Murdock v. State , 68 Ala. 567 ( 1881 )

•SOMERVILLE, J.

— The indictment, in this case, charges the defendant with the crime of burglary, alleged to have been perpetrated by breaking into and entering the dwelling-house of one Dick Jackson, with intent to steal. The fact of the breaking and entering was circumstantially proved, and also the loss of certain articles of personal property, which were very soon afterwards found on premises occupied by defendant, and two or three other persons.

The defendant was, thereupon, arrested by warrant sued out before a magistrate by one Polly Jackson, who, being a witness, on the trial in the City Court, testified, among other things, as follows ; “ That when the preliminary trial was about to be had, defendant called her aside and told her if she would dismiss the prosecution, he would try to get her things for her ; that from'a description she had given of them, he thought he knew where they ivere; and she then promised him that she would dismiss the prosecution.” The court allowed this evidence to be introduced against the objection of the defendant that the statement was not voluntary, and to this ruling of the court an exception was taken.

It is certainly true, that, before any confession can be received in evidence in criminal case, it must be shown to be voluntary. And, had the defendant been induced to make any statement in the nature of -a confession, which was “forced from his mind by the flattery of hope or by the torture of fear,” it should have been rejected as unworthy of credit. I Greenl. Ev. § 219; Bonner v. State, 55 Ala. 242. A promise to dismiss the prosecution would very clearly have been an inducement of. this character, and would have vitiated all confessions made on the strength of it, or elicited by its influence. But while such a promise is proved to have been made, the statement was not induced by it, but was antecedent to, and, therefore, of necessity uninfluenced by it. This evidence, we think, was properly admitted.

It was not competetít to prove, against tbe timely objection of the defendant, that he refused to allow the witness to search his house without a search warrant. This was the assertion of a valuable and the undoubted constitutional right. Const. 1875, Art. 1, § 6; Code, 1876, §§ 4006 et seq. Under no possible circumstances can the mere assertion of such a right be construed into a criminative circumstance. If the imputation of guilt could be so inferred, the claim of constitutional rights would be dangerously prolific of legal wrongs, and thus become a snare, if not a mockery. We know of no rule of law tolerating a principle so contrary to reason or unjust in its sequence.

The charge given by the court below was erroneous. It authorized the jury to infer that the relationship of-husband and wife existed between the witness, Polly Jackson, and Dick Jackson, at the time of the alleged burglary, because it was proved to exist at the time of the trial. When the existence of a personal relation, or a state of things continuous in its nature, is once established by proof, the law presumes that such status continues to exist as before, until the contrary is proved, or until a different presumption is raised from the nature of the subject in question.—1 Greenl. Ev. § 41; 2 Whart. Law Ev. § 1288. But this presumption can not be permitted to operate retrospectively so as to infer the prior existence of coverture, or other like relationship, from proof of its present existence. It may be that the parties contracted the relationship within a few days before the trial. There is no evidence from which the jury could lawfully infer that they were husband and wife at the time of the alleged burglary.

Reversed and remanded.