Gregg v. State , 106 Ala. 44 ( 1894 )

HARALSON, J.

— 1. Section 13 of the act of February 28th, 1887, as found in the Criminal Code, pp. 132-5, as amended by the act of February 28th, 1889, (Acts, 1888-89, p. 77), provides, that upon the trialof a capital case, the defendant shall be entitled to twenty-one peremptory challenges, and the State to fourteen, and when two or more defendants in such a case are on trial jointly, each defendant shall be entitled to one-half of the peremptory challenges allowed by the act.

The defendants in this case were tried jointly'. While selecting the jury', the defendant, Julia Gregg, separately' challenged, peremptorily', eleven jurors, each of whom had been accepted by'the State. Another juror was drawn and duly' examined and pronounced qualified by the court, and was accepted byr the State. Defendant, Julia, then proposed to challenge said juror peremptorily for herself, claiming that each defendant was entitled to twenty-one peremptory' .challenges; and so, she challenged each other juror, found qualified and accepted by the State, until the jury was completed reserving an exception each time, to the refusal of the court to allow her to do so. The contention is, that one-half of twenty-one being ten and a half, tlie defendant was entitled to that number, no less and no more, and, the statute being impossible of execution, the general statute in the Code allowing twenty-one peremptory challenges prevailed. But, that is too technical. The court, in the execution of the law, allowed defendant eleven challenges and that, certainly, gave her ten and a half, and a half besides, which she accepted, and for which she cannot complain. If in the execution of this statute, the court allows the defendant eleven peremptory challenges, it complies with the law, and to refuse less, by allowing only ten, would be an error. Any other construction would be so technical and wanting in good reason as not to admit of adoption.

2. Walter E. Sanderson, examined as a witness, stated that he and three other negro men, hearing of the rumored birth and destruction of the infant of Martha Gregg, went to the house where Martha and her mother, Julia, the defendant, and Nancy Gregg, the grandmother of Martha, lived, to investigate the matter. There can be no question, that they appeared to Julia and Nancy as clothed with some authority to institute the investigation. There was nothing wrong in their mission, but their coming must have aroused apprehensions and fears in the minds of the defendants, and have presented the appearance of authority to them. They informed defendants of their mission, told them they had heard that Martha had had a child, and it had been done away with. They denied that any child had been born. Sanderson and those with him still insisted, that a child had been born there aud made away with, and upon their telling them what had been done with it. After their repeated denials of such fact, Sanderson testified he said to them : 4 ‘Tell us the truth about it all, and that will be the last of it.” The defendant Julia, shortly after that, said: '“Yes, Martha did have a baby, and I burned it up.” The defendant, Julia, moved to exclude this evidence, which the court refused to do, and defendant excepted. In this the court erred. The confession was of material facts tending strongly to show' -the guilt of the defendant. Wind, the witness, — speaking for the company with him, — said to defendant, held out to her the inducement, that if she would tell all about it, that would be ibe last of it. What did she understand by the promise? Certainly, that if she told, they would not tell on her, and there would be no prosecution for the offense. Here was inducement, advantage held out to her by these persons, to make this confession. It was patently inadmissible, and the objection interposed to it should have-been sustained. 1 Greenl. Ev., § 220; Beckham v. The State, 100 Ala. 15 ; 3 Brick. Dig. 285, § 552.

The witness further testified, that the defendant after-wards told them, after much urging, that she had buried the child, and she carried them first, to the graveyard, where she said she had buried it, but not finding it there,, afterwards carried them to a thicket, and pointed to a spot, where after search, they found the box containing the body of a newly born male child. Decisions are not wanting, holding that when confessions have been illegally admitted, under the influences of threats and promises, they are rendered admissible and will support a conviction, if attended by extraneous facts corroborating their truth. But that rule lias received modification to the extent, that if the confessions are held not to be-admissible because not voluntarily made, “Yet, if they are attended by extraneous facts, which show they are-true, any such facts which may be thus developed, and whicli go to prove- the existence of the crime of which defendant was suspected, will be received as testimony: e. g., where the party thus confessing points out or tells where the stolen property is ; or, when he states where-the deceased was buried, or gives a clue to .other evidence which proves the case.” — 1 Wharton’s Am. Cr. Law,. § 695; 1 Greenl. Ev., §§ 231-2. “It is not the entire-confession, however, which may be received ; it is only so much of it as relates strictly to the material fact discovered, that may be given in evidence ; for the fact discovered has a reasonable tendency to prove that part of the confession, and to exclude the idea of fabrication under undue influence.” — Murphy v. The State, 63 Ala. 4; Banks v. The State, 84 Ala. 430; Lowe v. The State, 88 Ala. 9.

3. The witness Martha was allowed to testify, that while pregnant with the child, her mother, the defendant, asked her if she was pregnant, and told her if it was so, she would nearly kill her. There was no error in this. It tended to show her motive for destroying the child.

4. Tlie charge asked by defendant and refused is precisely the charge which, in Washington v. The State, 58 Ala. 355, was said to be free from error, and should have been given.

For the errors pointed out, the case must be reversed.

Reversed and remanded.