Burton v. State

107 Ala. 108

• Court: Supreme Court of Alabama
• Decided: November 15, 1894
• Status: Published

Opinion

COLEMAN, J.

The defendant was convicted of murder in the second degree. Before entering upon the trial he moved the court to quash the venire. The statute provides that "if the sheriff shall serve a copy of the special jury drawn to try said case, together with a copy of the jurors drawn and summoned for such week, together with a copy of the indictment one entire day before the day set for the trial, that shall be held a compliance with the law requiring a copy of the jury and indictment to be served on the defendant, as hereinbefore provided.” — Acts of 1886-7, p. 151, Sec. 11. The record and bill of exceptions show, that the orders of the court, and the venire served upon the defendant, were in compliance with the statute. The sheriff is required to serve a copy of the special venire drawn, together with a copy of the jurors drawn and summoned for the week, upon the defendant. The act makes a distinction between the regular jurors for the week and the jurors drawn specially to try the case. As to the latter, a copy of the jurors drawn is to be served, while as to the former, a copy of the jurors drawn and summoned is to be served. The reasons for the distinction are obvious, and any other rule would result in delay and confusion.

It is contended that section 11 of the act of February, 1886-87, supra, is obnoxious to Section 2, Article 4 of the Constitution. This argument is based upon the provision of Section 4449 of the Criminal Code, which provides “that a copy of the indictment and a list of the jurors summoned for his trial, including the regular jury summoned for the week in which his case is set for trial, must be served on him, or on counsel appearing for him, at least one entire day, before the day set for his trial.” The section of the Code provides for the service of a copy of the list of jurors summoned for his trial, while the act provides for the service of a copy of the special venire drawn, for his trial. The act of 1886-87 was intended, as its title and provisions clearly show, to provide a complete system in and of itself for securing competent and well qualified jurors, and without reference to other existing statutory provisions affecting the matters provided for by the statute. Its title is very comprehensive. All the subjects of the statute are "referable and cognate” to that expressed in the title.—Ballentyne v. Wickersham, 75 Ala. 533; Tatum v. The State, 82 Ala. 5. It was not the purpose of the statute of 1886-87, supra, to revive or amend any existing law, or to extend or confer the provisions of an existing law, but to provide a system complete of itself as far as its provisions go. A statute of this character, and having this effect, is not obnoxious to the Constitution. The motion to quash the venire was properly overruled.

The principal exceptions reserved upon the ruling of the court during the progress of the trial, relate to the admissions of the confessions of the defendant. It is insisted that the confessions testified to, if made, were made under circumstances which show, that they ought not to have been admitted against the objections of the defendant. The defendant, a youth not quite fifteen years of age, was arrested on a warrant charging him with the murder of Jethro Evans, the son of the sheriff of the county, and by him placed in jail. The sheriff was absent for a few days, attending the burial of his son, and in the meantime, the jail and prisoners were left in the custody of his deputy, who it seems was also a son. No one, not even the prisoner’s .counsel or his father, were allowed access to him during the absence of the sheriff. His father saw him on the night of the arrest, and cautioned him against speaking of the matter with which he was charged. It appears that the sheriff had. employed counsel to prosecute the defendant. Questions in regard to the killing were plied to the defendant . A detective was also put in j ail by the sheriff, and'who deceived the defendant as to his real character. Some of the confessions as testified to were made, in the interim before counsel were admitted to the jail, and before the detective was employed ; others subsequent to the admission of counsel and of the detective. The record shows affirmatively that there were no promises of favor nor inducements held out to obtain the confessions, nor was there persuasion, or compulsion or threats or cause to produce fear, other than arose from the surroundings . It is insisted that the youth of the defendant, his imprisonment, the prohibition of access to him, the deceit practiced by the detective, and the fact that the sheriff, who was prosecuting the case, had him in charge, all being considered, are sufficient to raise the presumption that the confessions were involuntary and not admissible. All of these conditions did not exist as to all the confessions admitted, but all did exist as to some of the confessions, and the question is, whether there is reversible error, as to the admission of any of the confessions. The testimony of the detective is most strenuously resisted. We will consider that first. The defendant was over fourteen years of age, and criminally responsible. The detective was an entire stranger to him. If the evidence of this witness is to be believed, the defendant supposed he was a murderer and confined in jail on a charge similar to the one against the defendant, and tliat there were other grave charges against witness. The detective was planning an escape, and assured the defendant of his ability to make it good. He seems to have acquired the entire confidence of defendant. This may have been the more easily accomplished, because of the youth and unsuspecting character of the defendant, but the question for consideration is whether the confessions were voluntary. The fact that the defendant was deceived, does not in the least tend to show that his statements in regard to the killing of Evans were induced by hope or fear, or calculated to elicit an untrue statement. What weight, if any, a jury would give to the testimony of the detective, or confessions elicited under such circumstances, rests wholly with them. We do not think the court erred, in holding that they were competent for tin1 consideration of the jury.

