CHARLESTON.

#### State *v.*Howard Mayle

(No. 6152)

Submitted March 11, 1930.

Decided March 18, 1930.

*W. Bruce Talbott*and *F. Wayne Talbott,*for plaintiff in error.

*Howard B. Lee,*Attorney General, and *W. Elliott Nefflen,*Assistant Attorney General, for the State.

"Woods, Judge:

Howard Mayle, Palace Parsons and Ted Dalton were jointly indicted in the circuit court of Taylor county on the charge of breaking' and entering a certain chicken house and stealing therefrom twenty-one chickens. Mayle, defendant herein, who was tried separately, convicted and sentenced to confinement in the penitentiary, brings error.

*682According to tbe State’s theory, wbicb is amply supported by her witnesses and a written confession, it appears that the defendant and his companions, having a market in view, set about to secure a number of chickens. After visiting a nearby dwelling, the occupants of which were temporarily absent, and procuring several sacks, the trio proceeded to a chicken house on a neighboring farm, tore out a screen and removed a.nd cut off the heads of twenty-one chickens — seven being-placed in each of two sacks and six in a third. The chicken* were taken to the dwelling heretofore mentioned and dressed for market. Early-the following morning the boys started to Grafton. After passing tire property on which the chicken house, from which the chickens had been taken, was located, they hid their produce along the river bank, and went into town to see if their prospective customer still wanted it. Parsons then took a taxi back for the chickens; he was stopped by officers, who had been called to the scene on the discovery of the theft, and asked where he was going. He then took them to the point where the chickens were concealed. Soon thereafter defendant and Dalton were arrested in Grafton. Sometime during the afternoon the defendant, confessed to the theft, and later the confession was written out on a typewriter, sworn to and signed by the defendant. On the trial, however, defendant offered evidence to the effect that he had killed four of his own chickens and had gone over to spend the night with Parsons, who killed sixteen of his; and that, on the following morning, the three had left for Grafton, to sell the same.

The chief assignment of error goes to the introduction of' the written confession, which corroborates the State’s evidence in every particular. Whether it was properly admitted becomes the crux of the case.

The general rule is that a confession cannot be given in evidence if it appears that .it was obtained from the party by some inducement of a worldly or temporal character in the nature of a threat or promise of benefit, held out to him in respect to his escape from the consequences! of the offense, or the mitigation of the punishment, by a person in authority, or with the apparent sanction of such a person. *State*v. *683
      *Zaccario,*100 W. Va. 36, 129 S. E. 763. It devolves upon tbe trial court in tbe first instance, before admitting it, to determine wbetber sucb confession bas been voluntarily made and tbe burden is on tbe state to show to tbe satisfaction of tbe court facts justifying tbe admission of sucb confession; and upon its admission tbe jury are tben tbe final judges of tbe weight and effect tbat should be given sucb confession in connection with all other evidence in tbe case as to tbe guilt or innocence of tbe defendant. *State*v. *Richards,*101 W. Va. 136, 132 S. E. 375, 377. As tbe court said in that case: “For in tbe end tbe question of tbe weight and sufficiency of tbe evidence to sustain tbe truth and verity of tbe alleged confession passes to tbe jury, who become thereby tbe final triers of tbe facts and of tbe weight they will attach to sucb confessions.” It is true tbat the prisoner has stated tbat be would not have made this confession if be bad not been induced to do so by threats and acts of violence on the part of tbe officers. Tbe officers all unite in denying tbe use of any threats or violence. Both court and jury have determined this fact contrary to tbe prisoner’s contention. Tbe fact tbat sucb confession was made to one in authority, does' not of itself, make tbe confession inadmissible, although this fact may be considered in determining wbetber or not it was voluntarily made. While denying tbat any force was used by tbe officers, or tbat they had held out any inducement to tbe prisoner, one of tbe members of tbe State Department of Public Safety says tbat be did state to tbe defendant that “it was best to tell tbe truth”. Did this render tbe confession inadmissible? There are authorities which in a measure so bold because of tbe presumption tbat, under all tbe circumstances of tbe particular case, tbe party in making them was influenced by tbe admonition made. However, there is a great line of cases bolding to tbe contrary. Tbe latter proceed on tbe theory tbat where tbe prisoner is advised to tell tbe truth, it cannot be supposed tbat be would be induced thereby to confess to a crime of which be is really innocent. Tbe real question being wbetber there bas been any threat or promise of sucb nature tbat tbe prisoner would likely tell an untruth for fear of tbe threat, or hope of profit from the promise. *State*
      *684v. *Goldizen,*93 W. Va. 328, 336, 116 S. E. 687. So, if wbat is said to the prisoner has no tendency to induce him to make an untrue statement, his confession is admissible. 3 Buss, on Cr. (5th Ed.) 442. But as we have shown, each case must be viewed in its own setting to determine the question. For this reason it. would serve no useful purpose to attempt to review or reconcile the cases, pro and con, if it were possible.

