[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
To render the confession of Hayes Leonard, made to the witness Golden and others in the Montgomery county jail, admissible against the defendant, it was necessary for the state to show that it was made in the presence of the defendant, and that he remained silent or that he affirmed the truth of the statement, and that such affirmation was voluntarily made. Delaney v. State, 204 Ala. 685, 87 So. 183; Rowlan v. State, 14 Ala. App. 17, 70 So. 953; Everage v. State,113 Ala. 102, 21 So. 404; Blair v. State, 211 Ala. 53,99 So. 314; McGehee v. State, 171 Ala. 19, 55 So. 159; Whitehead v. State, 16 Ala. App. 427, 78 So. 467.
However, it was not necessary that it be shown that such affirmation of the truth of the confession was made at the same time and place, but if it was subsequently made and shown to be voluntary — that is, made when the mind of the accused was free from the influence of hope or fear excited by menace or encouragement that he would be more favorably dealt with if he confessed — this is all sufficient to authorize its admission in evidence. Banks v. State, 84 Ala. 431, 4 So. 382.
The court, sitting in banc, after careful consideration of the record is of the opinion that it clearly appears that so much of the alleged confession of Hayes Leonard as was given in evidence through the testimony of witness Hasty Golden was made in the presence of the defendant, and the defendant in a subsequent confession to the witness Sellers, shown to be voluntary, affirmed the truth of Leonard's confession in every material respect by stating:
"That everything this old darkie has said is true, with the exception of one thing, and that was this — when he went up on the porch to fire the fatal shot I was not standing right behind him with a pistol — that part is not true. I was there; I planned everything; I was 20 or 30 steps away when he fired the shot."
Under the rule heretofore stated, this evidence was properly admitted and the rulings of the court in this respect were free from error.
The state's objection to the question to the witness Bill Macon, "Was she crazy before she committed suicide?" referring to defendant's great-grandmother, was properly sustained. The witness had testified that he did not know the name of defendant's great-grandmother, that she died of suicide in about the year 1871. This, under the authorities, was not sufficient to qualify a nonexpert witness to give his opinion that the person inquired about was "crazy." Parrish v. State,139 Ala. 16, 36 So. 1012; Braham v. State, 143 Ala. 28,38 So. 919; People v. Harris, 169 Cal. 53, 145 P. 520; 16 C. J. 752.
The same observation is true as to the questions to this witness in reference to the insanity of Roxie Williams, Mat Williams, and Reuben Smith. As to his acquaintance with Roxie Williams, the witness testified:
"I knew her mother, Roxie Williams, Roxie Williams is his great-great-great-grandmother."
As to Mat Williams:
"I knew this boy's great-aunt, the sister of his great-grandmother; she was called Aunt Mat Williams. I don't know how long she has been dead. I knew her in her lifetime, but don't know how old she was when I knew her."
Reuben Smith was shown to be a brother of defendant's paternal great-grandmother, and as to his acquaintance with Reuben Smith the witness testified:
"I knew her brother, Reuben Smith; he has been dead a long time. I knew his mental condition."
This does not show such acquaintance and continuous intimacy on the part of the witness with these parties as would enable him to form an accurate and trustworthy opinion as to their mental condition. Jones v. State, 181 Ala. 63, 61 So. 434; Braham v. State, 143 Ala. 28, 38 So. 919; Parrish v. State, supra.
The record shows, to use the language of the bill of exceptions, that:
"During the opening argument of the state, in commenting upon certain testimony to the effect that the defendant was a cry baby, * * * special counsel for the prosecution used the following expression: 'I have been watching him during the whole trial and he has not shed a tear.' The defendant thereupon objected to the above remark by special counsel for the state, the court sustained the objection and instructed the jury as follows: 'Gentlemen of the jury, any remark with reference to the conduct or appearance of the accused during the trial will not be considered by you. It is an improper statement and should not influence you in making up your verdict.'
"Whereupon the defendant's counsel said to the court, 'If your honor please, I suppose your honor has said what would ordinarily be sufficient, but this is an error that is incurable before this jury and, while I know Judge Tate did not intend to do anything wrong, and I hate to make such a motion, I feel compelled to move the court to direct a mistrial and to discharge the jury and summons another.' The court remarked that it has instructed the jury and overruled said motion to discharge the jury and summons another, and the defendant then and there excepted."
The theory of the appellant, as indicated by his motion to direct a mistrial and his argument here, is that the remark of state's counsel was so grossly improper and highly prejudicial that the corrective action taken by the court was wholly inadequate to remove its injurious effects.
Stated in another way, appellant contends that the remark of the prosecuting attorney falls within the exception to the general rule stated in B. R., L. P. Co. v. Gonzalez, 183 Ala. 287,61 So. 84 (Ann. Cas. 1916A, 543), to the effect:
"That, if the improper remarks are of such a character that neither rebuke nor retraction can entirely destroy their sinister influence, a new trial should be promptly awarded, regardless of the want of a proper objection or exception."
