Johnson v. State , 59 Ala. 37 ( 1877 )

BB.ICKELL, C. J.—

1. The indictment fails to aver the Christian name of the owner of the money charged to have been stolen, and there is no averment that such name is unknown, excusing the omission.—Morningstar v. The State, 52 Ala. 405. The defect compels a reversal of the judgment.

2. The extra-judicial confession of a prisoner cannot be received in evidence against him, unless it is shown to have been voluntary—free from the influence of hope or fear, applied to the prisoner’s mind by a third person.—1 Green. Ev. § 219; Miller v. State, 40 Ala. 54. "Whether it was made voluntarily, is a question for the. consideration and determination of the court, and is usually shown by negative answers to such questions, as whether the prisoner had been told it would be better for him to confess, or worse for him if he did not; or whether similar language had been addressed to him. The better test is a fair and just consideration of the age, condition, situation and character of the prisoner, and all the circumstances attending the confession. These may satisfy the mind, although the usual preliminary questions are answered in the negative ; that the confession was not voluntary, but sprang from the flattery of hope, or the torture of fear unduly excited. Or, though these questions may not be answered negatively, the circumstances attending the confession, connected with the character of the prisoner, may clearly indicate that it was spontaneous, and not affected by hope or fear springing from the words or conduct of others.

Though the court did not, before receiving the confessions of the prisoner, propound the usual preliminary questions to the witnesses proving them, we think, under the facts shown, and in the absence of all evidence inducing a contrary opinion, the court was justified in considering the confessions as voluntary. The witnesses relate all that occurred at the time, and one of them states that no inducements were held out to the prisoner. The prisoner was under arrest; money corresponding very nearly in amount to the amount charged to have been stolen is found on his person, and he admits it to have been stolen from the person who is said to have lost the money, without being informed that he was charged with a theft from her ; and he proceeds to state the circumstances of the theft. The circumstances indicate as clearly that the confession was voluntary as negative answers to the usual preliminary questions would have indicated, and the City Court was not in error in permitting the confession to go to the jury.

3. The court erred, however, in receiving evidence that Miss McParthan, after the arrest of.the prisoner, identified the money found on the prisoner as hers, and as the. money which had been stolen from her. She was a competent witness, and ought to have been produced to prove these facts. Her verbal declarations, made in the absence of the prisoner, were mere hearsay, and not competent evidence; nor did the fact of her absence from the State at the time of the trial relieve them of the character of hearsay and render them admissible.

4. In Mathews v. State, last term, we held, that an extrajudicial confession, not corroborated by independent evidence of the corpus delicti, would not support a conviction for felony. The City Court erred therefore in refusing the charge requested by the prisoner.

For the errors we have noticed, the judgment must be reversed and the cause remanded; but the prisoner will remain in custody until discharged by due course of law.