
    *Thompson v. The Commonwealth.
    November Term, 1870,
    Richmond.
    Joynes, J., absent, sick.
    i. Indictments — Counts—Conclusion of. — Every count in an indictment must conclude “against the peace and dignity of the Commonwealth;” or the count which omits it is fatally defective.
    3. Same — Proper Endorsement. — The only proper endorsement on an indictment is “a true bill,” or “not a true bill,” with the name of the foreman; and anything else is not a part of the finding of the grand jury.
    3. Same — Finding of Grand Jury— Surplusage. — The record of the finding of the grand jnry, saying, in commission of rape, which was on the indictment, is mere surplusage.
    
      4. Confessions — When Admssible as Evidence — Must Be Voluntary. — That a confession of a prisoner tried for murder is voluntary, is a condition precedent of its admissibility; and the court must be satisfied that the confession was voluntary, before it can be permitted to go to the jury; the burden of proof that it was voluntary is on the Commonwealth.
    S. Same — Rule as to Repeated Confessions. — Though a confession may be inadmissible because not voluntary, it may become admissible by being subsequently repeated by the accused when his mind is perfectly free from the undue influence which induced the original confession. Prima facie, the undue influence will be considered as continuing; though the presumption may be repelled by evidence; which, however, must be strong and clear.
    At the quarterly term of the County court of Goochland county, Willis Thompson, a colored boy, was indicted for the murder of Alice Brown, a colored gurí. The indictment contains two counts. In the first count the prisoner is charged with having made an assault on Alice Brown, and felo-niously to have ravished her, and that then and there, in the commission of the rape aforesaid, murdered her by choking her and thrusting *dirt, &c., into her nose, mouth and throat. But the count omits the conclusion “against the peace and dignity of the Commonwealth.”
    The second count charges the murder by the same means, except that it does not charge that it was done in the commission of a rape. This count concludes against the peace and dignity of the Commonwealth. The endorsement on the indictment is, An indictment against Willis Thompson, for murder in commission of rape. True bill. James W. Goodman, foreman of the grand jury.
    When the prisoner was arraigned he elected to be tried in the Circuit court; and when the cause was called in that court, he demurred to the indictment and each count thereof; but the demurrer was overruled: and he then pleaded not guilty. On the trial the jury found a general verdict of guilty of murder in the first degree, and the court sentenced the prisoner to be hung.
    In the progress of the trial, the prisoner, by his counsel, took exceptions to the rulings of the court, on the admissibility of his confessions; and after the verdict he moved in arrest of judgment, which motion the court overruled, and the prisoner excepted.
    ■ From the first exception, it appears that the attorney for the Commonwealth introduced a witness, by whom he proposed to prove certain confessions of the prisoner. Whereupon, the prisoner, by his counsel, objected to the introduction of the said confession as evidence in the cause, unless it was shown, affirmatively by the prosecution, to the satisfaction of the court, that said confession had been made freely and voluntary, and without any improper inducements, either of promises or threats, or other improper means. But the court overruled the objection, and decided to admit said confessions to go to the jury, unless the prisoner could show, by proper testimony, that the said confessions *had been obtained from him contrary to the rules of law in such case made and provided; being of opinion that when confessions are offered in evidence the law presumes they are voluntary and free from exception; and that if the prisoner desires to exclude them, the onus is upon him to show that they have been obtained from him by improper inducements, and not upon the Commonwealth to show affirmatively that they Were free and voluntary. To which opinion of the court the prisoner excepted. But before the confession was admitted, evidence was introduced which satisfied the court that the first confession made was made under a fear of being hanged by the mob of excited negroes who surrounded him; and that confession was excluded.
    After the first confession was excluded, the attorney for the Commonwealth proposed to give in evidence a confession made at a subsequent time; to which the prisoner, by his counsel, objected, unless the Commonwealth first showed clearly that the influence exerted on the mind of the prisoner, by the previous threats and the circumstances surrounding the prisoner, had been removed; that the presumption of law was, that those influences continued to exist on the mind of the prisoner, and induced all subsequent confessions.
