Amos v. State , 83 Ala. 1 ( 1887 )

STONE, C. J.

— The defendants were tried on an indictment charging them with murder, and they were convicted of that offense in the second degree. Several witnesses testified to confessions made by the different defendants. Among them was one Ferguson, who aided in arresting them. The confession of which he gave testimony was made while the prisoners were in custody. He was asked, • “What did defendant Tobe Amos say about participating in the killing of William Fuller?” His answer tended to criminate- him. There was objection and exception alike to the question and the answer. The record is silent as to what caused this confession, or called it out. Inducements or fear may have preceded the confession, and there is nothing in the record to show that they were not brought to bear upon him. It has been too long the rule of this court to be now disputed or questioned, that “all confessions are prima facie involuntary and inadmissible, and they can be rendered admissible only by showing that they are voluntary and not constrained.” — Sampson v. State, 54 Ala. 241; Young v. State, 68 Ala. 569; 3 Brick. Dig. 285, §§ 552 et seq. The same objection applies to confessions proved by other witnesses. This error must work a reversal of this case.

There was testimony tending to show that the deceased came to his death by violence inflicted by one or more of the brothers Amos, and that the three were present, aiding, encouraging, or giving countenance to the deed. Whether in fact the violence was done by one, or more than one; whether they went there with a common purpose to do violence, or to see it done, or to aid or encourage the doing of it, or to lend assistance should it become necessary; each and all of these were proper inquiries for the jury, and the testimony justified their submission to that body. So, if, being present without preconcert, they entered into a common illegal purpose, and one or more of them did the deed of violence, and the others were present, aiding, abetting, encouraging, sanctioning, or giving countenance to the unlawful act, or ready to lend assistance if it should become necessary; and the jury, by the proper measure of proof, find either one of these categories to be true, then, if the actor or actors be found guilty, the others are also guilty. Hence it is that, when there is testimony, sufficient'in the opinion of the presiding judge to show a prima facie case of conspiracy, or community of purpose, then the acts of each may be proved on the trial against all, or any number of the alleged conspirators; and if the jury find that there was such' conspiracy, or common purpose, then the act of each participant, done or sanctioned by one in aid of the common purpose, becomes the act of all in its criminating effect. McAnally v. State, 74 Ala. 9; Jordan v. State, 79 Ala. 9; Williams v. State, 81 Ala. 1; Hughes v. State, 75 Ala. 31; Phoenix Ins. Co. v. Moog, 78 Ala. 284.

Under the rules above declared, we do not find the trial court committed any error in the rulings on testimony, except the single one in regard to confessions. And under these rules, charges 10 and 11 asked were too narrow, were misleading, and should not have been given. Charge 14 asked by defendants is not adapted to the case made out by the testimony, is not precisely accurate, and would be very apt to confuse and mislead an ordinary jury. Reasonable should precede the word hypothesis. It was rightly refused.

• In the general charge the court instructed the jury, that the four elements.necessary to constitute murder in the first degree, are all embraced in tbe words formed design. We are not prepared to say tbat there is error in this. — Mitchell v. State, 60 Ala. 26. It would be better, however, to charge .in the language of the statute. — Floyd v. State, 82 Ala. 16.

The Circuit Court did not err in refusing a change of venue.

The questions raised on tbe drawing, summoning and impanelling the jury, will not again arise in the form presented in this record, and we will not consider them.

Beversed and remanded.