The words heretofore quoted were used in a conference had with the prisoner in the office of the sheriff, at which there were present the deputy sheriff, member of the state police, and the principal of the schools of Flemington. The principal wrote the prisoner’s statement down on a typewriter. All testify that the prisoner willingly made the statement. After it was typed, the prisoner went with the state policeman and the deputy sheriff to the office of the clerk of the circuit court to sign the statement and acknowledge •it. The clerk testifies that he read the statement to the defendant, and thereupon said to him, “I wonder why you want to do such a thing as this?” to which the prisoner replied: “It is the truth.” Whereupon the clerk, after assuring the prisoner that his statement could be used against him at the trial, added another clause to it to the effect that the confession in regard to the matters therein related was made upon his (prisoner’s) own free will and without offers of any kind from the state officials, and attested the paper. It is to be noted that the clause immediately preceding the attestation supplied by the clerk says: “This is my own free will confession knowing that it can be used against me in prosecution. ” A prominent member of the Taylor county bar, who happened to be in the office at the time, corroborates the testimony of the clerk in every particular. Both say that the prisoner appeared to be in a good humor and not at all nervous. This subsequent action on the defendant’s part has a significant bearing on the question of whether the confession was voluntary. For the rule has been well stated: ‘ ‘ That, although an original confession may have been obtained by improper means, yet subsequent confessions of the same or like facts may be admitted, if the court believes, from the length of time intervening, or from proper warning of the *685consequences of tbe confession, or from other circumstances, that the delusive hopes or fears, under the influence of which the original confession was obtained, were entirely dispelled. ’ ’ 2 Russel on Crimes, 838; Greenleaf Ev. 257; *Com.*v. *Thompson,*20 Gratt. 731, approved in *Venable*case, 24 Gratt. 639. See note to *Schwartz*case, 27 Gratt. 1025. To same effect *Moore*v. *Com.,*2 Leigh 701. No general proposition can be predicated concerning the weight and degree of credit to be given to a confession; because this must depend upon the age, character and mental capacity of the prisoner, and the share of education which he has enjoyed, and all the surrounding circumstances which attended it. 1 Greenl. Ev., sec. 215.

We realize that the prisoner here was a youth of seventeen or eighteen years, and that he was without counsel or advice. For this reason the court has given to the evidence surrounding the confession painstaking consideration. But on the question of its admissibility it comes here on a decision adverse to the prisoner. The trial court has a wide discretion as to the admission of confessions. Ordinarily this discretion will not be disturbed on review. And, in any event, it will not be disturbed unless we can say that the trial court was plainly wrong. We cannot say so.

The foregoing conclusion necessarily upholds the verdict unless there were errors of procedure reversible in their nature committed by the court. The indictment is assailed as insufficient. It contains three counts. The first is the usual count for burglary. Its form and substance have been approved many times by this Court as sufficient. One count being good and the motion to quash, as well as the verdict, being general, it becomes unnecessary to examine the other two counts. *Moody*v. *State,*1 W. Va. 337; *Kirk*v. *Com.,*9 Leigh (Va.) 627.

Another assignment of error goes to the admission of the testimony of the state witnesses regarding the finding of the dressed chickens along the river bank, at the instance of the co-defendant Parsons. Of course this was in the absence of the defendant Mayle. This testimony only served to connect the state’s narrative of the case and did not fall within the *686ban of tbe rule tbat confessions and declarations of a- co-defendant, after tbe commission of tbe crime, and not in tbe' presence of tbe accused, are inadmissible in evidence, unless a part of the *res gestae. State*v. *McCoy,*61 *W.*Va. 258, 57 S. E. 294. No confession or declaration of Parsons went to tbe jury implicating tbe defendant Mayle in tbe robbery.

Tbe remaining’ assignments of errors relate to tbe instructions. Tbe jury were fully instructed in every phase of tbe law of tbe case by fourteen instructions given at tbe instance of tbe defendant. Tbe four refused were practically incorporated in those given, and tbe defendant suffered no prejudice by their rejection. The state requested sixteen instructions, all of which were read to tbe jury. Our only criticism of them goes alone to their numerosity. They are not open to tbe objection tbat they mis-state tbe law. Tbe prisoner was ably defended, a fair trial accorded him, and we see no reason for disturbing the verdict.

*Affirmed.*