Sanders v. State

Mississippi Supreme Court
Sanders v. State, 115 So. 2d 145 (Miss. 1959)
237 Miss. 772; 1959 Miss. LEXIS 530
Ethridge, McGehee, Kyle, Arrington, Gillespie

Sanders v. State

Opinion

Ethridge, J.

Appellant, Willie Sanders, was convicted in the Circuit Court of Warren County of manslaughter, for the killing of Jimmie Lee Carter, and was sentenced to serve ten years in the penitentiary. There were several witnesses for the State who saw Sanders shoot him, and *775 the conviction was amply supported by the evidence. The principal defense was insanity, which was submitted to the jury. However, we have concluded that the case must be reversed and remanded,, because of an erroneous denial by the trial court of defendant’s motion that the State produce a tape recording of defendant’s confession.

Sheriff P. T. Hullum testified as a witness for the State. In the absence of the jury, on preliminary examination, Hullum' said he was present with the district attorney and county attorney at a “conference” they had with defendant either on the day of the killing or the following day. He stated on- that occasion Sanders confessed that he had shot and killed Carter. The sheriff made no written notes of the confession, but he said he remembered the details of it well, although he conceded that he could not remember every item. ' The county attorney made a transcription of this conference with defendant, at which he allegedly gave a confession, on a recording machine, apparently a tape recording. This transcription was made for the investigative purposes of the county attorney. Defendant’s counsel then moved the court to require the State to produce the recording of the defendant’s confession, in order that defendant might use it in cross-examination of the sheriff, and possibly as evidence. The circuit court overruled that motion. Thereafter the jury returned to the courtroom, and the sheriff testified concerning his recollection of defendant’s oral confession, given at the recorded interview.

There was no error in admitting into evidence the testimony of the sheriff with reference to defendant’s oral confession. The evidence showed it was free and voluntary. Oral testimony showing the circumstances of an extrajudicial confession, as well as a signed written confession, is admissible as primary evidence. Tyler v. State, 159 Miss. 223, 131 So. 417 (1930).

*776 On the other hand, a transcription or tape recording was made of the entire conference or interview with defendant during which he made his confession. When properly authenticated, a tape recording of an accused’s confession is admissible in evidence. Ray v. State, 213 Miss. 650, 654-657, 57 So. 2d 469 (1952). The State’s evidence as to the confession was offered through the testimony of the sheriff, who narrated it to the jury in accordance with his best recollection. However, the sheriff, although stating that he remembered the defendant’s confession, conceded that he could not remember verbatim every detail. The defense was entitled to inspect and to hear the recording, in order to decide whether to use it in his defense, on cross-examination and as direct evidence. The pertinent rule is stated in 2 Wharton’s Criminal Evidence (12th Ed., 1955) Sec. 361: "In the proof of confessions, the whole of what the accused said on the subject at the time of making the confession should be taken together. The prosecution is entitled to show the whole statement, or if any part is omitted, the accused is entitled to supply it. It is also well settled that if a confession is made under such circumstances as to authorize its admission in evidence, the accused is entitled to have the entire conversation, including any exculpatory or self-serving declarations connected therewith, also admitted. However, it is for the jury to say what weight shall he given to the several parts of the statement, as they may believe that part which charges the prisoner and reject that which tends to exculpate him.”

In other words, the accused is entitled to examine and put in evidence all that was said to and by him at the time which bears upon the subject of the controversy, including any exculpatory or self-serving declarations connected with it. 20 Am. Jur., Evidence, Sec. 488. Where the State introduces a part only, the accused is entitled to prove the remainder or any part *777 thereof which is explanatory of, or connected with, the part offered by the State. 22 C. J. S., Criminal Law, Sec. 820; Bishop v. State, 96 Miss. 846, 52 So. 21 (1910); Coon v. State, 13 Smedes and Marshall 246, 250 (Miss. 1849); McCann v. State, 13 Smedes and Marshall 471, 498-499 (Miss. 1850); Jones v. State, 222 Miss. 387, 395, 76 So. 2d 201 (1954). Hence it was error for the trial court to overrule appellant’s motion for production of the tape recording, and for that error the conviction must be reversed. Of course a recorded statement may contain considerable material which is not relevant or material on the issue of the confession or, as here, of insanity. The trial judge has ample power in his sound discretion to limit the introduction into evidence of those portions of the recording which are relevant and material.

Since this decision is based upon an established rule of evidence pertaining to confessions, it is not necessary for us to consider the pertinency of Miss. Code 1942, Sec. 1659, dealing with the production of documents, “objects, or tangible things.” See Jones v. State, supra; Eaton v. State, 163 Miss. 130, 140 So. 729 (1932); Seals v. State, 208 Miss. 236, 251, 44 So. 2d 67 (1950). And we are not concerned here with a motion for production of statements by witnesses for the State, which was involved in Bellew v. State, 106 So. 2d 146 (Miss. 1958).

Reversed and remanded.

McGehee, C. J., and Kyle, Arrington, and Gillespie, JJ., concur.

Reference

Full Case Name
Sanders v. State.
Cited By
29 cases
Status
Published
Syllabus
1. Criminal law — confessions — evidence — oral testimony showing circumstances of an extrajudicial confession admissible. Oral testimony showing the circumstances of an extrajudicial confession, as well as a signed written confession, is admissiblePage 773 as primary evidence; hence, admission into evidence of testimony of sheriff with reference to oral confession of defendant, who was accused of manslaughter, where evidence showed that confession was free and voluntary, was not error. 2. Criminal law — evidence — tape recording of accused's confession, properly authenticated, admissible. When properly authenticated, a tape recording of an accused's confession is admissible in evidence. 3. Criminal law — confessions — evidence — right to prove all of confession — proof of exculpatory statements. The accused is entitled to examine and put in evidence all that was said to and by him at the time which bears upon the subject of the controversy, including any exculpatory or self-serving declarations connected with it, and where the State introduces a part only of his confession, the accused is entitled to prove the remainder or any part thereof which is explanatory of, or connected with, the part offered by the State. 4. Criminal law — confessions — evidence — accused entitled to have State produce tape recording of conference whereat sheriff testified accused orally confessed. Where sheriff testified, in prosecution for manslaughter, that defendant had orally confessed in his presence and where a transcription or tape recording had been made of entire conference or interview with defendant during which alleged confession was made, defendant was entitled to have the tape recording in question produced, in order to enable defendant to prove the remainder or any part thereof which was explanatory of, or connected with, the testimony of the sheriff. Headnotes as approved by Ethridge, J.