Levison v. State , 54 Ala. 520 ( 1875 )

BKICKELL, C. J.

The statute has divided murder into degrees, describing particularly the constituents of the first degree, and declaring a homicide not having these constituents, and which would have been murder at common law, murder in the second degree. — B. C. § 3653. The jury determine the punishment, on conviction of either degree; the first being punishable with death or imprisonment in the penitentiary for life; and the second by hard labor for the county, or imprisonment in the penitentiary, for not less than ten years. — R. C. § 3654. “ When the jury find the defendant guilty, under an indictment for murder, they must ascertain by their verdict whether it is murder in the first or second degree.” — R. C. § 3657. The Penal Code of 1841 first introduced these provisions into the law of the State. — Clay’s Dig. 412, §§ 1, 2. Since their .introduction, it has uniformly been decided, that under an indictment for murder, a judgment of conviction cannot be rendered on a verdict of guilty which does not expressly find the degree of the crime. — • Cobia v. State, 16 Ala: 781; Hall v. Stale, 40 Ala. 698; Robertson v. State, 42 Ala. 509 ; Murphy & Ashford v. State, 45 Ala. 32. In Johnson v. State, 17 Ala. 618, it was held the rule was not varied because the indictment charged the murder was by poisoning. We do not doubt the correctness of these decisions; they are in conformity to the imperative terms of the statute, and no arguments drawn from the objects it is supposed the statute was intended to accomplish can justify a departure from them.. — Whart. Horn. p. 197, § 900; People v. Caldwell, 40 Cal. 137. The error in rendering judgment on the verdict leads necessarily to a reversal, but as the other questions which arise on the record, and which have been very fully argued by counsel, will be presented on another trial, we feel bound to consider them.

Confessions not voluntary, but induced by threats, promises, or the hope of favor, held out to one charged with a criminal offense, are not competent evidence against him. Whether the confession proposed as evidence is ' voluntary or the result of inducements, is a question to be determined by the court, on a just consideration of the circumstances under which it was made, and of the situation and character of the accused. — Brister v. Stale, 26 Ala. 107 ; Aikin v. Stale, 35 Ala. 399; Mose v. State, 36 Ala. 211; Aaron v. State, 37 Ala. 106; S. C. 89 Ala. 75 ; King v. State, 40 Ala. 314. The exclusion of the confession rests on its connection with the inducement; that they stand to each other in the relation of cause and effect. If it is apparent no such connection exists, there is no reason for the exclusion of the confession. State v. Potter, 18 Conn. 166; Mose v. State, 36 Ala. 211. In this last case, C. J. Walker said: “ The principle is, that although a threat or promise may have been made use of, the confession 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.” It is not necessary that a confession should be spontaneous. It is only necessary that it should be voluntary, without the appliances of hope or fear from others. — 1 Green. Ev. § 220. Hence, a confession is admissible, although elicited by questions propounded to the accused, though such questions assume his guilt, (Carroll v. State, 23 Ala. 28) ; or, though obtained by artifice or deception, (Joy on Confessions, 42; King v. State, supra); or, though the accused, was not warned that what he said would be used against him, or that it would be better for him to abstain from confessing. — Joy on Confessions, 45; Seaborn & Jim v. State, 20 Ala. 15. Nor will an “ exhortation to tell the truth,” though accompanied by the .statement made by the officer having custody of the prisoner, that it would be best for him to tell the truth, exclude a confession which may follow it. — Aaron v. State, supra ; King v. State, supra. The theory of the exclusion of a confession is that it was extracted by promises of favor or threats of punishment. "When these have not been employed the confession is admissible, on the presumption, that a person will not make an untrue statement criminating himself, and militating against his own interest.

