Bram v. United States/Dissent Brewer

MR. JUSTICE BREWER, with whom concurred MR. CHIEF JUSTICE FULLER, and MR. JUSTICE BROWN, dissenting

I dissent from the opinion and judgment in this case—

First, because I think the testimony was not open to objection. "A confession, if freely and voluntarily made, is evidence of the most satisfactory character." Hopt v. Utah, 110 U.S. 574, 584; reaffirmed in Sparf v. United States, 156 U.S. 51, 55. The fact that the defendant was in custody and in irons does not destroy the competency of a confession. "Confinement or imprisonment is not in itself sufficient to justify the exclusion of a confession, if it appears to have been voluntary, and was not obtained by putting the prisoner in fear or by promises." Sparf v. United States, supra; see, also Wilson v. United States, 162 U.S. 613, 623.

The witness Power, when called, testified positively that no threats were made nor any inducements held out to Bram; and this general declaration he affirmed and reaffirmed in response to inquiries made by the court and the defendant's counsel. The court therefore properly overruled the objection at that time made to his testifying to the statements of defendant. It is not suggested that there was error in this ruling, and the fact that inducements were held out is deduced only from the testimony subsequently given by Power of the [p570] conversation between him and Bram. The first part of that conversation is as follows: "When Mr. Bram came into my office, I said to him: 'Bram, we are trying to unravel this horrible mystery.' I said: 'Your position is rather an awkward one. I have had Brown in this office, and he made a statement that he saw you do the murder.' He said: 'He could not have seen me. Where was he?' I said: 'He states he was at the wheel.' 'Well,' he said, 'he could not see me from there. In this there is nothing which by any possibility can be tortured into a suggestion of threat or a temptation of hope. Power simply stated the obvious fact that they wer trying to unravel a horrible mystery, and the further fact that Brown had charged the defendant with the crime, and the replies of Bram were given as freely and voluntarily as it is possible to conceive.

It is strange to hear it even intimated that Bram up to this time was impelled by fear or allured by hope caused in the slightest degree by these statements of Power.

The balance of the conversation is as follows: "I said: 'Now, look here, Bram, I am satisfied that you killed the captain from all I have heard from Mr. Brown. But,' I said, 'some of us here think you could not have done all that crime alone. If you had an accomplice, you should say so, and not have the blame of this horrible crime on your own shoulders.' He said: 'Well, I think, and many others on board the ship think, that Brown is the murderer; but I don't know anything about it.' He was rather short in his replies." And here, it is argued, was a suggestion of a benefit—the holding out of a hope that a full disclosure might somehow inure to his advantage. To support this contention involves a refinement of analysis which, while it may show marvelous metaphysical ability, is of little weight in practical affairs. But, even if it did carry any such improper suggestion, it was made at nearly the close of the conversation; and that this suggestion then made had a retroactive effect, and transformed the previous voluntary statements of Bram into statements made under the influence of fear or hope, is a psychological process which I am unable to comprehend. The only reply [p571] which Bram made to the question containing this supposed improper suggestion was this: "Well, I think, and many others on board the ship think, that Brown is the murderer; but I don't know anything about it." Can it for a moment be thought that such a reply was so significant that permitting it to go to the jury compels the putting at naught this protracted trial, and overthrowing the deliberate verdict of the 12 men who heard the evidence and condemned the defendant? With all respect to my brethren who are of a different opinion, I can but think that such a contention is wholly unsound, and that in all this conversation with Bram there was nothing of sufficient importance to justify the reversal of the judgment.

