Duncan v. State

scope authority, regulation of his and that the acci- employer, rule or of which Boatright killed out of knowledge.” dent which arose employee has employment, the and in the course of his provides further that if section ample support finding evidence is employer ground that defends on Boatright that at the time trial court way, the injury arose in the above-stated knowingly violating a was killed he was employer proof on the burden of shall be rule, regulation of his reasonable or order to establish such defense. employer willful mis- which constituted 254 and conduct of the deceased. Sections 26, Code Alabama Section Title 1940. Title Code of Alabama pertinent part: provides, in brought under “In all cases pretermitted the consideration article, a defense: it shall not be appellee’s our motion to dismiss because affirmance of the case renders it unneces- employee negligent, was “That sary. except appear also unless and shall wilful, that negligence

that such was There is no sort of doubt but wilful guilty of employee such necessary every trial court found fact misconduct as defined section below judgment of the court sustain the title.” of this is, be, judgment and the is due to affirmed. Appellant argues that the facts found

the trial court are based on Affirmed. 433 of Title was inadmissible under Sec. 1940, commonly known Code of Alabama LAWSON, GOODWYN and COLE- argument This as the dead-man’s statute. MAN, JJ., concur. premise is based the evidence in-

concerning giving of the order or Boatright

struction Mr. Wheelless to again fly plane until he

not to “solo” instruc- dual-control

had received further inadmissible,

tion and was admitted timely objection appellant.

over was admissible The evidence So.2d simple that an action under the reason DUNCAN, Sr., James Milford purely Compensation Laws is Workmen’s

statutory of the deceased and the estate the suit. interested in the results of of Alabama. STATE Atlantic Code Sec. Title 7 Div. 614. Flowers, Line Coast R. v.Co. by appellant argued It So.2d 21. is also Court Alabama. advisory, merely that said instruction was only, persuasive and did

or meant June order, instruc dignity of an not arise to the regulation by employer. Suffice

tion or contrary found say, that the trial court

it to ample evi argument and there is

to this support finding.

dence argument

Assuming for the sake of employee performing

only employer line and for the

services

147 Flowers, Gen., Atty.

Richmond M. Anderson, III, Atty. Gen., Mark W. Asst. for the State. McCord,

Roy S. Bone and D. Rowan Smith, Gadsden, appellant.