The other witnesses who testified to the confessions of the defendant were .well known to him. They swear affirmatively that neither persuasion, promises, nor threats were used. Prima facie they were admissible. The credibility of the witnesses, their bias, if any, relationship to the deceased, the truth of the confessions themselves, the weight to be given to them, were questions to be considered and determined by the jury under the circumstances. Facts discovered in consequence of confessions, show the truth of the confessions, but do not show they were freely and voluntarily made; but facts which were already known to a witness, testifying to confessions of a party as having been made relative to such facts, can not be considered as corroborating the witness that the confessions, were in fact made. If the jury believe the confessions were in fact made as testified to, and the confessions state facts, which are’proven to be true, independent of the confessions, such evidence tends to show, that the confessions were knowingly, intelligently and truly made.

We are of opinion that the confessions of the defendant were properly admitted, and our conclusion is supported by the following authorities: Hornsby v. The State, 94 Ala. 64, and authorities; Goodwin v. The State, 102 Ala. 87; Young v. The State, 68 Ala. 569, dissenting opinion; Redd v. The State, 68 Ala. 498; Murphy v. The State, 63 Ala. 1; Gregg v. The State, 17 So. Rep. 321.

The notes found on the body of deceased were properly-admitted in evidence. The hand-writing of the defendant was sufficiently proven to authorize their admission. In addition, there was independent evidence of written communications passing from defendant to deceased during school hours, in regard to a matter, that defendant desired should be kept concealed from others. The court did not err in allowing the witness to testify that he saw the defendant, a short time after the gun shots were heard, which it is supposed resulted in the death of the deceased, and that he “looked paler than usual.” This exception is not insisted on in argument. The theory of the State is, and there is circumstantial evidence tending to bear it out, that the defendant was seen going at a rapid pace from the place where the body of deceased was found, immediately after the firing was heard in that direction, and the witness testified that it was then he saw the defendant, and he “looked paler than common.” The witness testified to a fact. Whether true or merely imaginary, and what weight, if any. should be given to it, rested purely with the juiy. In the case of Railroad Co. v. McLendon, 63 Ala 266, and which was re-affirmed in the case of Burney v. Torrey, 100 Ala. 157; 14 So. Rep. 684, it was held that it was competent for a witness to testify that another “seemed tobe suffering” that he “looked bad” that the testator “was childish,” that “his expression was simple.” Thar another “looked paler thau common,” carried a distinct fact to the minds of the jurors, can not be questioned, and is fairly within the influence of these decisions.

, We are of opinion the court ruled rightly in admitting the testimony of the witness Leander Evans, who was a brother of the deceased, that the defendant endeavored on the same day to get the witness to meet him out with his father's (the sheriff) pistol. The notes of defendant to deceased introduced in evidence, urged the deceased to procure the pistol of his father and to meet him with it. The. evidence tends to show chat deceased did get the pistol from his father's trunk and met defendant according to appointment. There is evidence, which if believed, shows that after the shooting the defendant had this pistol in his possession. Up to the trial the pistol had not been found. The prosecution contends, that the fact, that deceased showed so much desire to get possession of the pistol, that he had possession of it after the killing of Jethro Evans, that it has been hidden since the killing of deceased, tends to show a motivo for the act, and is also a criminating circumstance. It may or may not bo entitled to much weight, but we think the evidence might properly go to the jury to be considered in connection with the other evidence.

