversal of the case.”
The misconduct of the officers in the case at bar was careless and irresponsible; that of the jurors disobedient and inexcusable. The slight degree of supervision exercised by the officers left the jurors free to go unattended by any of the officers to almost any part of the hotel, or even to leave it, without detection; and to place at will telephone caffk to any person. The difference between the unrestricted movements within the hotel of the jurors who placed telephone calls to their wives and an undetected visit by them to their homes there to talk to their wives directly instead of by telephone is only a difference of degree. As stated in the opinion in State v. Robinson, 20 W. Va. 713 , that “No one would say, if a jury disregarding the charge of the court should separate and go among a crowd of people, that the verdict rendered by them against a prisoner in a felony case ought not to be set aside, although every juror might swear, that he had no conversation with any one on the case they were trying, and heard nothing said by others in relation thereto.”, I assume that no one would assert that the verdict which condemns the defendant to death should not be set aside if the telephone conversing jurors had carried on the same conversation with their wives at home and they and their wives had sworn that such conversation did not relate to the case on trial.
Manifestly the separation of and the misconduct by the jury were sufficient to create the presumption that such actions were prejudicial to the defendant and in my opinion the testimony of the officers, the jurors and their wives did not show beyond a reasonable doubt that he had not suffered injury by reason of such separation and misconduct and, for that reason alone, the verdict should be set aside.
*261 The testimony of the jurors, which the defendant is necessarily unable to controvert, should be received and considered with the utmost caution inasmuch as the jurors would naturally be inclined to deny or to refrain from disclosing any misconduct which other sources of information could not furnish or make known; for no one except the jurors themselves knows, or can know, what the individual jurors actually did during the frequent and considerable periods of time that they were unattended by either of the officers to whose custody they were committed by the trial court.
The realization that a defendant, in a capital case, has been condemned to death, upon facts dependent on equivocal circumstantial evidence and an involuntary confession obtained by means of the threat of the arresting officers, by a jury whose misconduct in disobedience of the command of the trial court not to separate from each other is unquestioned and at least five of whose members spent some time during each of the two nights immediately preceding the rendition of the verdict in a game of cards, instead of reflecting upon their awesome responsibility of determining whether the defendant should live or be put to death, is so shocking to my sense of fairness, humanity, decency, and justice that I am constrained by the dictates of reason and of my conscience to dissent from any judgment which confirms the verdict of the jury in this case.
If the defendant is guilty of this brutal killing, as the prosecution contends he is, he can doubtless readily be convicted in a new trial upon competent evidence by a jury which would comply with the mandate of the statute and obey the command of the trial court concerning its conduct during such trial. But whether he is guilty or innocent of the crime with which he is charged, he is entitled to and should be given a fair trial and, without any reflection whatsoever upon any official participant, this, in my opinion, he did not receive during the proceedings which resulted in his conviction.
For the reasons stated and under the authorities cited and quoted from in this opinion, I dissent from the decision of the majority and, being in complete disagreement with that de- *262 cisión, I would reverse the judgments of the circuit court and the common pleas court, set aside the verdict of the jury, and award the defendant a new trial.
Judge Given participated in the decision of this case and dissented on the ground that the admission of the oral confession of the defendant and the separation and misconduct of the jury constituted reversible error and, but for his death before the preparation of the majority opinion and this dissenting opinion, he would have concurred in the views expressed in this dissent with respect to the admission of the oral confession and the misconduct of the jury.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9584629. Public record. Not legal advice.