In Bestor v. State, 209 Ala. 693, 96 So. 899, cited and relied on by the appellant, the remarks complained of were of a character more calculated to excite prejudice than the remark here in question, and the conduct of counsel was persisted in by a repetition of the objectionable statement, yet the court denied a new trial because no adverse ruling to the appellant in that case was shown. If the conduct complained of in that case was within the exception above stated, adverse rulings and exceptions were wholly unnecessary.
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
To render the confession of Hayes Leonard, made to the witness Golden and others in the Montgomery county jail, admissible against the defendant, it was necessary for the state to show that it was made in the presence of the defendant, and that he remained silent or that he affirmed the truth of the statement, and that such affirmation was voluntarily made. Delaney v. State, 204 Ala. 685, 87 So. 183; Rowlan v. State, 14 Ala. App. 17, 70 So. 953; Everage v. State,113 Ala. 102, 21 So. 404; Blair v. State, 211 Ala. 53,99 So. 314; McGehee v. State, 171 Ala. 19, 55 So. 159; Whitehead v. State, 16 Ala. App. 427, 78 So. 467.
However, it was not necessary that it be shown that such affirmation of the truth of the confession was made at the same time and place, but if it was subsequently made and shown to be voluntary — that is, made when the mind of the accused was free from the influence of hope or fear excited by menace or encouragement that he would be more favorably dealt with if he confessed — this is all sufficient to authorize its admission in evidence. Banks v. State, 84 Ala. 431, 4 So. 382.
The court, sitting in banc, after careful consideration of the record is of the opinion that it clearly appears that so much of the alleged confession of Hayes Leonard as was given in evidence through the testimony of witness Hasty Golden was made in the presence of the defendant, and the defendant in a subsequent confession to the witness Sellers, shown to be voluntary, affirmed the truth of Leonard's confession in every material respect by stating:
"That everything this old darkie has said is true, with the exception of one thing, and that was this — when he went up on the porch to fire the fatal shot I was not standing right behind him with a pistol — that part is not true. I was there; I planned everything; I was 20 or 30 steps away when he fired the shot."
Under the rule heretofore stated, this evidence was properly admitted and the rulings of the court in this respect were free from error.
The state's objection to the question to the witness Bill Macon, "Was she crazy before she committed suicide?" referring to defendant's great-grandmother, was properly sustained. The witness had testified that he did not know the name of defendant's great-grandmother, that she died of suicide in about the year 1871. This, under the authorities, was not sufficient to qualify a nonexpert witness to give his opinion that the person inquired about was "crazy." Parrish v. State,139 Ala. 16, 36 So. 1012; Braham v. State, 143 Ala. 28,38 So. 919; People v. Harris, 169 Cal. 53, 145 P. 520; 16 C. J. 752.
The same observation is true as to the questions to this witness in reference to the insanity of Roxie Williams, Mat Williams, and Reuben Smith. As to his acquaintance with Roxie Williams, the witness testified:
"I knew her mother, Roxie Williams, Roxie Williams is his great-great-great-grandmother."
As to Mat Williams:
"I knew this boy's great-aunt, the sister of his great-grandmother; she was called Aunt Mat Williams. I don't know how long she has been dead. I knew her in her lifetime, but don't know how old she was when I knew her."
Reuben Smith was shown to be a brother of defendant's paternal great-grandmother, and as to his acquaintance with Reuben Smith the witness testified:
"I knew her brother, Reuben Smith; he has been dead a long time. I knew his mental condition."
This does not show such acquaintance and continuous intimacy on the part of the witness with these parties as would enable him to form an accurate and trustworthy opinion as to their mental condition. Jones v. State, 181 Ala. 63, 61 So. 434; Braham v. State, 143 Ala. 28, 38 So. 919; Parrish v. State, supra.
The record shows, to use the language of the bill of exceptions, that:
"During the opening argument of the state, in commenting upon certain testimony to the effect that the defendant was a cry baby, * * * special counsel for the prosecution used the following expression: 'I have been watching him during the whole trial and he has not shed a tear.' The defendant thereupon objected to the above remark by special counsel for the state, the court sustained the objection and instructed the jury as follows: 'Gentlemen of the jury, any remark with reference to the conduct or appearance of the accused during the trial will not be considered by you. It is an improper statement and should not influence you in making up your verdict.'
"Whereupon the defendant's counsel said to the court, 'If your honor please, I suppose your honor has said what would ordinarily be sufficient, but this is an error that is incurable before this jury and, while I know Judge Tate did not intend to do anything wrong, and I hate to make such a motion, I feel compelled to move the court to direct a mistrial and to discharge the jury and summons another.' The court remarked that it has instructed the jury and overruled said motion to discharge the jury and summons another, and the defendant then and there excepted."
The theory of the appellant, as indicated by his motion to direct a mistrial and his argument here, is that the remark of state's counsel was so grossly improper and highly prejudicial that the corrective action taken by the court was wholly inadequate to remove its injurious effects.
Stated in another way, appellant contends that the remark of the prosecuting attorney falls within the exception to the general rule stated in B. R., L. P. Co. v. Gonzalez, 183 Ala. 287,61 So. 84 (Ann. Cas. 1916A, 543), to the effect:
"That, if the improper remarks are of such a character that neither rebuke nor retraction can entirely destroy their sinister influence, a new trial should be promptly awarded, regardless of the want of a proper objection or exception."
