State v. Miller, 61 Wash. 125, 111 Pac. 1053 (1910).


      [No. 8880. Department Two. December 8, 1910.]
THE STATE OF WASHINGTON, Respondent, v. PETER MILLER,
                     Appellant. 1

CRIMINAL LAW - EVIDENCE - CONFESSIONS - ADMISSIBILITY - DURESS.
A confession is inadmissible as one obtained by duress, where it
appears that the prosecuting attorney threatened the accused with
a series of prosecutions which would culminate in cumulative
sentences, unless he confessed, he was subjected to solitary
confinement in a dark cell, and testified that he was subjected
to severe cruelties and threatened with appalling punishments if
he did not confess; and it appears that the jailors threatened
many other prisoners if they did not confess, and confined them
in the dark cell for refusal to do so.

CRIMINAL LAW - TRIAL - MISCONDUCT OF JURY - VIEW. There is
such misconduct on the part of the jury as to require a reversal
of a conviction, where it appears that the jury, on being sent to
view a cell that had been occupied by the accused, inspected, on
invitation, the office of a police captain who was an important
factor in the prosecution, and it was alleged that such officer
had assaulted the accused, and the captain conversed with the
jurors on the subject of the assault, calling attention to the
fact that the window gave full view from the street, and the jury
was drawn into a social conversation with him.

Appeal from a judgment of the superior court for King
county, Gilliam, J., entered November 27, 1909, upon a
conviction of burglary in the second degree, after a trial upon
an information charging burglary in the first degree.
Reversed.


1 Reported in 111 Pac. 1053.

 126    STATE v. MILLER.
                Opinion Per DUNBAR, J.           61 Wash.

Joseph M. Glasgow, for appellant.

George F. Vanderveer and Everett C. Ellis, for respondent.

DUNBAR

DUNBAR, J. - The prosecuting attorney of King county
filed in the superior court of the state of Washington for
said county an information, charging the defendant and one
Willis Taylor, an accomplice, with the crime of burglary in
the first degree. The defendant was arrested on the 22d day
of June, 1909, and this information was not presented until
the 10th day of August, 1909. In the meantime he was
confined in the jail in the city of Seattle. A plea of not guilty
was entered, the case was brought on for trial on the 29th
day of October following, and on the 2d day of November the
jury returned a verdict of guilty of burglary in the second
degree. Throughout the trial of this case, the defendant
conducted his own defense and appeared as his own counsel.
Application for a new trial and motion in arrest of judgment
were made and denied, judgment was announced, and appeal
followed.

This conviction was obtained largely upon the alleged
confessions of appellant and his accomplice, Taylor. At least,
the confessions sworn to by the witnesses were an element in
the case, and we must assume that such testimony may have
been controlling in the minds of the jurors. The admission
of this testimony is one of the errors assigned, it being the
contention of the appellant, who appears here by counsel,
that the testimony shows that these confessions were obtained
by duress, and were not the character of confession which is
specified in the law as the basis of conviction. We think this
contention must be sustained. The trial was a long one and
evidently exceedingly trying and vexatious to the trial court,
who exhibited great patience and liberality towards the
appellant throughout the trial. The record conclusively shows
that the appellant possessed some little smattering of legal
knowledge, and was exceedingly egotistical and vain over its
acquirement: but this does not affect the main question of

                    STATE v. MILLER.                     127
 Dec. 1910          Opinion Per DUNBAR, J.

whether the confessions were obtained by cruel treatment,
threats, and persuasion.

According to the testimony of the appellant, the prosecuting
attorney had threatened him with prosecution for divers
and sundry crimes which work cumulative sentences, in
addition to other harsh treatment which it was claimed the
appellant received at the hands of the prosecuting attorney.
It was conceded by the prosecuting attorney that he had
visited this appellant more than once ak his cell, and once in
company with the captain of the detectives, and with the
prosecuting attorney of Spokane county. All the charges
of cruelty were indignantly denied by the prosecuting
attorney, but in answer to a question propounded by the appellant,
if he had had such a talk with him, he did say this: "Under
the laws of this state you could be charged with all these
burglaries and your sentence would be tacked one on the
other. I did tell him that. I suppose that was a sort of an
implied threat. Otherwise I never said a word in any
threatening manner." The prosecuting attorney was there for a
purpose. The evident purpose was to obtain a confession from
this appellant, and we think, under his own admission, that
the threat which he made, or the implied threat as he terms
it, was sufficient to render the confession made a confession
obtained by duress. The appellant was confessedly a bright
man and would understand, and it was no doubt intended that
he should understand, that these cumulative sentences would
follow if he did not confess. This is all that need be said so
far as the testimony of the prosecuting attorney is concerned.

