Brister v. State , 26 Ala. 107 ( 1855 )

RICE, J.

— The indictment is for a capital offence, and was found in the Circuit Court of Perry, against the plaintiffs in error and divers other slaves. The trial of the plaintiffs in error, on their application, was removed to the Circuit Court of Bibb, under the provisions of sections 3608 to 3616 inclusive of the Code. These plaintiffs have been in actual confinement ever since the indictment was found. When they were brought into the Circuit Court of Bibb for trial, they objected to going to trial, “ on the ground that a copy of the indictment had not been served on them or their counsel two entire days before the trial.” But it being shown to the court that a copy of the copy of the indictment set out in the transcript sent up by the clerk of the Circuit Court of Perry was delivered by the clerk of the Circuit Court of Bibb to the counsel of the plaintiffs in error at the preceding term of the Circuit Court of Bibb, the court overruled the objection, and the plaintiffs in error excepted.

If the ground of objection had been, that a copy of the indictment had not been delivered to them two entire days before the trial, and no other proof of delivery had been adduced than that above shown, we should, without hesitation, have reversed the judgment; for the right is conferred, by section 3576 of the Code, upon every person indicted for a capital offence, if he is in actual confinement, to have a copy of the indictment delivered to him at least two entire days before the day appointed for his trial.—The United States v. Curtis, 4 Mason’s Rep. 232; Smith’s Com. on Stat., pp. 685-6. But our duties as a court for the correction of errors committed by inferior tribunals aro defined by law, and confine our examination to the action of the court below upon the objection as there made. We cannot allow to the prisoners the benefit of an objection they did not make below, and of which they deprived themselves by the objection which they did make.

The rule is, that we can indulge no presumption adverse to the correctness of the action of the primary court, but must make all intendments in its favor not inconsistent with the record.—Morris v. The State, 25 Ala. 57. We cannot, therefore, know or say that the court below would not have sustained the objection, if the ground of objection had been that a copy of the indictment had not been delivered to the prisoners two entire days before the trial.. The form in which the ground of objection was stated — “ that a copy of the indictment had not been served on them or their counsel two entire days before the trial” — was treated by the court below as a waiver of the right of the prisoners to have a copy delivered to them, if a copy had been served on their counsel two entire days before- the trial; and therefore, on proof being made to the court that a copy had been delivered to their counsel by the clerk more than two days before the trial, the court overruled the objection as made by the prisoners. We cannot decide that the court erred in this. JYon constat, the State might have proved a delivery of a copy to the prisoners themselves, more than two days before the trial, if the objection had been put on the ground that a copy had not so been delivered to them. They relieved the State from the necessity of making such proof, by placing their objection on the ground selected by themselves. — 93d Maxim in Law Grammar, p. 76.

When the trial of such a case as this is removed, as this was, section 3615 of the Code provides, that the prisoners “ must be tried on the copy of the indictment ”, certified in the manner directed by section 3613. In such case, the copy so certified becomes so far an original, in the court to which the trial is removed, that a copy of such copy when delivered to the prisoners will have all the effect that a delivery of a copy of the actual original could have.

2. The transcript furnished by the clerk of the Circuit Court of Perry in this case, to the Circuit Court of Bibb, duly certifies a copy of the caption of the grand jury, the indictment, with the endorsements thereon, and all entries relating thereto, and the order for the removal of the trial, and all other orders in the canse, as required by section 8613 of the Code. There was no error in overruling the objection made by the prisoners to going to trial before the Circuit Court of Bibb on said transcript.

3. In Hawkins v. The State, 9 Ala. 137, it was decided, that if there is a joint indictment, and joint, trial of several persons, each may challenge the whole number of jurors to which he would be entitled if tried separately ; and that no man ought to sit as a juror, upon a joint trial, who was not, in the estimation of all the prisoners, indifferent as to all. This decision is. sustained by high authority, and is fully approved by us. There is, therefore, no error in the rulings of the court below as to the challenge of jurors.

4. It has been long settled in England, that in a criminal prosecution, the crown officer is not bound to join in- a demurrer to evidence tendered by the defendant.—1 Chitty’s Grim. Law 623 (mar. page). The right of a prisoner to compel the State to join in a demurrer to evidence is not given by the common law, or by statute, or by the constitution; and we hold, (as the General Court of Virginia has heretofore held,) that neither the State nor the party accused can be permitted, except by mutual consent, to withdraw, by a demurrer to evidence, the trial of the cause from the jury to the court. Doss v. The Commonwealth, 1 Gratt. R. 557.

5. Where the court commits an error by admitting evidence, which, at the time of its admission, was not admissible, such error is cured, if the record affirmatively shows that the evidence so admitted became admissible by reason of other testimony subsequently introduced.— Lawson v. The State, 20 Ala. 65. This principle disposes of the several exceptions taken by the prisoners during their cross-examination of the witness Pool, — provided the confessions of the prisoners (if proved literally) do not appear to us to have been inadmissible confessions; which is a matter we shall examine as soon as we add a few words relating to the exceptions last above named.