    The facts as to this second confession having been proved, the prisoner, by his counsel, moved the court to exclude this confession, on the ground that, to say the least, it was doubtful whether the influences brought to bear on the mind of the prisoner, by the threats made against him when the first confession was made, and the circumstances which surrounded him, had been removed; but the court overruled the objection and permitted the confession to go to the jury. As this court did not express any opinion upon the sufficiency of the evidence to authorize the admission of the confession, it is unnecessary to state it.
    *The motion to arrest the judgment was on the grounds—
    1st. That it was uncertain whether the verdict was a general one, applying to both counts, or only on one; and if on one only, which?
    2d. If the verdict was on the first count, it should be arrested because the demurrer to that count should have been sustained, for the want of the constitutional conclusion.
    3d. If the verdict was on the second count it was a nullity, because the endorsement on the indictment shows that the grand jury only acted'on the first count.
    4th. If there was no finding of the grand jury on the second count, it should have been stricken out on the demurrer to it.
    5th. That the evidence required to convict the prisoner, on the first count, of murder in the first degree, is different from the evidence which was required to convict him of that crime on the second count. The proof of an attempt to commit a rape, the homicide being proved, would have been sufficient on the first count; on the second, willful and premeditated killing would have been necessary.
    Upon the application of the prisoner, a writ of error was allowed him to this court.
    Tutwiler, for the prisoner,
    insisted—
    1st. It was error to overrule the demurrer to the first count in the indictment. That count omitted the constitutional conclusion ‘ ‘against the peace and dignity of the Commonwealth.” jEJach count of an indictment must be perfect in itself; and the omission of the conclusion against the peace and dignity of the Commonwealth is fatal. Carney’s case, 4 Gratt. 546.
    2d. The demurrer should have been sustained to the first count, because it charges both rape and murder.
    3d. The court below erred in requiring the prisoner *to prove to. the satisfaction of the court that the confession proposed to be given in evidence against him, had been obtained from him by undue influence, before it would exclude them. Confession must be shewn by the Commonwealth, affirmatively, to have been free and voluntary, before they can be introduced. In the case of Regina v. Waverton, 2 Bed. Crim. Cas. 157, it is said, “in order to render a confession by a prisoner admissible, the prosecution must shew, affirmatively, to the satisfaction of the judge, that it has not been made under the influence of any improper inducement; if it appear doubtful on the evidence, the confession ought to be rejected.
    4th. The prisoner having proved, to the satisfaction of the judge, that the first confession had been obtained by threats, so that it was excluded, the court erred in admitting the same confession made at a subsequent time, without requiring the clearest proof that the influences which had induced the first confession, which had been excluded, had been removed from the mind of the prisoner; the presumption of law being that those influences continued. 1 Archb. Cr. Pr. & PI. 417, 418; 2 Russ. Crimes, Confessions; Smith’s case, 10 Gratt. 734. ’
    5th. The verdict of the jury was general.
    If it was on the first count, it was a nullity, because that count was defective for the reasons before stated; if it was on the second count, it was equally a nullity, because the endorsement on the indictment shews that on this count there was no finding by the grand jury.
    Phleger, for the Commonwealth,
    insisted—
    1st. The two counts charge exactly the same facts, and the same offence ; and there could be no proof or punishment under one count which could not be under the other. The description as to the rape is a statement of the surrounding circumstances not essential *to the charge of murder'. 2 Russ. Crimes 793. This distinguishes this case from Carney’s case, 4 Gratt. 546. The constitution says every indictment shall conclude against the peace and dignity of the Commonwealth; but it does not say that each count shall so conclude; and, in a case like this, the one conclusion will apply to every count in the indictment.
    2d. The first count does not charge the offence of rape as a distinct offence, but as the attendant upon the crime of murder; which it is the intention of the count to charge. Tiernan’s case, 4 Gratt. 545; Ratcliff’s case, 5 Id. 657.
    3d. The finding of the grand jury applied to both counts. The only proper endorsement upon an indictment is “a true bill,” or “not a true bill;” and any addition is surplusage. Cohen’s case, 2 Va. Cas. 158.
    4th. As to the confessions, he referred to 2 Russ. Crimes 858, Griffith’s case.
    
      
       Indictments — Counts—Conclusion of. — The proposition, that every count must conclude “against the peace and dignity of the commonwealth,” and every count which omits it is fatally defective, has met with approval in Early v. Com., 86 Va. 924, 11 S. E. Rep. 795; State v. McClung, 35 W. Va. 285, 13 S. E. Rep. 655.
      See also, in accord, Carney’s Case, 4 Gratt. 546. But see Lemons’ Case, 4 W. Va. 757, which is cited in 10 Fmc. Pl. & Pr. 443, as contrary to all authority.
    