The appellant also testified that he was thrown into what
he calls the "dark hole" in the jail; that he was maltreated,
beaten with a bludgeon by the captain of the detective force,
Tennant, and threatened with the most appalling punishments
if he did not confess what he knew about this alleged burglary.
The details of this alleged punishment and threats are too
horrible and disgusting to set forth here. The only question is
as to the truth of the statements made. These allegations of

 128    STATE v. MILLER.
                Opinion Per DUNBAR, J.           61 Wash.

threats and of barbarous treatment were denied by Captain
Tennant, he claiming that he never hart struck or abused the
appellant, excepting once when the appellant attempted to
assault him. Captain Tennant denied that he had ever put
the appellant into the black hole or black cell; but it is
conceded that appellant was confined in the black cell, and that
he was there with the knowledge of Captain Tennant. While
Tennant probably did not put him there, as naturally he
would not, appellant was evidently ordered there by him, or if
not by him, by some one in authority at the jail. It is not
alleged or claimed anywhere that it was necessary to put
appellant in this iron cell for the purpose of preventing an
escape. The whole testimony shows conclusively that it was
done for the purpose of extracting a confession from him.
The same may be said of the treatment accorded the boy Willis
Taylor.

The effect of solitary confinement on the mind of a person
charged with crime may be imagined. It is a well-known
psychological fact that men and women have frequently
confessed to crimes which they did not commit. They have done
it sometimes to escape present punishment which had become
torture to them; sometimes through other motives; and the
object of putting the inmates of this jail in this dark cell in
solitary confinement is easily understood. To show the
custom prevailing at that jail, many witnesses were introduced
to testify as to the treatment that they had received while
inmates of the jail. They all testified that there had been
threats made to make them confess to the crimes with which
they were charged, and that upon their refusal to do so, they
had been put in this black hole. There was no denial by the
officers of the jail that this had been done; nor did they
always deny that it was done for the purpose of eliciting a
confession. As showing by the testimony of the officers of
the jail themselves the use to which the solitary cell was put,
the jailor, Corbett, testified that it was common while the
police department and the detectives were investigating a

                STATE v. MILLER.                     129
 Dec. 1910          Opinion Per DUNBAR, J.

case, sometimes taking them twenty-four hours, to put the
person suspected into this dark cell. In answer to the
question: "What did that man do that you put him in there? he
said:

"Mr. Holland had him arrested for selling a valise, and he
lied so much, he said 'This man ought to be punished; he is
the biggest liar I ever heard of,' so I just let him into the
black hole, or the dark cell. Q. You admit then before this
jury that you put him in the hole because he would not talk
to suit the officer's purpose - you admit that before the jury?
A. I admit that is what I put him in there for."

So that it seems that these officers, according to their own
statement, not only put suspects in the black hole because
they would not talk to suit the officers' purpose, or would
not make confessions in regard to their own crimes, or in
regard to crimes of somebody else, which they were presumed
to know about; but that they had passed judicially upon
their character and upon the crimes with which such persons
were charged, and had them in there to punish them. The
record is so full of this kind of testimony and so plainly
indicates the fact that the sacred rights of citizenship had been
invaded by the officers of the jail, the police and detective
department, that it is scarcely necessary to cite further
instances.