In Bestor v. State, 209 Ala. 693, 96 So. 899, cited and relied on by the appellant, the remarks complained of were of a character more calculated to excite prejudice than the remark here in question, and the conduct of counsel was persisted in by a repetition of the objectionable statement, yet the court denied a new trial because no adverse ruling to the appellant in that case was shown. If the conduct complained of in that case was within the exception above stated, adverse rulings and exceptions were wholly unnecessary.
The statement of counsel complained of here was not a violation of the statute which prohibits comment by counsel on the failure of the defendant to avail himself of the right to testify in his own behalf (Code of 1923, § 5632), and while it was the statement of a fact not given in evidence and was improper, yet it was of a fact within the observation of the jury, and, if true, of which they had probably already taken notice; if not true, it was contrary to what the jury had probably observed. We are therefore of opinion that the corrective instruction by the court was sufficient to avert prejudice to the defendant and error will not be predicated on the refusal of the court to direct a mistrial.
The same observation applies to the remarks of the state's counsel made in the closing argument, to which the court sustained objections. Hall v. State (Ala. Sup.)113 So. 64;1 Birmingham Electric Co. v. Cleveland, 113 So. 403;2 Anderson v. State, 209 Ala. 36, 95 So. 171; Cagle v. State, 211 Ala. 346,100 So. 318; B. R., L. P. Co. v. Gonzalez, 183 Ala. 273,61 So. 80, Ann. Cas. 1916A, 543; Russell v. State, 201 Ala. 573,78 So. 916.
The bill of exceptions recites that counsel for defendant, in his closing argument, "stated, in substance, to the jury that he was not asking that defendant be turned loose; that defendant had forfeited his right to liberty, and he was simply asking the jury not to kill him."
Commenting on this argument, the prosecuting attorney, in the closing argument, stated that counsel for defendant, "in his argument to the jury, said that defendant ought not to be turned loose, that he had forfeited his liberty, that headmitted there is no merit to his plea of insanity." The defendant objected to so much of the statement as is italicized, and the court overruled the objection. In this respect prosecuting counsel did not transcend the legitimate boundary of discussion. Cross v. State, 68 Ala. 476; Birmingham Electric Co. v. Cleveland, post, p. 455, 113 So. 403.
Charges 3, Y, and X, the affirmative charge for the defendant in different forms, were all properly refused.
Charge D was not a correct statement of the law and was properly refused. Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am. Rep. 193; Parrish v. State, 139 Ala. 16, 36 So. 1012.
Charges A and B, refused to the defendant, appear to be in the language of Chief Justice Brickell, used arguendo, in the criticism of the oral charge of the court in Brown v. State,109 Ala. 70, 20 So. 103, in which the majority of the Justices did not concur. They are argumentative and were properly refused. Charge A-1, if not otherwise bad, uses the expression, "not guilty by reasonable of insanity," and for this reason was properly refused.
The "general atmosphere" doctrine, if such it may be denominated, recognized in Moulton v. State, 199 Ala. 411,74 So. 454, has no application here. The deceased was the defendant's father-in-law, the families of the defendant and the deceased were friendly, intimately associated, and moved in the same social circles, both families living in the same community, and on the trial the defendant appears to have had the full sympathy and support of his people, and, if there was an atmosphere unfriendly to the defendant's interest, it was only such as developed from the enormity of the crime. If this could be said to justify the granting of a new trial, then the more heinous the offense the greater the chance of the accused to obtain a new trial after conviction.
The facts of the Moulton Case clearly differentiate that case from this.
After careful examination of all questions presented on the record, we find no reversible errors, and the judgment of conviction, rendered on the verdict of the jury finding the defendant guilty and fixing his punishment at death, is affirmed.
The appellant was sentenced to "be hanged by the neck until he is dead," and the court ordered the performance of the execution to "be in accordance with section 5296 of the Criminal Code." Since that sentence was pronounced the method of execution has been changed by operation of law, and the sentence, so far as it directs the method of execution, is annulled, and the case is remanded to the circuit court of Elmore county for proper sentence in accordance with the statute. Code of 1923, §§ 5309, 5310; People ex rel. Kemmler v. Durston, 119 N.Y. 569, 24 N.E. 6, 7 L.R.A. 715, 16 Am. St. Rep. 859; Hall v. State, ante, p. 336, 113 So. 64.
The judgment of conviction is affirmed and the case is remanded for proper sentence.
SAYRE, SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.
ANDERSON, C. J., and GARDNER, J., concur except as to the remandment of the case for sentence, they being of opinion that the date for the execution of the death sentence having expired, it is not only within the power of the court, but is the duty of the court to fix the date for the execution of the death sentence and to order the manner of its execution in accordance with the statute now in force. Buford v. State,118 Ala. 657, 23 So. 1005; Howard v. State, 110 Ala. 92,20 So. 365; Code of 1923, § 3260.
1 Ante, p. 336.
2 Post, p. 455.
On Rehearing.