McGehee v. State , 171 Ala. 19 ( 1911 )

SOMERVILLE, J.

The indictment under which the" defendant was tried and convicted of murder was in two counts. The defendant in due form objected to the indictment on the alleged ground that the first count charged him with the murder of the infant child of Fenie ‘Geldell,” and the second count charged him with the murder of the infant child of Fenie “Yeldell,” thus charging him in one indictment with two distinct and unrelated murders. We have examined the original indictment, and are of the opinion that the mother’s name is written “Yeldell” in both counts, although the capital “Y’s” are of a different form.

But, in any case, the objection is not good, since two offenses by the same person, if of the.same general nature, and subject to the same mode of trial and punishment, may be included in the same indictment.—Cawley v. State, 37 Ala. 152; Sampson v. State, 107 Ala. 76, 18 South. 207. Besides the record' shows that no injury resulted to the defendant.

The evidence for the state tended to show that Fenie Yeldell, the defendant’s stepdaughter, gave birth about 3 o’clock one morning to an illegitimate child, of which he was the father; that defendant and said Fenie’s mother were present; and that defendant promptly took the infant and threw it into a near-by well.

W. W. Graydon testified for the state that on the next day he went to see defendant where he was working in the field, and talked to him about the crime for several hours; that he reasoned and argued with defendant as to defendant’s guilt, and as to his telling him all he knew about it; that defendant said, “I thank you for your advice, but I will be obliged to object;” that defendant further stated that said Fenie had not had a child, and, if she was in that condition, he didn’t know it, and that her trouble was “bone erysipelas in her leg”; that he afterward went to see defendant at the jail, when the defendant voluntarily said, “I didn’t do it. I was there and the baby was born, and Frances (his wife) took it in her coat tail and went out of the door.” The defendant voluntarily took the stand, and testified in his own behalf, in substance, that the child was born in his presence, and that his wife, Frances, carried it out of the house with the declared purpose of destroying it, he the while protesting, and that he had nothing to do with the crime.

By the weight of authority, inculpatory admissions not amounting to a specific confession of guilt require when offered by the state no preliminary proof of their voluntary character. 1 Gr. Ev. (16th Ed.) pp. 346, 347; 6 A. & E. Ency. Law, p. 557; 12 Cyc. 419.

In this state, however, a modified rule has been adopted, and inculpatory admissions in the nature of a confession — that is, directly relating to the fact or circumstances of the crime, and connecting the defendant therewith are subjected to the same rules of admissibility, as direct confessions, and are therefore prima facie involuntary and inadmissible. —Wilson v. State, 84 Ala. 426, 4 South, 383; Shelton v. State, 144 Ala. 106, 42 South. 30. But admissions a,s to purely collateral matters, which are in no sense confessory of guilt, are not within the scope of the rule, and the predicate as for a confession need not be laid.—Pentecost v. State, 107 Ala 81, 92, 18 South. 146; Meadows v. State, 136 Ala. 67, 34 South. 183; Aikin v. State, 35 Ala. 399. And see, also, Love. v. State, 124 Ala. 84, 27 South. 217, where the distinction is suggested.

In the present case, as the record shows, the defendant never did admit his guilt, but expressly denied it. In the first conversation in the field he denied the birth of a child, and all of his statements were in line with this idea. The rule as to confessions cannot be applied to denials, and hence we need not inquire as to the nature or effect of the importunities of the witness Graydon on this occasion.

In the second conversation at the jail, the defendant admitted that a child was born, and that he was present; but he expressly denied his own guilt, and charged it upon his wife. The fact of the defendant’s presence at the time and place of the crime has some inculpatory force; but, considered in connection with his emphatic denial of his guilt, made at the same time, it.cannot be considered as in the nature of a confession, and was not therefore prima facie inadmissible.

Nor could error be predicated of the admisión of these latter statements, even if erroneous, since the defendant voluntarily repeated each one of them on the witness stand; and hence his previous “admissions” served only to confirm his testimony, and to that extent were beneficial to him.

It Avas not error to allow the state to question the defendant as to the statements made by him to Graydon in the field, nor could the result have prejudiced him, since he denied making the statements.

The trial court excluded several questions propounded to the witness Eula McGehee, by which defendant sought to show conduct and statements on the part of Frances McGehee Avhich tended to show that she was herself the culprit.

It is, of course, proper for a defendant to show that another than himself committed the crime with Avhich he was charged, but. such proof is confined to substanfive facts, and. cannot include conduct or admissions, nor even a direct confession, unless these are a part of the res gestae. Levison v. State. 54 Ala. 520, 527. There was no error as to this.

We have examined the other rulings of the trial court upon the evidence, and find no error prejudicial to the defendant, and the judgment of conviction must he affirmed.

Affirmed.

Dowdell, C. J., and Anderson and Sayre, JJ., concur.