    
      
       Same — Finding of the Grand Jury — Surplusage.—See the principal case cited in State v. Fitzpatrick, 8 W. Va. 709.
      Same — Murder—Form.—In Kitoler v. Com., 94 Va. 809, 26 S. E. Rep. 858, the court said: “In the case of Thompson v. Com., 20 Gratt. 730, the court says: *tt is not necessary, in consequence of the statute defining the different degrees of murder, and subjecting them to different punishments, to alter the form of indictments for murder in any respect, nor to charge specially such facts as would show the offence to be in the first degree.’
      “If, therefore, any proposition of law can be considered as settled by decision and no longer open to debate, this is one of them.”
      See also, in accord, Miller v. Com., 1 Va. Cas. 310; Wicks v. Com., 2 Va. Gas. 387; Livingston v. Com., 14 Gratt. 596.
      See generally, monographic mofe on “Indictments.”
    
    
      
       Confessions — When Admissible as Evidence — Must Be Voluntary. — In Smith v. Com., 10 Gratt. 734, it was declared as the condition of the admissibility of a confession, thatit be-free and1 voluntary; and the court said, at p. 739, that the established rule is, that a confession may be given in evidence unless it appear 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 of his escape from the consequences of the offence or the 'mitigation of the punishment, by a person in authority or with the apparent sanction of such a person. This rule was reaffirmed by the principal case-at'p. 730, and followed by subsequent cases, citing the principal case, and Smith v. Com., 10 Gratt. 734, as establishing the rule. See wolf v. Com., 30 Gratt. 838; Early v. Com., 86 Va. 928,11S. E. Rep. 795; State v. Morgan, 35 W. Va. 267, 13 S. E. Rep. 386. - . '
      Same — Same—Same—Exception.—In Fredrick v. State, 3 W. Va. 697, the court said: “It is well settled as a general rule, that the confession of the accused, made under inducements to officers in whose custody he was at the time, or others having authority over him, are to be excluded on the trial. But the exception to the rule is also fully established, where the confession is accompanied with the surrender and restoration of the stolen property.”
      Same — Same—Same—Persons in Authority. — But it should be noted well that to exclude confessions, as not voluntary, the inducements must be held out by some one in authority.
      
      The principal case was cited as authority on this point in Early v. Com., 86 Va. 928, 11 S. E. Rep. 795; State v. Morgan, 35 W. Va. 267, 13 S. E. Rep. 387. See also, a collection of cases in foot-note to Mitchell v. Com., 33 Gratt. 845; Vaughan v. Com., 17 Gratt. 576.
      Persons in authority, within the meaning of the rule, are such as are engaged or concerned in the apprehension, prosecution, or examination of the accused. Smith v. Com., 10 Gratt. 734; Thompson’s Case, 20 Gratt. 724; Early’s Case, 86 Va. 928, 11 S. E. Rep. 795.
      Therefore one who is merely a private detective, employed to “work up the case” is not such a person. Early v. Com., 86 Va. 928, 11 S. E. Rep. 795; United States v. Stone, 8 Fed. Rep. 232.
      Same — Same—Same—Burden of Proof. — The proposition, advanced by the principal case, that the burden of proving that the confession is voluntary, is upon the state, was approved in Morgan’s Case, 35 W. Va. 265, 13 S. E. Rep. 386.
    
    
      
      Same — Rule as to Repeated Confessions. — As authorIty for tbe proposition, that, In tbe absence of clear proof to tbe contrary, a second confession will be presumed to have been influenced by the same motive which prompted the first confession and made it inadmissible, tbe principal case was cited and approved in Venable v. Com., 24 Gratt. 640.
      See generally, monographic note on “Confessions” appended to Schwartz v. Com., 27 Gratt. 1025.
    
   MONCURR, P.,

delivered the opinion of the court.

The court is of the opinion, that as the constitution, article VI, sec. 26, requires that indictments shall conclude, “against the peace and dignity of the Commonwealth, ’ ’ and ■ as the first count of the indictment in this case does not so conclude, though the second count does, the first count is therefore fatally defective in that respect, and the demurrer thereto ought to have been sustained instead of overruled; according to the authority of Carney’s case, 4 Gratt. 546.

