Washington & Lewis v. State

53 Ala. 29

Opinion

BRICKELL, C. J.

1. The indictment is in the form prescribed by the Code. Its sufficiency, and the power of the legislature to prescribe this, and the other forms of indictment contained in the Code, is not now an open question.

2. Before any confession can be received in evidence in a criminal case, it must be shown to the court that it was voluntary — that is, made without the appliance of hope or fear, by any other person. Whether it was so made or not is for the court to determine upon consideration of the age, condition, situation and character of the prisoner, and the circumstances surrounding him when it was made. Under the authority of Moore v. State, 36 Ala. 211; Aaron v. State, 37 Ala. 106; S. C., 39 Ala. 75; King v. State, 40 Ala. 314; Mountain v. State, ib. 344, the confessions of the prisoner were properly admitted.

3. When a confession is admitted in evidence by the court, it does not lie in the province of the jury to indulge any inquiry into its competency» Their only duty is to determine its credibility and effect. They may entertain a reasonable doubt of its truth, and if they do, should not convict. They cannot reject it as inadmissible. Brister v. State, 26 Ala. 107. The charge requested by the defendant Cato, would in effect have devolved on the jury the duty of inquiring into the admissibility of the confession and revising the action of the court on that question, and it was therefore properly refused. Bob v. State, 32 Ala. 560.

4. The defendant Ctesar was guilty if he made or participated in the assault, with the intent to murder, although he did not know the person assaulted. Knowledge of the person assaulted is not an element of the offense. It is the intent unlawfully and maliciously to kill the person assaulted that constitutes the crime.

There is no error in the record, and the judgment must be affirmed.