Aaron v. State , 37 Ala. 106 ( 1861 )

STONE, J.

The jurors- Drish .-and Choate were mere tenants and occupants, by yearly letting, of rooms used as sleeping apartments. The section of the Code which defines the qualifications of jurors, declares that it is a good ground of challenge for either -party, “ that the juror has not been a resident householder or freeholder of the county, for one year preceding the time he is sworn.” — § 3583. The term “ householder” is defined by Mr. Webster to mean, “the master or chief of a family;-; one who keeps house with his family.” “ Household: ;.those who dwell under the same roof, and compose a family.” In the case of Brown v. Witt, (19 Wend. 475,.) Bronson, J., said, “ The word householder, in this statute, means the head, master, or person who has the charge of, and provides for a family.” “ A person having and providing for a household, is a householder.” — Griffin v. Sutherland, 14 Barb. Sup. Ct. 456. See, also, Rex v. Inhabitants of Rufford, 8. Mod. 40; Slade’s bail, 1 Chitty, 502; Rex v. Poynder, 1 B. & Cress. 178 ; 3 Petersdorff’s Abr. 103. Householder, in our statute, 'means something moré than 'the 'mere occupant of a room, or house. It implies in its term the idea of a domestic establishment — of the management of -a household. — Sallec v. Waters, 17 Ala. 482 ; Boykin v. Edwards, 21 Ala. 261; 2 Mart. La. 313 ; Burrill’s Law Dictionary, “ Household,” .-Under this rule, Messrs. Drish and Choate were noLcompe-tent jurors; and for the error in putting them upon the prisoner, this case must be reversed.

The questions as to the other two jurors will probably not arise again in the present form.

[2.] Much has been written on the question, what degree of influence will exclude the evidence of confessions in criminal cases? The authorities agree that, before any confession can be received in evidence in a, criminal case, it must be shown that it was voluntary. “ A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, arid therefore it is admitted as proof of the crime to which it refers; but a confession forced from the mind.by the flattery of hope, or by the torture of fear, comes in so questionable a shape, when it is to be considered as the evidence of guilt, that no credit ought to be given to it; .and therefore it is rejected.” — 1 Greenl. Ev. § 219; Mose v. The State, 33 Ala. 211; Roscoe’s Cr. Ev. 39; Wyatt v. The State, 26 Ala. 9; Brister v. The State, 26 Ala. 107, 128; Seaborn v. The State, 20 Ala. 15; Reg. v. Waringham, 2 Lead. Cr. Cas. 167 ; 2 Russ, on Crimes, 827. See, also, 2 Lead. Cr. Cas. 190, 191, and 198, et seq.

In some cases, we think the rule which excludes confessions, as being procured by hopes held out, or fears excited, has been carried to the verge of propriety, if not beyond it. In Reg. v. Drew, (S. C. & P.,) the language used was, “ Do not say anything to prej udice yourself, as what you say I will take down, and it will be used for nr against you at the trial.” We confess we cannot perceive on what principle this confession was excluded. So, in the case of Reg. v. Morton, (2 Mood. & Rob. 514,) where the language was, “ What you are charged with is a very heavy offense, and you must be very careful in making any statement to me or any body else, that may tend to injure you ; but anything you can say in your defense, we shall be ready to hear, or send to assist you.” In each of these cases, the decision was pronounced by Coleridge, J. In the case of Rex v. Upchurch, (1 Moody, 465,) a hope was held out to tbe . prisoner, that a confession would perhaps save her neck ; and we think the ten judges — Lord Dénman, Ch. J. Tindal, Lord Abinger, Ch. B. Park, and others — rightly ruled her confessions inadmissible.

Although we fully approve the sentiments expressed by this -court dn the ease of Wyatt, supra, that, “ in -considering questions of the kind before us, we must bear in mind the dependent relation of the -sla-ve — the absolute dominion under Which he lives,'” (see, also, Clarissa’s case, 11 Ala. 60,) — yet, we agrée with Parke, B., “ that cases on this subject have gone quite far enough, and ought not to be extended.” — Reg. v. Moore, 12 Eng. Law and Eq. 586. In Seaborn's case, the confession was made to the committing magistrate, after he had told the prisoner, (a slave and in custody,). that it was a bad business, or bad situation he Was in; — 20 Ala. 15. The confession Was held admissible. - See, also, Reg. v. Baldry, 2. Lead. Cr. Cases, 164 ; Hawkins v. The State, 7 Missouri, 190.

The substance of what the bailiff said to the prisoner inn this casé Was, that truth was the best policy thatrif he •; did'the act, it was-best to confess it; but, if he did-not do the act; then there was no wish he should say so. Now; iff there lie in this language any inducement offeredto the prisoner to obtain a confession, that inducement w&s -placedi ointhe express condition that he, the prisoner;-'Was-guilty. Hence, to suppose that the prisoner was irifluénéed by the declaration to make the confession, is to-cotíeedé-his-.guilty for, in no other contingency, was he <advised to--' confess The prisoner, if innocent, was warned not- to say'he had -done the deed, in language equally- as strong as th&t “which sought his confession if guilty; Truth was asked for ; and we cannot perceive that any- hope or feariWááúffered to the prisoner, to induce him to make a false confession of guilt. The circuit court did-not err in receiving evidence of the confessions.

[,3,]. The transcript from- the eirCtiit court of Baldwin county presents the following-, s't&te of facts: The regular term-of- the -circuit court-of-that countysat on the second Monday after the fourth Monday in October, and commenced its session on the 8th day of November, 1858. The indictment, .on .which the prisoner was tried, appears to have been returned into court on the 9th day of November, 1858. The transcript from Baldwin states, that a grand jury, composed of certain named persons, was organized in., a Baldwin circuit court, on the second Monday after the fourth Monday in November, 1858, which was the sixth day of December. The transcript from Baldwin circuit court fails to show the organization of the gcpnd jury at the fall term, 185S, unless there is a mistake in the date found in the record. We suppose the date is incorrectly stated.; but, as the record before us fails to show the organization of the grand jury by whom the bill was found, and as we suppose this to be a clerical error, which can be corrected, we will do no more than call .the attention of the circuit court and the parties to it, that before another trial the transcript may be put in proper .form.

[4.] The ruling of the court in reference to the name of (the deceased is substantially correct. We understand the circuit court to have said, in substance, that if the variance in the name be so slight as scarcely,to be perceptible, and the deceased would have been readily known by the name thus called, then such variance .was immaterial. In the case of Ahitbol v. Beniditto, the court.ruled, that Benedetto was idem sonans with Beniditto. — 2 Taunton, 401. See, also, Ward v. The State, 28 Ala. 60; Doe. ex dem. v. Miller, 1 B. & Ald. 699.

Judgment of the circuit court reversed, and cause remanded. Let the prisoner remain in custody, until discharged by due course of law.