# Brown v. State > Supreme Court of Delaware · May 26, 1954 · 48 Del. 427 URL: https://www.frixlaw.com/law-library/cases/9755903 ## Case - **Full name:** Mary Louise Brown, Defendant Below, Appellant, v. State of Delaware, Plantiff Below, Appellee - **Court:** Supreme Court of Delaware - **Decided:** May 26, 1954 - **Citations:** 48 Del. 427; 9 Terry 427; 105 A.2d 646 - **Precedential status:** Published - **Opinion:** Dissent by Tunnell - **Judges:** Southerland, Wolcott, Tunnell - **Cited by:** 3 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9755903 ## Opinion text *435 Tunnell, Justice (dissenting): Being of the opinion that the Superior Court trespassed upon the constitutional rights of defendant, and did so in respect to a vital issue of the case, I cannot but conclude that the former trial was thereby tainted and that defendant is entitled to a new one. My reasons follow. On the day after the homicide, a policeman questioned defendant, an illiterate colored woman, typing out his questions and her answers as they went along. The transcript of this interrogation occupies eleven pages of the record before us and is too long to copy into the margin, but a summary of some of the features in it favorable to defendant will suffice for present purposes. Defendant therein stated that she and her husband, the deceased, had been getting along badly for about eight years; that on the night before the shooting she had been out all night with another man, drinking and carousing; that in the morning her husband and two friends of his encountered her in front of the home of her companion of the night before; that her husband then and there “drawed a knife on” her and said “I am going to cut your throat; I am going to kill you”; that her husband, however, on that occasion was restrained by one of his companions from carrying out his threat; that her husband at once drove her in their car to their home nearby; that what immediately thereafter took place, in her own language, was this: “Yes, we were still arguing, and my husband and I went up to our bedroom as he wanted his ‘damn money’. I opened the cedar chest and gave him his money. He then started to leave the room and I said something to him — I don’t remember what it was — he turned around and said: T will kill you,’ and the man I know as ‘T’ grabbed him. I was standing on the other side of the bed at this time, and I reached down under the bureau where I kept a .38 revolver and I took it out, and as my husband was coming back through the door, I pointed the gun at him and shot it. I missed him, and I don’t know where the *436 bullet went. He kept on walking towards me around the foot of the bed, and when he was at the foot of the bed I fired the gun again at him, and my husband fell on the cedar chest. After I saw that I had shot him, I said: ‘I am sorry, I am sorry, I am sorry this had to happen,-’ ” In response to a later question, defendant insisted that she had not reached for the gun under the bureau until after her husband had said, “I will kill you.” Replying to another question, she said, “I always feared my husband as this wasn’t the first time he drawed a knife on me.” In its charge to the jury, the court repeated the language in respect to a “confession of guilt reduced to writing” which is set out in the report of State v. Brinte, 4 Penn. 551 , 565, 58 A. 258 . As there was no other paperwriting in evidence except this statement, the jury could have drawn no inference from what the court said in that portion of the charge except that the court considered this written statement by the defendant to be a confession of guilt. What is murder, and the differences between degrees of murder, are in this jurisdiction highly technical questions, not easy for a trained legal mind to grasp, and, of course, much harder to explain in simple language to a jury. Compare comments in Bantum v. State, 7 Terry 487 , 85 A. 2d 741, 750 . But everyone knows what is meant by a “confession” or “a confession of guilt”. Since this was an indictment for murder, it therefore follows that whatever uncertainty the jurors might have entertained about the definition of murder, they could reasonably conclude that they knew at least this, that the court considered defendant’s statement to make out a case of it and, consequently that if the statement should be believed in its entirety, the proper verdict would be “guilty”. My own view of the matter is quite the antithesis of the inference which logically follows from the Superior Court’s having charged on confessions. I consider that the grim picture por *437 trayed by this statement was doubtless designed to be, and if accepted verbatim, actually was, exculpatory in nature. Here was a woman against a man, a man who had just brandished his knife and threatened to cut the woman’s throat. Presumably, he still had the knife, 1 for there is no suggestion that he had disposed of it or that any one had taken it away from him. This was a man whose violent impulses the woman had long feared, and, indeed, had freshly inflamed