There was no error in allowing the paper with "A. Vaughan” written on it tobe introduced in evidence. According to some of the evidence, the defendant stated at one time, he did not kill deceassd, but saw the man who did; that he would not call his name, but would write it, and that he wrote “A. Vaughan” as the person.

There is an exception to the introduction of a map, which purported to show the place where the body was found, and many natural objects testified about during the trial, their relative directions and distances from each other and from the place of homicide. The map seems to have been used generally by both sides, without objection during the trial, and referred to by the witnesses as illustrating and explaining their testimony. There was evidence, also, showing that for the purposes for. which it was used, it was substantially correct. Under these circumstances, the court did not err in permitting the map to go to the jury. We have said this much in regard to this exception more for the purpose of stating the rule, than as a decision upon the exception insisted upon. The bill of exceptions states that the map is found on page-. The page is not given. There is no map which is made a part of the record. We find a loose map in the record not attached to it, nor a part of it, We can not properly review the exception.

Two bullets or balls taken from a tree near where the body was found, and also the hat worn by deceased with a. gun shot hole init were introduced in evidence, against the objection of the defendant. The objection is single and goes to the introduction of the hat and bullets. We have but recently decided the question as to the admissibility of the hat, and as the objection included both the hat and balls, there was no objection in overruling the motion. Wo are of opinion, however, that the bullets were properly admissible, as well as the evidence showing the depth of their penetration, and also the location of the balls to the mark, at which they were apparently fired. There was evidence tending to show that deceased carried his father’s pistol to the appointed place, and that defendant had a rifle with him on the evening of the homicide and was seen with it as he returned home. Some of the confessions of the defendant, if believed to have been made, were to the effect that he and deceased shot at the mark, one using a riñe and the other the pistol. These facts tended to corroborate the facts stated by the defendant in his confessions, if the jury believed they were made, and were admissible on the same principle, that it was permissible to show that deceased had been shot three times, the gun shots taking effect as, and where, the defendant had confessed that he had shot deceased.

We find no error in the ruling of the conrt upon questions of evidence.

We will next consider the ruling of the court giving and refusing such of the charges as we deem material. The record shows that the State l'equested over thirty charges and the defendant over eighty. We do not think it improper to say in this connection, that so many charges tend to confusion, rather than to secure a just verdict. If a jury is intelligent and honest, the insistence of the prosecution upon technical objections and finely spun distinctions of doubtful character, are not calculated to render a conviction more certain, and often lead to a reversal of a cause, where the conviction was proper upon the merits of the case and would have been as certainly rendered, had the objections been waived, and the doubtful distinctions not attempted. The State does not desire the conviction of any person, except upon the merits of the case, and by a .verdict intelligently rendered. If jurors have not a proper regard for the oath they have taken, and their duty to the public, technicalities and charges of doubtful legality will have no influence upon them. It is much safer to rely upon the strength of the case upon its merits, and the intelligence and integrity of the jury, than technical objections and subtle distinctions.

We are of opinion the court erred in giving charge eleven. If the jury believed beyond a reasonable doubt that defendant induced Jethro Evans to go with him to a secluded spot, for the purpose of taking his life, and, •in pursuance of such purpose or design, killed him wit]) a gun or pistol, the offense would be murder in the first degree. A charge similarly defective as to the intent was considered in the case of Green v. The State, 97 Ala. 59, 65. In the charge, murder in the first degree, as a conclusion of law, is predicated on the fact that the killing was done with formed design with a deadly weapon in a secluded spot. These are pregnant facts for the consideration of the jury, but these facts do not raise the conclusive presumption as matter of law, that the offense was murder in the first degree. The meeting in the secluded spot may have been for a friendly purpose. It was for the jury to say under all the circumstances. If the defendant committed the act there is no known eye-witness living other than himself. The guilt of the defendant depends upon circumstantial evidence and his confession. Where one intentionally kills another with a deadly weapon, there is a formed design to kill and the law presumes malice, unless the evidence which proves the killing rebuts the presumption. Whether the “formed design” to take life is the offspring of the elements that constitute murder in the first degree, that is, willful, deliberate, malicious, and premeditated, or from the facts which constitute murder in the second degree, or from sudden passion upon sufficient provocation, or from self-defense, is a question of fact for the jury acting under the presumptions of law from the facts as declared and instructed by the court — Hornsby case, 94 Ala. 55. In either case, the “formed design” may exist but a moment before the fatal act, but the character of the offense is determined by the elements, which called into existence the “formed design.”