A confession obtained by threats or promises» being inadmissible, subsequent confessions of the same character are not admissible, unless from the length of time intervening, from proper warning of the consequences, or from other circumstances, there is reason to presume that the hope or fear influencing the first confession is dispelled. — Joy on Confessions, 69; Mose v. State, supra. The confessions of the accused, received in evidence, it is insisted, should have been rejected under this rule. The statement of the rule shows that it is founded on the concurrence of facts, the existence of which were disproved in this case. The facts which must concur to render the rule applicable are the several confessions, the first of which is inadmissible. The first confession is regarded as the parent of the succeeding confessions, and that being improperly obtained, vitiates the second, unless it appears the influence extracting the first has been removed, and all connection between the two dissevered. The rule is not that when influences to procure a confession have been unavailing, a subsequent confession will be excluded because- such influences were employed; or, that such influences having no effect when employed, will be presumed to be the cause of a subsequent confession. — Mose v. State, supra; State v. Potter, 18 Conn. 166; State v. Jones, 54 Mo. 478; Rex v. Gibbons, 1 Carr. & Payne, 97. Without reciting the particular facts found in the record, it is enough to say there was not the slightest connection between the inducernents offered to the accused to confess (if it is admitted they were of a character to exclude any confession following them) and the confessions given in evidence. These inducements were fruitless when made, and no just presumption can be indulged that they lingered in the mind of the accused, producing confessions two months afterwards, to persons utterly unknown to those who had offered the inducements, and which she could not reasonably have supposed would ever be, nor did she desire they should be communicated to them, or to any one having authority over her prosecution, or power to aid her.

The specific and only objection taken in the court below to the admissions of the confessions as evidence, was that it did not appear they were free and voluntary. It is the settled rule of this Court, that a specific objection to evidence is a waiver of all other grounds of objection — an admission that in all. other respects the evidence is legal, and on error, the only inquiry is, whether the objection made ought to have been sustained.— Walker v. Blassingame, 17 Ala. 810. We do not feel bound, therefore, to consider whether the objection made for the first time in this court, that the confession to the witness Norton was so incomplete that it was inadmissible, is well taken or not. But as it may arise in a future trial, it is perhaps proper now to determine it. The confession is said to be incomplete, because the conversation • in which it was made was interrupted. What was the cause of the interruption, whether it was the appearance of some other person, or because one or the other was called away, or by the intervention of some one in authority over them, commanding a cessation of the conversation, does not appear. Nor is the confession in itself incomplete — it is full; that the cause of the imprisonment of the accused was the killing of Mr. Baldwin, with an acknowledgment that she had killed him. Whether the accused would have extended the confession further, or if it had been extended would have qualified, or explained what she had already said, is mere matter of speculation. It is not the fragment, or a disjointed part of a conversation, which is offered in evidence, but the whole conversation' — all that was said, and its exclusion is not authorized because of any supposition that if the interruption had not occurred, she would have said something possibly favorably to herself. The case of Williams v. State, 39 Ala. 532, rests on its own peculiar facts, and has not the least resemblance to the case at bar. The prisoner was interrupted before he had finished his statements by his master, and compelled to desist from continuing them. The rule announced in that case depends for its reasoning largely on the now obsolete relation of master and slave, and certainly is inapplicable to the confessions proved in this case.