Neither policeman, detectives, nor jailors are clothed in
this country with inquisitorial powers. It is true that some
of the laws of Spain have been engrafted on ours; but not
the dungeon, the bludgeon, the burning faggot, or any of
the concomitant tortures of the Inquisition. These belong
to the ages of bigotry, intolerance, and superstition, and have
no place in our civilization. An attempt to revive them, even
in a mild form, ought to call forth the execration of the people,
and the severest condemnation of the law. In the necessarily
slow process of evolution of sentiment, it has required
centuries to establish the liberty of the subject at its present
standard. The strangling hold of superstition, tyranny, and

 130    STATE v. MILLER.
                Opinion Per DUNBAR, J.           61 Wash.

oppression relaxed reluctantly, and after it has been once
dethroned, an attempt to establish its dominion is an assault
on liberty as unpatriotic as it is inhuman. It matters not
that the victim may be guilty of the crime of which he is
suspected, or for which he is arrested. These self-constituted
judges might possibly be mistaken, for innocent men are
frequently suspected and frequently arrested. In addition,
the law throws its protecting aegis around the innocent and
the guilty alike, on the assumption that every man is innocent
until he is proven guilty, and demands that his guilt be
clearly established before punishment is inflicted. This
beneficent rule has been reversed by the practices shown by the
record, and the presumption of guilt attaches with the
suspicion. Showing the views of the court on these and similar
practices, reference is made to State v. McCullum,
18 Wash. 394, 51 Pac. 1044, and State v. Montgomery,
56 Wash. 443, 105 Pac. 1035.

The misconduct of the jury is also alleged as error, and
we think this contention must be sustained. It was the
sworn contention of the appellant that, when he was taken to
the office of the captain of detectives, Mr. Tennant, he was
assaulted by the captain with a bludgeon, knocked down, and
kicked into insensibility, and that, when he came to, he felt a
sensation of something rough on his face, and discovered that
his face was being licked by a bulldog. This was indignantly
denied by Captain Tennant. At the close of the testimony
in the case, the jury were sent out to view the cell in which
the appellant had been confined, with the ordinary instructions
to examine the cell and to have no communication with others
on the subject of the trial. The examination was made, and
what occurred while they were there is set forth in the evidence
of two of the jurors, Morris Sobrato and C. W. White.
Sobrato states in his affidavit that, after the jury

"Had descended by the elevator to the first floor, one of
the men connected with the police department suggested that
we [the jury] come into Captain Tennant's office; that we

                    STATE v. MILLER.                     131
 Dee. 1910          Opinion Per DUNBAR, J.

were then conducted to the office of Captain Tennant, chief of
detectives, and into the presence of Captain Tennant; that
while there, one of the jurors picked up a pen or pencil lying
on Captain Tennant's desk and made the remark, addressed
to all of us, that this was the club or instrument with which
the defendant Peter Miller had been beaten; Captain Tennant
then said, in substance, that they had no other instrument of
torture. Some of the members of the jury were standing
right by the window, and Captain Tennant called our
attention to the fact that the window was next to the street, and
that everything going on inside could be distinctly seem from
the street. Just before we left, Captain Tom, ant showed us a
picture on the wall of Seattle's first chief of police."

The affidavit of White was substantially the same, with the
addition that they were informed that Captain Tennant had
invited the jurors to inspect his office, and that they went in
there with the result specified in the other affidavit. He also
swears, in addition, that he heard one of the jurors say: "I
suppose that is the bulldog that licked Miller's face," and
Tennant laughed and said, "That is the dog." He also heard
Tennant say: "This office is right on the street, and any
one can look from the sidewalk right into it." There can be
no reasonable contention that this was not misconduct on the
part of the jury, and such misconduct as ought to reverse
the judgment in this case. The jury not only were drawn
into a social communication with Captain Tennant, who was
a very important factor in the prosecution of the appellant -
which in itself was unfair to the appellant, but they received
testimony there in relation to the club or bludgeon, and it
was specially pointed out to them that the window was so low
that anybody would see what was going on in the office, this
evidently with the intention of impressing upon the jurors'
minds that the violent scenes which were testified to by the
appellant could not have occurred without being noticed by
others from the outside. It is not necessary to establish the
fact that this was prejudicial error. We think there are no
cases which would hold to the contrary.

 132    BELTINCK v. TACOMA THEATER CO.
                Opinion Per CROW, J.               61 Wash.

With the view we take of these two assignments discussed,
it is not necessary to discuss the other assignments suggested.
The judgment will be reversed.

RUDKIN, C. J., CROW, CHADWICK, and MORRIS, JJ., concur.