Mose v. State

36 Ala. 211

Opinion

A. J. WALEER, C. J.

The prisoner was arraigned, and pleaded “not guilty,” at the term of the court at which he was indicted. Upon his last trial, he stood mute; and the court caused the plea of not guilty to be entered, against the objection of his counsel. In this there was no reversible error. It is not conceivable that the prisoner could have sustained the slightest detriment from the course adopted by the court.

[2.] We cannot sustain the position, that the statute does not authorize a change of venue in the case of a slave prosecuted by an indictment. The statute provides, that “the trial of any person, charged with an indictable offense, maybe removed to another county, on the application of the defendant, duly supported by affidavit.” A slave is a person, in the eye of the criminal law, and, when indicted, is clearly within the language of the statute. There was, therefore, no error in the refusal of the first charge.

[3.] The law undoubtedly requires, that a confession should be shown, prim,a facie, to have been voluntary, before it is admitted in evidence to the jury. — Brister v. The State, 26 Ala. 128; Wyatt v. State, 25 Ala. 12; 1 Phil. on Ev. (edition of 1859,) 542; 1 Greenl. on Ev. § 219; Regina v. Warringham, 2 Leading Criminal Cases, 167; 2 East’s Cr. Law, 567. This is usually shown by negative answers to the questions, “whether the prisoner had been told that it would be better for him to confess, or worse for him if he did not confess; or whether language to that effect had been addressed to him.” — Wyatt v. State, supra. Before the court-decided to admit the confession made to Jennings, the witness stated, that he visited the prisoner at his instance; that he addressed to the prisoner the question, “what do you want with me?” — that the prisoner replied, “I have known you a longtime; we are members of the same church. You examined me very closely on the other trial. I then told you a lie; I now-want to talk to you as a church member;” and that he (the witness) knew of no promises or threats made to the prisoner. TJpon this preliminary proof, the court correctly ruled, that the State might proceed with proof of the disclosure rnade to the witness. There was a substantial, though not a literal compliance with the rule, as to the proper inquiry preliminary to the admission of the confession. It appeared, prima facie, that the confession was voluntary.

[4.] After the court ruled that the confession was, upon the evidence adduced for the prosecution, admissible, the prisoner produced witnesses, with a view of showing that the confessions made to the witness Jennings, and also to Carson, were not voluntary. After hearing the evidence, which is set out in the bill of exceptions, the court admitted the confessions made separately to the two witnesses. "We are now to inquire whether the court erred in its ruling. The master of the prisoner, some weeks before the confession, made a promise of favor and protection, if the prisoner would disclose to Mm. The slave made no disclosure, but protested his innocence. Subsequently, the master, on hearing of a disclosure made by another slave, told the prisoner, that he believed him guilty; that he wished him to be hung; that he would give two hundred dollars to have him hung; and that the prisoner need not expect any further assistance or protection from him. On the next day, the confessions were made separately to the witnesses Carson and Jennings. The question arises, whether or not these confessions were induced by the mastei’’s promises of favor, made some time before.