Again, there is a lack of any proper objection or exception; and, if there is any one thing which may be considered as settled in all appellate courts, it is that an error in the admission of testimony will not be considered unless there was a specific objection and exception at the trial. "To authorize any objection to the admission or exclusion of evidence, or to the giving or refusal of any instructions to the jury, to be heard in this court, the record must disclose not merely the fact that the objection was taken in the court below, but that the parties excepted at the time to the action of the court thereon." Hutchins v. King, 1 Wall. 53, 60; United States v. McMasters, 4 Wall. 680, 682. "Our power is confined to exceptions actually taken at the trial." Railway Company v. Heck, 102 U.S. 120. See also Moore v. Bank of Metropolis, 13 Pet. 302; Camden v. Doremus, 3 How. 515; Zeller's Lessee v. Eckert, 4 How. 289, 297; Phelps v. Mayer, 15 How. 160; Dredge v. Forsyth, 2 Black, 563; Young v. Martin, 8 Wall. 354; Belk v. Meagher, 104 U.S. 279; Hanna v. Maas, 122 U.S. 24; White v. Barber, 123 U.S. 392, 419; Stewart v. Wyoming Cattle Ranche Co., 128 U.S. 383; Anthony v. Louisvile & Nashville Railroad, 132 U.S. 172; Block v. Darling, 140 U.S. 234; Bogk v. Gassert, 149 U.S. 17.

It is true these were civil cases, for it is only in the later history of this court that we have had jurisdiction of writs of [p572] error in criminal cases; but the law is equally applicable to the latter. "It is the duty of counsel seasonably to call the attention of the court to any error in impaneling the jury, in admitting testimony, or in any other proceeding during the trial, by which his rights are prejudiced, and, in case of an adverse ruling, to note an exception." Alexander v. United States, 138 U.S. 353, 355. "The general rule undoubtedly is that an objection should be so framed as to indicate the precise point upon which the court is asked to rule." Sparf v. United States, 156 U.S. 51, 56; Holder v. United States, 150 U.S. 91; Tucker v. United States, 151 U.S. 164.

It is true, the defendant objected to the admission of the conversation before it was given; but, upon the state of facts as then presented, unquestionably the trial court ruled properly in permitting the witness to testify, for he positively declared that there was neither threat nor promise, intimidation or inducement. If it be true, as the court now holds, that in the progress of his testimony it was developed that he did make a statement which carried an inducement—a suggestion of hope—it was then the duty of the defendant to call the attention of the court to the matter, either by objecting to any further disclosures of the conversation, or else by a motion to strike out. Nothing of the kind took place. Defendant was apparently content to let all of the subsequent conversation come in. Can it be held that the court erred in not of its own motion stopping the witness, or striking out the testimony, or instructing the jury to disregard it, when defendant asked nothing of the kind? Surely, by this decision we practically overrule the long line of authorities heretofore cited affirming the necessity of calling the attention of the trial court to the specific matter, obtaining its ruling thereon, and saving an exception thereto before there is any jurisdiction in this court to review. Nor is this a mere technical and arbitrary rule which may be dispensed with whenever the exigencies of any case seem to demand, and in no other way a ground for reversal can be discovered. It may be, and undoubtedly often is, the case, that, though incompetent testimony be given, the defendant prefers that it shall remain, in order, for certain purposes, to take advantage of it in the argument before the jury. Can it be possible that he may obtain this advantage, and, having obtained and used it, insist that, because of such incompetent testimony, he is entitled to a reversal of the judgment against him? Wilson v. United States, 162 U.S. 613, 624. Who shall say that this defendant, though at first objecting to any testimony respecting his statements, yet, after hearing what the witness said, did not prefer that such testimony remain, as it disclosed that, at the very first moment he was informed that Brown charged him with the crime, he protested that Brown was not in a position where he could see who did the killing? Indeed, for anything in this record to the contrary, he, when a witness in his own behalf, may have given the same version of the conversation, and admitted that his statements were voluntarily made. Who shall say that he did not wish to argue before the jury that the claim made of Brown's inability to see what took place was not an excuse suggested only by the exigencies of the trial, but was presented at the very first moment of the charge; and if he was willing to let the testimony remain, and have all the advantage which he could take of it in argument before the jury, can it be that he can now come to this court, and say "true, I did not object to this specific testimony, nor ask to have it stricken out, but it was incompetent," and obtain a reversal on the ground of its admission?

I dissent, therefore, first, because I think the testimony was properly received; and, secondly, because no motion was made to strike it out, and no exception taken to its admission.