Hugh H. LAWSON, quash in the motion to are raised in the Justice. demurrer. Duncan, Appellant, Sr., Milford James degree murder in the first indicted for An indictment for murder in com County. by grand jury of Etowah He pliance Form Title Code- § counsel, prior employ unable so 1940, is State, sufficient. Noles v. 24 Ala. court, arraignment pro- the trial under the Aiken v. 35 Ala. 399. 1940, ap- visions of Title Code § pointed experienced and able criminal trial The against indictment Duncan- lawyers County of the Etowah Bar compliance is in substantial with that form represent him. except charges, alternative,, the means which the offense was com arraignment, Duncan, by Before motion pertinent, mitted. As indictment quash by demurrer, questioned “ * * * charges that Duncan unlawfully sufficiency of the indictment on various and with aforethought malice Sandy killed grounds. Ann Scott placing her in a branch or a Upon arraignment, pleaded * * * whereby lake she was drowned. guilty guilty by insanity. and not reason of Rogers 23 So. attorneys Court-appointed present The 82, we said: arraignment. at Hamilton of Ala- v. State bama, 157, L.Ed.2d “ * * * When the means which an offense was charged committed [are] alternative, charge each alternative jury guilty found Duncan of murder must describe the means with the same degree imposed .in the first the death definiteness particularity as would penalty. Judgment and were in sentence required have been charge had the accord with the verdict. separately made * separate in a count. *” * appeal The here is under the automatic (117 83) 23 So. appeal applicable law to cases where the appellant Counsel for insist that in imposed. 249, ap- death sentence is Act dictment insofar it charges that Duncan proved 24, 1943, General Acts June Sandy killed by placing Ann Scott her in a p. 217, carried in the 1955 Cumulative whereby drowned, “branch” she was is in Four, Pocket Part Official Vol. sufficient in that the word “branch” could Code, Recompiled and in the 1958 Code as limb, off-shoot, have reference to “a or seq. Title 382(1) et § ramification; part body member or aof system; a local operating division of a attorneys represented The who Duncan in house; descent; business family a line of appointed trial court repre- were group.” a But the word “branch” has also sent appeal. him on this They filed a stream; been defined as “a small a creek.” on argued brief his behalf and the case at Danielley City Princeton, of W.Va. time of submission. Grupe (Tex.Civ. 167 S.E. Lee v. App.), 223 S.W.2d 548. In Dardenne Real INDICTMENT ty Co. (St. App., v. Abeken Louis Ct. of quash The pointed motion to out Mo.), Mo.App. 945, 106 S.W.2d alleged certain in defects the indictment. is, it was said: “That to constitute a branch It was overruled without error in that the or stream there must something more proper reaching mode of defects in an in than a mere drainage, by surface swelled by by dictment is demurrer and not motion melting snow, running freshets and and oc quash. Boulo v. 49 Ala. Dan casionally ravines, in hollows and which are iel v. dry.” So. 22. More generally is, course, It a matter over, all alleged of the pointed defects out knowledge common that the word “branch” baby. replied, you stream of the Walker do a small “What frequently used describe 'is charges baby begun mean.” A search for the was indictment and when an of water by plac- person after the motel notified that the office was drowned a defendant sufficiently baby missing. The of the motel a “branch” owner him or her ing by got Squad” which means touch with the “Rescue the accused advises organization To representatives deceased. he killed the soon claims the State deprive began life appeared searching him of person is to on scene drown liquid. operations. The or other water immersion effect, charges here, the de- indictment Dewey Colvard, the of Etowah Sheriff Sandy Ann taking life of with fendant County, baby notified that the miss- branch, or immersing her in Scott deputies he sent of his some “branch” The word of water. stream joined 'they motor court search. “drowned” the word when considered definitions any of -the relate to could not Colvard reached the scene at Sheriff appel- quoted above we have morning A.M. 24th about 1:45 on brief. lant’s February, joined He search. prop- indictment was demurrer to Walker, Ross, Scott, The baby’s Mrs. moth- erly er, overruled. and Miss Dixon carried to were office, they Sheriff’s remained until where