The record shows, that, “ on re-examination, said Pool testified, that he had testified to the substance of all that each of said defendants stated on that occasion, but that they may have stated something that he did not recollect.” This was as much as the law exacted, to entitle him as a witness to testify to any voluntary and admissible confessions of tbe prisoners; and all the exceptions taken to the testimony of Pool are unavailing to the prisoners, unless the record shows us that the confessions of the prisoners are such as the law rejects.

6. We how proceed to the consideration of the important subject of confessions. We shall treat it with becoming caution, and shall confine ourselves as much as possible to the language used by what we deem the highest and best authorities on the subject.

In the first place, we shall state the general rules which should govern the judge in deciding upon the competency — * the admissibility of confessions.

Before any confession can be received in evidence, in a criminal case, it must be shown that it was voluntary — that is, that it was made without the appliances of hope or fear, by any other person. Whether it was so made or not, it is for the judge (before he admits it) to determine, upon consideration of the age, condition, situation and character of the prisoner, and the circumstances under which it was made. The material inquiry is, whether the confession has been ob* tained by the influence of hope or fear, applied by a third person to the prisoner’s mind.—1 Greenl. Ev., §219; Wyatt v. The State, 25 Ala. 9; Spence v. The State, 17 ib. 197; Seaborn and Jim v. The State, 20 ib. 15.

But all the foregoing must be taken subject to the qualification necessarily implied from the existence of a certain other well-settled rule, in substance as follows: Although, by the flattery of hope, or by the torture of fear, information has been obtained from the prisoner, yet, if in consequence of such information so obtained from him, the body of the person murdered, or any other material fact, is discovered, it is competent to show that such discovery was made conformably with the information given by the prisoner, and to show that he stated that the thing -would be found at a particular place, and to prove that it was accordingly so found ; for the statement as to his knowledge of the place where the body or other evidence was to be found, being thus confirmed by the fact, is proved not to have been fabricated in consequence of any inducement or influence. And this coincidence between his statement and the thing discovered, is a matter which the law will not withhold from a jury. This rule, and its limitation, will be found in 1 Greenl. Ev., § 231; see, also, 2 Phil. Ev. 249, note 226; 2 Russ, on Crimes, (ed. 1853,) pp. 862-3.

Where promises or threats have been used, yet, if it appear to the satisfaction of the judge that their influence was totally done away before the confession was made, the evidence will be received.—1 Greenl. Ev., § 221.

In the next place, we shall state the rules which should govern the parties and the jury^ after confessions have been admitted by the judge. —

Whenever-a confession is admitted by the' court, the jury must take it: they cannot reject it as incompetent: they are confined to its credibility and effect.

Either party has the right to prove to the jury the saple facts and circumstances which were legally proved to the court when it was called upon to decide the question of competency, and all other circumstances applicable to the- confession or having any legal bearing on its credibility or effect; and if, in view of all the facts and circumstances proved, the jury entertain a reasonable doubt as to the truth of the confession, they may disregard it, in their decision of the case, as being incredible, although they cannot reject it as incompetent. The Commonwealth v. Dillon, 4 Dallas 116; Commonwealth v. Knapp, 10 Pick. 411-496; State v. Guild, 5 Halst. 163; 2 Phil. Ev. 235-240, notes 205 and 207. If they entertain no such reasonable doubt, they ought not to disregard it, although they may believe it was obtained by the appliances of hope or fear to the mind of the prisoner.

The rules above laid down recognize the sphere of the judge and the sphere of the jury as distinct; and, whilst they prevent the jury from invading the province of the judge, they alike prevent him from invading their province. These rules, also, preserve the great safeguard thrown around every person chai’ged with crime — the right to claim at the hands of a jury the benefit of every reasonable doubt arising from the evidence.

7. A. majority of the court are of opinion, that the confessions in this case, under the previous decisions of this court, were improperly received, and that the motion to exclude them from the jury, which says, “ to these confessions, thus obtained, the prisoners objected, and moved to exclude”, &c., must be considered as referring to the preceding proof showing the manner in which the confessions were obtained. They are of opinion, that, although the bill of exceptions fails to set forth all the proof, yet it shows that the decision of the court was predicated upon that which is set out; and 'as enough proof is set out to put the court in error, if there was other proof, it was the duty of the court to set itself right by setting it out.

In my opinion, the prison<SPS"'h'aving objected to the confessions, as being elicited by a question assuming their guilt, viz., “ What part did you take in the murder ?” and this objection having been overruled, and the confessions admitted in evidence, the objection and motion to exclude immediately following — namely, “to these confessions, thus obtained,” &c.,— refers to their being obtained as previously stated by the preceding objection — that is, in answer to what the counsel .supposed to be an improper question assuming their guilt. I think the bill of exceptions fairly admits of this construction, and as it sustains the judgment, (Carroll v. The State, 23 Ala. 28,) numerous decisions of this court require that we should so construe it. I do not think enough is shown in the record to put the court below in error.

8. In this connection, it is proper to say, that it follows from 'the rules above stated, that there was no error in the second charge given by the court, nor in refusing the second charge asked by the prisoners. If this second charge asked had been given, the jury would have been thereby forced to “ exclude their confessions from their consideration entirely ”, although they were convinced beyond a reasonable doubt that the confessions were true, — merely because they could not determine beyond a reasonable doubt that the confessions were made before the slave Bill was whipped.