There are many mere circumstances indicative of guilt in one accused of crime, and admissible as evidence against him, which cannot and ought not to be received when another is charged with, and on trial for the offense. It is certainly true, that a person accused of crime may show his own innocence by proof of the guilt of another. The evidence of guilt must relate to the res gestee, and not to the declarations or conduct of the party on whom it is attempted to cast suspicion, subsequent to and having no immediate connection with the crime. The confession of a third person, not introduced as a witness, that he was the real criminal, and not the accused, is rejected, from its remoteness and want of connection with the accused, and the -manifest danger of collusion and fabrication. — 1 Best, on Ev. § 91; Smith v. State, 9 Ala. 990. Flight, the demeanor when arrested, stolidity or trepidation,- under accusation, prevarication in answer to inquiries relating to the offense, or to his conduct, the fabrication or suppression of evidence, or previous threats, or antecedent grudges, are all evidentiary facts against the person to whom they are imputable, dependent for their value on a connection with other criminating circumstances. They are evidence against the party to whom they are imputable, because they are his own acts or declarations, and not constituting the guilty act, only pointing to him as the guilty agent, are not evidence for or against another with whom he has no connection. The most inconclusive of the criminating circumstances, that which, not combined with other facts, is of the least probative force is flight. Burrill on Cir. Ev. 469-74. It may be attributable to fear, or to impatience and restlessness, under the duress of imprisonment, or to a consciousness of guilt. Much depends on the character of the mind, temperament and education. One will, with fortitude, endure imprisonment without murmuring, and without an effort to fly, though tortured with the consciousness of crime; while another of a different mental, or moral, or physical organization, conscious of innocence, fretting under unaccustomed restraints, or fearful of the issue of the events leading to his imprisonment, will fly on the first opportunity. Flight is of consequence, in itself, delusive and inconclusive as a criminating fact. It cannot be evidence of guilt when another is accused and on trial. In Crookham v. State, 5 West Va. 510, (S. C. 2 Green. Crim. Law R. 671,) the evidence of the flight soon after the homicide of a person who, just before the killing, had threatened to take the life of the deceased, was offered and rejected as evidence for the prisoner. We are clear in the opinion the flight of another person arrested for the same offense of which the prisoner was accused, was irrelevant and should have been excluded. The charge requested, founded on it, was, therefore, properly refused.

It is often a matter of great delicacy and extreme difficulty, to determine, in a criminal cause, whether a particular fact, not bearing directly on the issue involved, can be received as evidence. The rule is clear and well defined that' facts and circumstances, which, when proved, are incapable of affording any reasonable presumption or inference in regard to the material fact or inquiry involved, are not admissible as evidence. The difficulty lies in its application. A single fact, standing by itself, may seem of insignificance, having a remote, if any, connection with the material facts, yet may tend to support evidence, the competency of which is indisputable, or may form a link in a chain of circumstances amounting to conclusive proof.--- Campbell v. State, 17 Ala. 69. The conduct or demeanor of a party at or about the time of his arrest, will be received as evidence.' — Liles v. State, 30 Ala. 24; Roscoe’s Crim. Ev. 53. Observations then made to him, relating to the offense, or to the arrest, to which he gives no answer, or an evasive ieply, are also received. Much depends on the particular circumstances of each case. The confessions of the accused implicate Turner as her associate in the crime, indeed, as the most criminal agent, morally, in its commission. Evidence was offered of the fact that he had visited the accused on the night of her arrest, and had left her without indicating any purpose to return on that night; but did return in great haste before the arrest was made, and finding her in bed, had a conversation with her in a whisper, the only words of which distinguishable by the witness, were his declaration, “ lie still and keep your damned mouth shut,” and then left hurriedly, returning about an hour afterwards, with the officers who made the arrest. He had information of the purpose to make the arrest, before it was made; but whether he obtained it after his first and before his second visit to the accused, is not shown. If, as the confessions of the accused indicate, he was not only her associate, but the originator of the crime, naturally, on hearing of the intention to arrest he? for the offense, he would seek a conversation with her before the arrest was made, and that conversation he would seek to conduct so that it could not be heard by others. The subject of the conversation would be the anticipated arrest, and entreaty, persuasion, threats or commands would be employed to keep her from purposely or by inadvertence disclosing their mutual guilt. Considering the circumstances, we cannot say this evidence had not a relevancy to the main and material fact. If these repeated and hasty visits, and this whispered conversation, and earnest command to silence, were not caused by the anticipated arrest, and referred to any other matter than the cause of the arrest, or if the command to silence was because of an appretension that the accused, though innocent, might unwarily involve herself by her conversations with others, the facts could have been shown, and the evidence deprived of all injurious tendency.

The second charge requested is too involved and indeterminate for us to ascertain with any certainty the proposition it is intended to assert The court properly refused to give it.

For the error in rendering judgment on the insufficient verdict, the judgment must be reversed and the cause remanded. The prisoner will remain in custody until discharged by due course of law.