FACTS Sunday, about 9:00 24th of A.M. on February. 23, 1963, Dun- February Saturday, On Motel, employee Lasseter’s an can was deputies Colvard and one of his Guntersville on the located which was entered the room or cabin at the motel County. He lived-in Highway in Etowah where Duncan lived at about 3:00 A.M. on work His motel. the rooms one of February. morning of the 24th handy general of a have bеen seems to they manner in which entrance gained (cid:127) rooms, looking man, cleaning appear. Duncan’s room does not menial other performing- premises and was awakened and talked to the Sheriff tasks. deputy. deputy and his The Sheriff and L. evening looking baby. They About six o’clock for the looked J. Margaret Scott Ross, Mrs. Walker, adjoining Elbert around the and the room occupancy of shower, began flashlight using Dixon first a and and Miss after- Jackie was. which Motel light the Lasseter wards the overhead was turned on. room lived. Duncan in which on situated next to that The Sheriff saw a lot of clothes the floor eighteen- any baby them Mrs. Scott’s but did not see He did With clothes. Scott. baby girl, Sandy “pair pants” Ann see a of on month-old coveralls-—overall room, but floor, the registered for the After Walker alone which he did not examine. and wife talking Mrs. be Walker’s he finished with Duncan the Scott claimed to Sheriff deputy Ross. lights be the of turned off the and his Miss Dixon claimed to wife and he left. There is the no evidence that Sheriff night At of about ten o’clock on deputy or on that his had a search warrant 23, 1963, September and the two Ross occasion. get food. women left the motel some baby left, they and the When Walker Shortly morning after 6:00 on asleep the two in the same bed. Ross and 24, 1963, body Sunday, February When an hour. gone women were about not baby face down in a lake was found asleep. they The returned, Walker still Pictures far distant from the motel. baby was not the room. baby were taken before she was removed pictures from the lake. These were admit- Ross and the two awakened women inquired evidence. and ted in Walker as the whereabouts- way arrest, On home with Reynolds funeral the Duncan’s testified that baby’s body, Colvard called for the Duncan Sheriff arrested on that occasion. McVay, Reynolds assistance of Mr. William T. testified that he “instructed him. toxicologist, get said, in Gadsden State who arrived dressed” and also “I asked and, him, examining the dressed, within a short time on, when he to come I that body home, that the funeral determined wanted him go House,, at down the Court drowning. death was Mr. Mc- caused the Sheriff wanted to talk him.”' Vay pictures at took of the deceased Duncan was a search was- dressing .While home, funeral ‍​​​​‌​‌‌‌‌‌​‌​​‌​‌​​​‌‌​‌​‌​‌‌​​‌‌‌​​‌‌‌​​‌‌​‌‌​‍which were admitted evi- made of his depu- room and shower. The pair dence. ties found a jeans” of “blue on the floor They near or under Duncan’s bed. Sheriff concluded his questioning Colvard were wet for a distance of ten to twelve- Ross, Walker, Mrs. Scott Miss and inches from the legs- bottom of the trouser Dixon at around or ten his office nine and red mud was on the bottom of February morning, o’clock 24th. Sunday A large trousers. red stain onwas or near The record indicate that does officers, fly jeans.” “blue The persons questioning of those revealed jeans” took possession the “blue their into information tended Dun- to connect they and were admitted in evidence in con- crime, yet can with the commission of nection with the of the toxicolo- immediately questioning, after the gist was, to the effect that the stain in- red Deputy Reynolds sent Colvard Chief and opinion, caused human blood deputies three other to the motel. On direct type same as the deceased’s blood. Duncan examination Sheriff Colvard stated that admitted to the jeans”' officers that the “blue deputiеs sent the with an order motel were his “they he- were trousers in, “brought picked up.” previous night, had used the searching- On cross-examination he was asked child, wearing them following question gave following previous night.” deputies, The Dun- while answer: present, can was removed hairs- human sheet,, from a wet towel and from a bed then, “Q. following Now morning, which hairs were admitted in evidence you back, I believe that came in connection with the testi- toxicplogist’s you your Deputies sent out mony to the effect that the hairs were of the have him arrested —Duncan. type same texture and as those which he Yes, “A. sir.” removed from the head the deceased.. deputies possession, also took into their Reynolds deputies other arrived shaving two lotion ad- bottles which were at Duncan’s room about eleven o’clock on evidence, mitted in and it was shown morning February Dep- 24th. Chief purchased Duncan had two bottles of shav- uty Reynolds only was the witness as to ing lotion on the afternoon of the crime. what occurred that on occasion. Accord- Reynolds also testified that took the officers Reynolds, deputies one clothes,, baby from Duncan’s room “some knocked on Duncan’s Duncan in- door. * * diapers diapers, *. Four new one vited sup- them in but the record does not port two-tone, finding blouse, pa- a that yellow before the invitation was blue one blue— jama top, extended Duncan undershirt, was advised one that those white one white police pajama who wished to enter officers. were bottom.” But these items were not that, Reynolds, According Reynolds the lock on the admitted in door evidence. stated broken, wоrk, something.” “was or put or didn’t he saw Duncan on a white shirt which deputies When the appeared entered the room Dun- had a on discoloring it which bed, although can in apparently deputies was awake. be blood. two took After of the deputies courthouse, The did not have search warrant Reynolds a Duncan to the con- and apparently did not have a warrant tinued his search Duncan’s room re- and n moved upon jail that therefrom sheet which Duncan confined in Feb- a bed was on appeared ruary a he discoloration said was which Sheriff Colvard testified that “charged” Duncan be blood. was not until Mon- day, February 25th. Duncan remained Immediately last-mentioned custody February 24th until date room, search of Duncan’s he was carried of trial. jail, he met to the courthouse or where was “ * * * Colvard, Tuesday, February 26th, On by was testified: Duncan Sheriff who department,” carried to the “photography I this crime had told Defendant that where he going committed was to have was asked to disrobe. He com- been and we plied request with question twenty-four him And I him that about it. asked and “close-up” complied pictures pants.” color slides or were to lower his Duncan taken body, request including of his his with that and the Sheriff noticed entire n that the tail of the shirt “appeared pictures hands. The slides or his to have hands were he admitted evidence. The 'blood on it.” Duncan told the Sheriff n others were time not introduced. At the did know blood was on shirt. pictures made, these slides or along shirt was evidence no admitted family member toxicologist requested of his had with lawyer visit that, opinion, present him. effect No and sub- his Duncan had not on the tail shirt human thаt stance of the advised a counsel, to consult type that de- but blood Sheriff same baby. Colvard testified type that Duncan (cid:127)ceased It was also of same consented having pictures blood, brought by made. as Duncan’s fact out a Duncan’s counsel. Duncan was then “con- day, February Wednesday, On the next jeans” fronted” with “blue with the 27th, questioned by Duncan was n stain said, thereon and “I don’t know where Colvard, by solicitor, the circuit and unless it was when could come from deputies two of the latter’s or assistants my digging I hurt hand a ditch.” Duncan reporter. before a court Duncan’s sworn jeans” wearing (cid:127)denied the “blue on the statement in- that on occasion was n previousnight, saying that the last time he troduced in counsel. dug them wore was when he the ditch. gave that ac- statement Duncan a detailed Sheriff Colvard examined on that Saturday count and of his movements on length while (cid:127)occasion at Duncan said Saturday February 23rd, day night, helped he had in the search for the the crime. Duncan said he never child, thing he stated he did not “know saw the child and did it was not even know n about child at all.” oc- room next to one which he cupied. February 24th, He stated that he had been drink-