It is a rule of great strictness, that if a confession has once been obtaiued by undue means, no subsequent confessions of like character are evidence, unless it is shown that the influence has been removed. — Bob v. The State, 32 Ala. 560. This rule would be applicable, and might have a controlling influence, if the slave had yielded to his master’s inducement, and made a confession to the master. The question is, however, not whether an in ducement, which produced, a confession upon the occasion of its offer, is the parent of a second confession; but, whether an inducement, which had no effect at the time when it was made, was the cause of a confession made some weeks afterwards. The promise of the master was put upon the condition of a disclosure to him. The favor promised was, that the master would run the slave out of the country, and sell him. The master’s ability to fulfill that promise depended, in a great measure, if not entirely, upon the confessions being made privately to the master, before the law had taken him into its custody. It may, therefore, well be doubted, whether the master’s promise could have been understood to extend to a future confession, made to some other person. The slave, however, resisted the inducement, when offered by his master, who had authority over him, to whom he was accustomed to look for protection, and who had, in all probability, the ability at the time to execute the promise. Is it probable, that the inducement, which was ineffectual when offered under such circumstances, acquired several weeks after-wards such an influence, as to superinduce a confession to a person other than the master, when the prisoner had been .taken into custody, and the master’s ability to comply with the promise was greatly lessened, if not altogether destroyed ? We do not pause to answer this question ; for, if we could conceive it possible that a slight influence produced by the master’s promise lingered in the slave’s mind, and was liable to produce a confession, we should be bound to regard that influence, as totally removed by the forcible admonition of the master, that he need not expect any further assistance or protection from him; that he believed him guilty, and desired him to be hung. Looking at the subject in every aspect, we think the court below was entirely safe in assuming, that no influence exerted by the promise of the prisoner’s master caused the confessions which were made. — Moore’s case, 2 Leigh, 701; State v. Guild, 5 Hals. 163. The principle is, that although a threat or promise may have been made use of, the coniession is to be received, if it has been made under such circumstances as to create a reasonable presumption that the threat or promise had no influence, or had ceased to have influence upon the mind of the party. — Roscoe’s Crim. Ev. 42; 1 Greenl. on Ev. §221; Brister v. State, 26 Ala. 129.

To the argument that the confessions were promised in order to procure an opportunity to sleep, and afterwards made in fulfillment of that promise, we cannot assent. The testimony very clearly shows that the prisoner sent for the witness Carson ; that he asked an opportunity to sleep, in order that he might compose his mind; and that he voluntarily requested the witness to return in an hour, in order that he might talk with him. The opportunity of sleeping was not afforded upon condition that he would confess, but was asked because, in the perturbed and distressed state of his mind, the prisoner needed the composure which sleep would bring to fit him for the interview which he desired.

There was nothing said by either of the witnesses, Carson or Jennings, calculated to produce upon the prisoner’s mind the belief that it would either be worse for him to withhold his confession, or better for him to make it. His confessions seem to have been prompted by a sense of religious duty, awakened by the apprehension of a speedy execution at the hands of lawless violence, and were not the result of the slightest hope of temporal benefit on account of the confessions. We decide, therefore, that the court below committed no errorin admitting in evidence the confessions made to the witnesses Carson and Jennings.

[5.] Before the court went into the preliminary examination for the purpose of ascertaining whether the confessions were voluntary, the prisoner’s counsel moved the court to cause the jury to withdraw pending the examination, lest they might be so affected by the evidence detailed on the preliminary examination, that the impression could not be removed if the evidence was excluded. The court refused to cause the jury to retire, and the prisoner excepted. As the confessions were admissible, the prisoner could have sustained no injury from the fact that the jury was present during the preliminary investi gation ; and we could not reverse, even though the court had erred in that respect. We deem it proper, however, to say, that the court committed no error in refusing to cause the jury to retire, as was requested. There is no rule of law, which requires that inquiries as to the admissibility of evidence should be conducted apart from the jury; and we can perceive no adequate reason why we should inaugurate such a rule. We can not presume that jurors are incompetent to banish from their minds the effect of those things which may happen to be heard by them in such examinations, and which are not admitted as evidence for their consideration. ' We do not act upon that presumption. It is settled that no reversible error is committed by the admission of illegal evidence, if it be afterwards withdrawn. — Frierson v. Frierson, 21 Ala. 549 ; Bilberry v. Mobley, ib. 277. The propriety of conducting such examinations apart from the jury, must be left to the discretion of the presiding judge. There may occur cases where such a course would be necessary, in order to accomplish the ends of justice. When such a case occurs, an appeal must be made to the enlightened discretion of the circuit judge.

[6.] The evidence of the witness Quarles was admissible. It was pertinent to the question of the correctness of the declarations of the deceased, and of the confessions of the accused; and ior that, reason, if for no other, it was competent testimony in the cause.

