Perkins v. State , 60 Ala. 7 ( 1877 )

MANNING, J.

The bill of exceptions in this cause does not undertake to set forth the evidence, further than was thought necessary to present the questions which were argued here. The testimony of the jailer and of Sol Brown is not of any confessions made by the prisoner, but of his taking the hand of the jailer, and offering to tell all he knew about the killing of Boberts, if the jailer would promise that he, the prisoner, should not be hurt therefor, and of like offers to tell the same to Brown, if Brown would promise never to tell anybody else; and both of the witnesses having refused to make such a promise, the prisoner said nothing more to them on that subject. No inducement or influence, proceeding from either of the witnesses, or any other person, caused the prisoner to say or do anything, of which evidence was given. This evidence was, therefore, not subject to exclusion, upon the ground that the prisoner did not act freely; and it was admissible to show circumstances which, connected with other circumstances and facts, might properly be considered by the jury, in their endeavors to determine whether the prisoner was guilty or not of the crime of which he was accused.

Suspicious conduct on the part of a person, who was in a situation in which he might have killed another, is frequently allowed to be proved in prosecutions for homicide. Of course, jurors should be careful not to attach to such circumstances too much importance, and be watchful over themselves, to avoid being led to conclusions which those circumstances do not very forcibly conduce to support. There is a just caution against too much facility in this, contained in the opinion in Lyles v. State, 30 Ala. 24.

2. In Lewis v. State (51 Ala. 1), it was held, that an oath like the one administered in this cause — “to well and truly try, and a true deliverance make, between the people of the State of Alabama and the prisoner at the bar” — was “not substantially the oath required and prescribed by statute,” and was, therefore, insufficient. It is pointed out in the opinion that the constitution commands that “all prosecutions shall be carried on in the name, and by the authority, of ‘ The State of Alabama,’ and conclude against the peace and dignity of the same,” ’ and are in fact so instituted and conducted; and that when, exceeding the particularity required by the statute, the jury are sworn to try an issue joined between -“the people of the State of Alabama” on one side, and the accused on the other, the oath is vitiated, by being restricted to a prosecution different from that in which the verdict is rendered.

Let the judgment be reversed, and the causé be remanded. The prisoner must remain in custody, until discharged by due course of law.