The fourteenth charge given was faulty, in that it authorized a conviction upon the mere belief of the ■ jury, instead of requiring them to be satisfied beyond a reasonable doubt.—Whittaker v. State, 17 So. Rep. 456.

Charge 28 given at the instance of the prosecution and charges 67 and 68, refused to the defendant, will be considered in part together, These relate to the province and power of tire jury as to confessions after they have been admitted by the court. It is the established law of this State, and that which prevails almost universally, that confessions of a defendant are not admissible against him, in a criminal prosecution, unless voluntarily made. Whether voluntarily made or not, we Irold is a question of law to be determined by the court from the facts, as a condition precedent to their admission.—Bonner v. The State. 55 Ala. 242 and authorities; Young v. The State, 68 Ala. 569. Having been declared competent and admissible, they are before the jury for consideration. The jury have no authority to reject them as incompetent. But the jury are the sole judges of the truth and weight to be given confessions, as they are of any other fact. In weighing the confessions, the jury must take into consideration all the circumstances surrounding them, and under which they were made, including those under which the court declared as matter of law they were voluntary. In weighing confessions, the jury necessarily consider those facts upon which their admissibility, as having been voluntarily made, depends. While there is no power in the jury to reject the confessions as being incompetent, there is no power in the court to control the jury in the weight to be given to facts. The jury may, therefore, in the exercise of their authority and within their province, determine that the confessions are untrue, or not entitled to any weight, upon the grounds that they were not voluntarily made. The court passes upon the facts merely for the purpose •of determining their competency and admissibility. The jury pass upon the same facts, and in connection with other facts, if there are other facts, in determining whether the confessions are true and entitled to any and how much weight. The court and jury each have a well defined and separate province. — Young’s Case, supra. It follows, that although the jury may come to the conclusion that the confessions were not voluntary, yet if from extrinsic evidence or from their character and the circumstances, the jury are satisfied that they are true, the jury should act upon them. Being competent and the jury being satisfied beyond a reasonable doubt of their truth, the jury may very properly convict on such evidence. There was no error in giving charge 28. The statement in the opinion of the case of Goodwin v. The State, s-upra, that it is the “duty” of the jury to discard and reject the confessions altogether if they are of opinion that the confessions were not voluntarily made, although they may believe them to be true, is herein modified in so far as it conflicts with the opinion in the present case.

Charge 67 requested by defendant is not full enough. The jury consider whether confessions were voluntary in passing upon their weight, but the jury is not authorized to determine their admissibility. The charge was calculated to mislead.

Charge 67 was properly refused, as invading the province of the jury. It required the jury to reject the confessions absolutely, if in their opinion they were not voluntarily made. It was their duty to consider them and their province to give them such weight as they saw proper.

Charge numbered 13 requested by the defendant should have been given. Under the facts of the case, if the jury believed that defendant was at home at the time of the homicide, he was entitled ifo an acquittal. The charge requested was more favorable to the State, than the law demanded under the facts For like reasons, charge 15 requested should have been given.

We are of opinion charge 46 should have been given. We find no objection to it.

We are not inclined to consider further in detail all the charges requested and refused. It would be discharging a burden not necessary for the administration of justice.' Many of them, though intended to express legal propositions, are not drawn with care, and on account of their phraseology are misleading or argumentative ; others are postively erroneous, while others single out facts and give them undue prominence. Some of the charges ignore the right of the jury to believe a part of the confessions and reject others. In fact the confessions testified to, in some instances are so contradictory, that the whole cannot be true. — Eiland’s case. 52 Ala. 322, 335.

For the errors mentioned, the judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.