by her own improper conduct. There she was, in an upstairs room, with him between her and the exit. Coming toward her, undeterred by a third party’s futile attempt to restrain him, he declared his intention to kill her. She reached for a gun and shot at him. Even being shot at did not stop or turn him; he stalked on. She shot at him a second time, this time finding the mark. Is this necessarily murder? On the contrary, this statement, when taken alone, to my mind makes out a case of self-defense. The jury, of course could ultimately construe this statement as they found a study of all the evidence in the case to require. They could not convert it into a confession, however, without discrediting something in it, or construing something against defendant which was susceptible of a construction in her favor, or introducing into it new facts which would throw a different light upon it. But to do this weighing, rejecting, substituting, and revising, and thus to reach conclusions on disputed issues of fact, in this state is the exclusive prerogative of the jury. Article 4, Sec. 19, of the constitution forbids judges in jury trials to comment on the weight or credibility of the evidence; they are permitted only to “state the questions of fact in issue and declare the law.” This is the constitutional admonition which I believe was violated. The fact that the judicial slip was of a species most easily made, and may very well have been inadvertent, takes nothing away from its effect. *438 Questions have often heen raised as to whether the error resulting from such a comment as the instant one is prejudicial. It is not surprising to find common agreement among courts that it is, for it has an obvious and direct bearing upon the nature of the verdict. The points with which we are here concerned were well discussed by Chief Justice Bleckley, speaking for the Supreme Court of Georgia, in Fletcher v. State, 90 Ga. 468 , 17 S. E. 100, 101 , where he said: “The accused made no confession of guilt, nor did he intend to make any. * * '. It is evident that the declarations were made with an exculpatory object, but, of course, they might have had an inculpatory effect. This would depend upon the view which the jury might take of them in connection with all other facts and circumstances disclosed by the evidence. The court, overlooking the distinction between confessions of guilt and admission of mere evidentiary facts not necessarily inconsistent with innocence, erred in charging anything whatever on confessions of guilt. There was no evidence on which to base that element of the charge. What the court said to the jury on the subject was well calculated to prejudice the prisoner, for it might have induced the jury to think that the declarations shown to have been made by him could be treated, not only as a part of the material from which an inference of guilt might be drawn, but as a confession of guilt, direct or indirect, made by himself. There is a very wide distinction between admitting the main fact and admitting some minor or subordinate fact or series of facts which could be true whether the main fact existed or not. This distinction has been pointed out at least twice by this court, and frequently by other courts. Dumas v. State, 63 Ga. 600 ; Covington v. State, 79 Ga. 687 , 7 S. E. 153 ; People v. Strong, 30 Cal. 151 ; People v. Parton, 49 Cal. 632 ; People v. Velarde, 59 Cal. 457 ; State v. Knowles, 48 Iowa 598 ; and see 1 Greenl. Ev. § 170.” Similar statements and rulings have been made by the courts of last resort of many states other than Georgia and other than those covered by the above citations in the Georgia op in- *439 ion. Typical are State v. Heidenreich, 29 Or. 381 , 45 P. 755 ; People v. Cismadija, 167 Mich. 210 , 132 N. W. 489 ; Ledbetter v. State, 61 Miss. 22 ; and People v. Sovetsky, 323 Ill. 133 , 153 N. E. 615 . And there is a virtually inexhaustible list of authorities to the same effect in 8A Words and Phrases, Confession, pp. 45-61. The several factual findings made by the majority of this court, (1), that because deceased was approaching defendant only at a walk, he was, therefore, not contemplating assault, (2), that deceased possessed no weapon, (3), that the conduct of deceased was not calculated to put defendant in fear of her life, and (4), that defendant’s use of a deadly weapon was under the circumstances a use of excessive force, all seem to me to be decisions of what are properly jury questions. This is to be expected if the theory of this dissent is right. It is only natural that a process of reasoning sustaining a judicial invasion of the province of the jury would involve other error of the same character. I regret that our court has found it necessary to depart from a rule which has heretofore been so uniformly followed throughout the land and which seems to me to be so clearly dictated by our Delaware constitution. A knife was in fact found by the body and introduced in evidence. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9755903. Public record. Not legal advice.