Kendall v. State , 65 Ala. 492 ( 1880 )

SOMERYILLE, 3.

— A defendant in a criminal case is never regarded as having been in legal jeopardy, when the indictment is so defective that a judgment rendered on it would be reversed on appeal, and for that reason it is quashed oi\set aside, no matter how far the prosecution or proceedings in the trial may have progressed.— Weston v. State, 63 Ala. 155; Code (1876), § 4819. The verdict of the jury, at the Fall term of the Circuit Court, 1879, failed to find the degree of the crime charged against the defendant; and the conviction, for this reason, could not have been sustained ; and the action of the court in setting aside such verdict, and granting a new trial, was unquestionably correct. Levison v. State, 54 Ala. 520. This action, furthermore, having been taken at the instance of defendant, was an express waiver of the constitutional privilege of not being placed in jeopardy a second time for the same offense. Tested by these principles, the plea of former acquittal was insufficient, and the demurrer to it was properly sustained. — Jeffries v. State, 40 Ala. 381; Hughes v. State, 35 Ala. 347.

The confessions of the prisoner were properly admitted. They are shown to be voluntary, and not to have been induced by promises or threats, nor obtained by the influence of hope or fear applied by a third person to the prisoner’s mind. — Murphy v. State, 63 Ala. 1; Brisler v. State, 26 Ala. 107. Confessions are always considered free and voluntary, which are not shown to have been “ forced from the mind by the flattery of hope, or by the torture of fear.” 1 Greenl. Ev. § 219.

It was not a valid objection to the testimony of the witness Hardy, that he did not recollect all the conversation had with the prisoner at the time she made the confession. It was competent for the witness to state all that he did recollect, and the weight or sufficiency of the evidence could be judged of by the jury. This in no manner militates against the principle, that the whole of what the prisoner said on the subject should be taken together, — a rule which has been well pronounced to be “ the dictate of reason, as well as humanity.” — Pond v. State, 55 Ala. 196; Levison v. State, 54 Ala. 520; 1 Greenl. Ev., § 218.

Let the judgment of the Circuit Court be affirmed.