Minirth v. State , 270 Ala. 228 ( 1960 )

117 So. 2d 360 (1960)

John F. MINIRTH
v.
STATE of Alabama.

7 Div. 490.

Supreme Court of Alabama.

January 21, 1960.

Frank B. Embry, Pell City, for petitioner.

MacDonald Gallion, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., opposed.

MERRILL, Justice.

Minirth was convicted of possessing a still, and the judgment of conviction was affirmed by the Court of Appeals.

The only point argued in this court on petition for writ of certiorari is the sufficiency of the predicate for Minirth's confession that "the still was his and Mig Mayner's" (the other man arrested at the still when raided by two officers).

As shown by the opinion of the Court of Appeals, each of the officers was questioned as to the voluntariness of the confession but were not asked if anyone in their presence made any threats, promises, etc. The predicate dealt only with the acts or declarations of the witness.

The Court of Appeals recognized that that this type of questioning was not sufficient under Carr v. State, 17 Ala.App. 539, 85 So. 852, but held:

"It is clear that the two officers and the two prisoners were the only persons present. We think it would be here illogical and contrary to experience to expect that any inducement moving Minirth could have come from his fellow captive, Mig Mayner. By bringing out the absence of menaces or promises from the Federal agents seriatim, the solicitor closed the circle."

We wish to amplify the second sentence by adding "in view of the fact that Minirth had stated that the still belonged to both of them." Had he claimed sole ownership in himself, it could have been as the result of a threat or promise from "his fellow captive, Mig Mayner," but since his confession included, and did not exclude, Mayner, we think it reasonable to construe the record as showing that the confession did not result from any undue influence on the part of Mayner.

Writ denied.

LAWSON, STAKELY and COLEMAN, JJ., concur.