9. There was some evidence against the slave Archer, who was put upon his trial with the plaintiffs in error. The jury might have believed that part which tended to fix guilt upon him, and have disbelieved that part which tended to exculpate him. There was no error in overruling the several motions of the prisoners, which were made for the purpose of enabling them to use their co-defendant Archer as a witness for them. — Code, § 3594.

10. The bill of exceptions fails to show that there was any one of the thirteen slaves who were living and working with deceased when he was killed, who had not been charged with his murder; and it also fails to show that any of said thirteen slaves, except the plaintiffs in error and Archer, knew where the grave of the deceased was and had pointed it out. The first charge asked by the prisoners assumes that there was evidence of these facts. There was no error in refusing that charge, for it was abstract, and not authorized by the evidence. Waters v. Spencer, 22 Ala. 460; Brooks v. Hildreth, ib. 469; Swallow v. The State, ib. 20; Carey v. Hughes, 17 ib. 388.

11. If the indictment charges that A gave the mortal blow, and that B and C were present, aiding and abetting, &c., but on the evidence it appears that B struck, and that A and C were present, aiding and abetting, &c., this is not a material variance ; for the stroke is adjudged in law to be the stroke of every one of them, and is as strongly the act of the others as if they all had held the weapon, and had all together struck the deceased.—2 Russ, on Crimes, (ed. 1853,) pp. 793-4; 2 Hale’s P. C. 292. Therefore, there was no error in refusing the third, fourth, and fifth charges asked by the prisoners.—Rex v. MacAlly, 9 Rep. 67; Sauchar’s case, ib. 119 a.

The fifth charge asked is liable to another insuperable objection : it assumes it to be law, that although the prisoners may have been parties to the plot to kill the deceased, and although they may have been present, aiding and abetting and encouraging Wash and George in the murder, yet, if Wash and George did the killing, and were not parties to the plot, the prisoners must be totally exonerated from the guilt of the murder, merely because Wash and George were not parties to the plot.

12. We have carefully examined the first, third and fourth charges given by the court, and are satisfied there was no error in giving them. — See the authorities above cited; and Johnson v. The State, 17 Ala. 618; Campbell v. The State, 23 ib. 28; Smith v. The State, 9 ib. 990.

13. The rule of law is undoubted, that one tried for a crime has a right to be present when the jury return their verdict against him. Bat the reason- — -the only reason — of this rulo is, that ho may examine them by the poll, to ascertain if they assent to his conviction.—The State v. Hughes, 2 Ala. 102. When it is clear that the reason of this rule has been fully satisfied, the rule itself is satisfied. When the jury returned with their verdict in this case, and announced that they had agreed, the prisoners were not in court, but in jail. But the court, not knowing this, directed the clerk to receive and read the verdict, and the clerk did read it aloud in the presence of the court and a large number of bystanders. “ The court then observed to the jury, that they were discharged, and the jury started out of the court-room, but had not got out of the bar. It was then discovered, that the prisoners were not in court, and the court immediately stated to the jury, they were not discharged, and ordered the clerk to hand the papers in the cause back to them, and directed the sheriff to bring the prisoners into court. When the prisoners were brought into court, they objected to the court’s receiving the verdict of the jury, on the ground that the verdict had been received by the court and read aloud in their absence, and that they had been deprived of their right to have the jury polled ; but the court overruled the objection, received said verdict, and ordered the same to read in the presence of the said prisoners; which was done accordingly, and said prisoners excepted.”

Upon these facts, we hold that the jury were not discharged, in legal contemplation, by the occurrences which transpired in the absence of the prisoners. The observation of the court to the jury, that they were discharged, was revocable by the court for a time, and was revoked in due time. The revocation was in time, because it was almost instantaneous and whilst the jury, as a body, were still continuing to be in the bar, and in the presence and power of the court. This revocation being in time, we think the court had the power to return the papers in the cause to the jury, and to do what it then proceeded to do. Such a course of proceeding did not deprive the prisoners of the right nor the opportunity to examine the jury by the poll. There is nothing sound in the argument that the right to poll was prejudiced by the fact that the verdict had been previously read aloud in court; for the right to poll the jury cannot be exercised in any case until the verdict has been read aloud in court.—2 Hale’s P. C. 299-300.

14. The improper conduct of a jury, after they have retired to make up a verdict, is not a ground for a motion in arrest of judgment.—McCann v. The State, 9 Sm. & Mar. 465; 1 Waterman’s Archb. Or. Pl. 118-31, and note (2).

15. Misconduct of a jury is a ground for motion for a new trial.— Wharton’s Or. Law 895; Waterman’s Archb. Cr. Pl. 118-19. But it is too firmly settled in this State now to be questioned, that this court cannot revise the action of the Circuit Court refusing a new trial.

Wc have carefully deliberated upon every question presented by the record, and the result is, that while I think the judgment and sentence should be affirmed, my brethren believe there is error in admitting the confessions ; and for that error the judgment and sentence pronounced in the court below must be reversed, and the cause remanded.