McAlpine v. State , 117 Ala. 93 ( 1897 )

HARALSON, J.

1. The witness for the State, Alice Madison, was asked, if she had had any conversation with defendant, Lizzie White, within the last twelve months ; when and where it was ; who, if any one was present; the circumstances of the conversation, and what was said? The defendants’ counsel objected, on the ground that both defendants were not shown to be present, and because it called for evidence that was illegal, irrelevant and incompetent. The court stated to the jury, that any such conversation would be treated in its effect as to Lizzie White alone, and overruled the objection. The witness answered stating, that Lizzie White, at the well, between her own and the witness’ house, in February, 1897, had a conversation with her, in which Lizzie told her ‘ ‘that she did not have to work; that her fellow, Will McAlpine, kept her up ; that Will was her fellow, and she was Will’s woman.” The defendant then moved to exclude the answer, on the grounds, that Will McAlpine was not present at the conversation, and it -was not admissible as to him, and because the evidence was incompetent, irrelevant and illegal, and the court overruled the motion.

The answer was properly limited by the court to Lizzie White, to let it in as to her, if not objectionable on other grounds.

It has been repeatedly held, that all confessions are prima facie involuntary, and in order to render them admissible it must be shown prima facie that they were voluntarily made, without the appliances of hope or fear, without extraneous inducement or pressure in either of those directions from other persons ; and this is a condition precedent to their admissibility. Otherwise they are prima facie involuntary and illegal. A mere general objection to the evidence, or that the question propounded calls for illegal and incompetent evidence, is sufficient for their exclusion, in the absence of a proper predicate for their introduction. — Bradford v. The State, 104 Ala. 68; Beckham v. The State, 100 Ala. 15; Gregg v. The State, 106 Ala. 44; Redd v. The State, 69 Ala. 255, 259; Young v. The State, 68 Ala. 570, 575.

No proper predicate was laid for the introduction of the evidence, and the court should not have admitted it. This disposes of other similar confessions deposed to by other witnesses, as to each of the defendants.

2. On cross-examination of the State's witness, O. Bishop, the witness was made to answer, that he had commenced this prosecution, and had had the parties arrested. The evidence was called out to discredit the witness, by showing his feeling against defendants. In the rebutting examination, the solicitor asked the witness, to “state whether W. T. Thornton, the justice of the peace, advised you to commence this prosecution against defendants,” and .he was allowed, against the objection of the defendants, — that the State could not prove the motive of the witness in commencing the prosecution etc., — to state that he did. The objection was untenable. It was proper for the witness to testify on the examination in rebuttal to this fact, as tending to rebut the discredit sought to be placed o.n his evidence by defendant. — Johnson v. The State, 100 Ala. 55; Campbell v. The State, 23 Ala. 76.

3. The witness, Andrew Headen, was allowed to state, “for what it was worth,” — as the court ruled, — “that he had never heard anybody discuss C. Bishop’s character, till this case came up for trial, and couldn’t tell who he had heard discuss it; that his opinion of C. Bishop’s character was based both on what other people thought of him, and what he knew-of him himself; that he had heard that he, C. Bishop, was a fussy old man.” He did not state that he knew his general character and what it was. This was a method of proving character unsanctioned by any rule on the subject. If the evidence was not allowable for that purpose, it was not for any other, and should Have been rejected.

4. The evidence of Thornton, the justice of the peace who advised C. Bishop that he could sue out a warrant against defendants, was not improper, in that it tended to sustain the motive of the witness, and the character of his evidence, sought to be discredited by defendants, by proving that he was their prosecutor.

It was error to allow the State, on cross-examination of defendants’ witness, Adams, to ask him if he was not on the bond of Joe Gantt, indicted in the same court with defendants, for miscegenation with Jennie White, the mother of the defendant, Lizzie White. The evidence was too remote to show a discrediting bias on the part of the witness.

5. The defendant proved by Dee Turner that he collected rents from Jennie White, shown to be the mother of Lizzie, living in'the same house with her. The State was allowed on the cross to ask the witness, “How much rent did Lizzie and Jennie pay?’’ If it was proper to prove by the witness that he collected rents out of Jennie, there was no error in allowing the State to inquire of him how much he collected out of her, even if it was not proper as to how much he collected out of Lizzie ; but the objection did not extend that far. It related to the answer of the witness as a whole. We may add, however, that we fail to see the relevancy of this evidence as to rents, to any issue in the cause.

6. Squash Beavers testified that he owned the houses that defendants lived in, and also the one in which Alice Madison lived. Alice had been examined for the State, and this witness, Beavers, examined by defendants, had just testified that her character for truth and veracity in the community where she lived was bad, and he would not believe her on oath. The State was allowed to ask him, against defendants’ proper objection, “Did Alice Madison pay her rent?’’ What her payment of her rent had to do with the issues, we have been unable to discover. Such a collateral matter, not affecting the issues, should not have been allowed in the case. The same may be said of the questions which followed, by the solicitor to this witness : “State if you rented the house to Lizzie and Jennie White?” ; and “Who rented the house to Lizzie and Jennie White?” Answers were given, to the first, that he did not, and to the second, that C. Bishop rented it to them.

7. N. Lewis for the State, in rebuttal, testified that he knew the general character of C. Bishop, a witness for the State, and that it was good. The fact that he had heard people discuss his character but could not tell who they were ; that he had heard people say that “he was a before-tlie-war negro,” and that his estimate of his character was based on what he had heard others say, and what he knew himself, did not render his evidence as to his good character inadmissible. — Holmes v. The State, 88 Ala. 26.

8. There is nothing in the point raised against the verdict. The juror in reply to the question propounded by the court, answered that he acquiesced in and agreed to the verdict. That was sufficient to show that it was his verdict.

9. Charges A, B, C and D asked by defendants were properly refused. Charge A was a proper instruction, but the court at the request of defendant gave twenty-five written charges, more than half of which related specially to living in adultery, covering as it seems every possible phase of it, some of them the same in substance and legal effect as charge A. The court was not bound to repeat a charge already given at defendant’s request. The fact that' .the charge contained the hypothesized statement, “that if the jury believed from the evidence that Will McAlpine lived with his mother near the college, and Lizzie lived with her mother in Needmore,” was of no material effect, distinguishing it in substance from other charges that had been given for defendants to the same substantial effect, which did not contain that statement. It did not matter where the local habitations of the parties were; for, the controlling question in this case was, without any special reference to that matter, whether the parties lived together in adultery. Moreover, the places of their respective habitations was not a matter, as to ’which the evidence was in conflict, for there was no dispute as to where they each lived, and all the. charges given at the request of defendant, were given with reference to this undisputed fact.

10. Admitting all that is hypothesized in charges B, C and D, the jury might nevertheless have found the defendants guilty of living in adultery. They each ignored any reference to any intention of the parties for a continuance of the hypothesized illicit acts ; for, if they lived together in adultery for a single day, intending to continue the illicit connection, a conviction might have been had. — Linton v. The State, 88 Ala. 216; Walker v. The State, 104 Ala. 56. The charges, moreover, were misleading, invasive of the province of the .jury, and faulty generally.

For the errors indicated, the judgment of the court below is reversed and the cause remanded.

•Reversed and remanded.