The court is further of opinion, that although the grand jury might lawfully have found the first count of- the indictment “a true bill,” and the second count “not a true bill;” yet, they did not in fact do so, but fourid the whole indictment^ including both counts, “a true bill.” The endorsement, “an indictment ag'ainst Willis Thompson, murder in commission of rape,” which appears to have been on the indictment *when found by the grand jury and when presented by them in court, was not a part of their finding, which consisted only of the words, 11 true bill, ’ ’ endorsed on the indictment and signed by their foreman. And, although the same words of description, endorsed on the indictment as aforesaid, are used in the record of the finding thereof; yet, it is a sufficient record of the finding of the whole indictment; the words, “in commission of rape,” included in that description, being mere surplusage.

The court is further of opinion, that it is not necessary, in consequence of the statute defining the different degrees of murder, and subjecting them to different punishments, to alter the form of indictments for murder in any respect, nor to charge specially such facts as would shew the offence to be murder in the first degree. 3 Robinson’s Practice, old edition, p. 43; Commonwealth v. Miller, 1 Va. Cas. 310; Wicks v. Commonwealth, 2 Id. 387. Therefore, the first count of the indictment in this case, which charges specially a rape, in the commission of which the murder, which is the object of the prosecution, is charged to have been committed, is wholly unnecessary, although not on that ground demur-rable; and the second count, which is in the common form, will answer every purpose which could have been answered by the first count as an indictment for murder, even if the latter had been otherwise unexceptionable.

The court is further of opinion, that in a criminal case a confession of the accused is admissible evidence against him, only when- it is voluntary; that is, when made wihout being induced by motives of hope or fear of temporal advantage or injury, excited by a person in authority, or with the apparent sanction of such a person. Smith’s case, 10 Gratt. 734. Persons in authority, within the meaning of the rule, being such as are engaged or concerned in the apprehension, prosecution *or examination of the accused. Id. 742, ’3. That the. confession is voluntary, being therefore a condition precedent of its admissibility, and the duty of deciding on its admissibility being a duty which devolves on the court, it follows, necessarily, that the court must be satisfied that the confession was voluntary, before it can be permitted to go before the jury; in other words, that the burden of proof that it was voluntary, devolves on the Commonwealth.

The court is further of opinion, that though a confession may be inadmissible because not voluntary, it may become admissible by being subsequently repeated by the accused, when his mind is perfectly free from the undue influence which induced the original confession. Prima facie, the undue influence will be considered as continuing; though the presumption may be repelled by evidence, which, however, must be strong and clear. The rule on this subject has been well stated to be, “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 consequences of confession, or from other circumstances, that the delusive hopes or fears, under the influence of which the original confession was obtained, were entirely dispelled. In the absence of any such circumstances, the influence of the motives proved to have been offered, will be presumed to continue, and to have produced the confession, unless the contrary is shown by clear evidence, and the confession will therefore be rejected.” 2 Russ, on Crimes 838; Greenl. Ev. 257; and cases cited. It follows that the burden of showing the contrary devolves on the Commonwealth, as the condition on which the confession will be admissible.

The court is further of opinion, that the original confession, which was offered in evidence in this case, *was clearly inadmissible; having been made under the influence of fear, produced by the presence and the threats of a large number of negroes, some of whom were armed, who attended the person who made the arrest, and threatened to hang the accused, and the Circuit court was therefore right in excluding it.

But the court declines at this time to express any opinion as to the admissibility of the subsequent confessions which were given in evidence; deeming it sufficient to state the principles of law which govern the subject, and leaving it to the Circuit court to appljr them, according to a sound discretion, in view of all the facts, as they may be developed in the future trial of the case.

Therefore, it is considered that the said judgment, for the reason aforesaid, is erroneous, and that it be reversed and annulled ; that the demurrer to the first count of the indictment be sustained; that the verdict of the jury be set aside; and that the cause be remanded to the said Circuit court, for a new trial to be had therein on the second count of the indictment; on which new trial the said court is to be governed by the principles herein declared, as far as they may be applicable. Which is ordered to be certified to the said Circuit court.

Judgment reversed.  