[7.] The witness. Wiley stated, that he knew the character of the witness Hardy in the family to which he belonged, and that the family consisted of eight or ten whites, and about fifty blacks; but he stated, that he did not know his character in the community. The court permitted the character in such family to be given in evidence, and that ruling is assigned for error. It is true that the repute in the neighborhood' is usually laid down in the law-books as the test of the general character which may be given in evidence ; but the inquiry is not to be confined to the repute among those who, on account of propinquity of residence, are neighbors in the common acceptation of the term. The term neighborhood is said, in a Pennsylvania case, to be co-extensive with the intercourse of the witness. — Chess v. Chess, 1 Penn. R. 40. This court, in discussing the qualification of a witness to testify as to character, decided, that he must be able to state what is the general repute of the person with those among whom he dwells, or with whom he is ehiefiy conversant. — Sorrelle v. Craig, 9 Ala. 534; Hadjo v. Gooden, 13 Ala. 718. Again, this court said, that the question should be, whether the witness knows the general character among his neighbors, or those acquainted with him. Dave v. State, 22 Ala. 23. Eight or ten whites and fifty slaves, congregated together, form quite a community. A wholesome discipline requires that the slaves should be kept chiefly at home; and the intercourse of the slave outside such community is, in many cases, rare, and fora very short time. It may frequently happen, therefore, that the slave has no character outside of the community to which he specially belongs. His character in a family or community, such as that above mentioned, is not a reputation with a few persons *. it is a general character, and often the only character which the slave has. We think a slave’s general character in such a community is admissible in evidence. Such a character will frequently be as extensive as the slave’s intercourse, and will be his reputation with those who are chiefly conversant with him. There was no error in admitting the evidence of the witness Wiley.

[8.] The evidence of Buster, as to character, ought to have been excluded. He showed by his answer on cross-examination, that his estimate of Hardy’s character was not based upon his general repute among his neighbors, or those acquainted with him. — Dave v. State, 22 Ala. 38; Hadjo v. Gooden, 13 Ala. 718; Wike v. Lightner, 11 S. & R. 199-200.

[9.] The. court below erred in refusing to give the third and fourth charges asked, which are substantially the same. — Best on Presumptions, 282, § 210; Starkie on Ev. (edition of 1860,) 759, marg. 862; Mickle v. State, 27 Ala. 20; State v. Murphy, 6 Ala. 845; Harrington v. State, at the present term; State v. Newman, 7 Ala. ; State v. Marler, 2 Ala. 43. By moral certainty, we understand to have been meant, that kind of certainty which is distinguished from physical or mathematical certainty — which controls and decides the conduct of men in the highest and most important affairs, where the guidance of the senses or of mathematical calculations cannot be had. We think, too, that the context of the third charge requested shows that the word supposition in that charge was not used in the sense of imagination, or to designate an operation of the mind, but points to something supposed; and that the word supposition, in the third charge, is not distinguishable from the word hypothesis in the fourth charge, in the office which it performs. Thus understood, the third charge is, in substance, the same with the fourth; and they both assert nothing more than the proposition, that the jury must from the evidence be convinced to a moral certainty of the defendant’s guilt, in order that they may return a verdict against the accused. Unless the jury 'are morally certain of the defendant’s guilt, it cannot be said that they have no reasonable doubt of Ms guilt. The proposition, therefore, that the jury must be convinced to a moral certainty of the defendant’s guilt, is substantially the same with the proposition, that they must be so convinced beyond a reasonable doubt.

[10.] The fifth charge requested, was properly refused. The jury ought not to be instructed, that they must acquit, if there is any other “ possible hypothesis ” than •that of the defendant’s guilt. A doubt which requires an acquittal, must be “ actual and substantial, not mere possibility, or speculation.” It is not a mere possible doubt, because everything relating to human affairs, and depending upon moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of the jury in that condition, that they cannot- say they feel an abiding conviction to a moral certainty of the charge. — Webster’s case, 5 Cush. 320.

[11.] The corpus delicti being otherwise established, a conviction may be/had upon confessions alone, if they were free and voluntary, and satisfactorily proved.— Wharton’s Am. Crim. Law, § 683.

The judgment of the court below is reversed, and the cause remanded ; ana the prisoner must remain in custody, until discharged by clue course of law.