Dodson v. State , 86 Ala. 60 ( 1888 )

STONE, C. J.

There is no proof in tbe present record tbat tbe accused was at any time in tbe bands of a mob, or tbat be was menaced by threatening surroundings. Hence we do not think tbe case falls within tbe principle declared in Young v. State, 68 Ala. 569, and Redd v. State, 69 Ala. 255. All tbat was said to tbe prisoner, to induce him to confess, was in response to bis own request for advice; and tbe advice given was, tbat “if be was guilty, it would be best for him to tell all about it; but, if be did not get tbe money, not to own to it; tbat be ought not to own it, if be was not guilty.” We think our former rulings require us to bold, that tbe confessions proved in tbis case were voluntarily made.—Aaron v. State, 37 Ala. 106; King v. State, 40 Ala. 314; Kelly v. State, 72 Ala. 244; 3 Brick. Dig. 286, §§ 562, 571.

We think, too, we might safely place our ruling on tbe ground on which tbe trial court admitted tbis testimony. Tbe defendant himself proved a part of tbe conversation. Tbis opened tbe door, and legalized tbe proof of tbe whole conversation relating to that subject.—3 Brickell’s Digest, 285, §§ 547-8.

While the presumption tbat tbe accused was tbe burglar may not necessarily, and as matter of law, arise from tbe unexplained possession of tbe stolen property, soon after tbe burglarious theft was committed, it has been several times ruled in tbis court, tbat such possession is competent evidence to go to tbe jury on tbe trial for burglary.—Crawford v. State, 44 Ala. 45; Murray v. State, 48 Ala. 675; Neal v. State, 52 Ala. 465; Clark’s Manual, § 889. In Neal's case, it was said, such possession devolves on the possessor the onus of explaining how he acquired it.

The charges asked were rightly refused. The first was calculated to confuse and mislead the jury, as to the quantum of proof necessary to authorize conviction. It was not so framed as to be understood by the average juror. The second charge was clearly incorrect, in that it required the jury to discard from their consideration all evidence of defendant’s confessions, in determining whether or not a burglary had been committed.

Affirmed.