Late in the afternoon ing whiskey day placed jail after Duncan wine had been he did office, anything not remember that oc- being detained in the Sheriff’s curred after he returned from a Deputy Reynolds deputy visit (cid:127)Chief and another Saturday motel ex-wife to the late entered Duncan’s room made a search warrant, afternoon until he was awakened per- without about a search but with eleven him o’clock someone told Reynolds mission who of the motel owner. baby hаd been lost. Duncan admitted during testified that that search he found buying shaving Saturday lotion did diaper pin bed, under Duncan’s pin drinking not it remember it. Duncan said possession. he into his The took was agreeable question- was him his with for not introduced evidence. ers test arrange to have a lie detector to There is an endorsement on the “Writ made of him. n ofArrest on which was ex- Indictment” effect that Other than to the day ecuted on March the on which perhaps deputies his Sheriff Colvard and returned, indicating indictment was day apparently depart- a his each a short “release” which talked to Duncan period time, required sign subjects ment all the record silent as to to either subjected anything transpired being interrogated before during that the time to Wright “private” jail the lie asked Duncan was confined his detector test. Dun- 24th, cell can Wednesday, February un- to read the Duncan from release. stated read, whereupon til that he Wright March could 6th. not Duncan, read the release to who then mentioned, Col- last On the date signed Wright it. did tell Duncan- brought Reynolds Deputy vard and Chief that legal a lie detector test was evi- Montgomery. to Gadsden Duncan from against dence and could used not be him' a order. without court trip was in court. him testified, “We carried Sheriff Colvard Wright Lieutenant asked Duncan if he- Mont- They reached request.” at his why Montgomery knew he inwas and he- o’clock ten-thirty or eleven gomery around stated he knew was there because of the he City of carried to the was and Duncan girl little killed and who had been said Deputy Reynolds. jail by Montgomery anything that he didn’t know about on officials called Sheriff Colvard already other than what he hаd told Sheriff Department soon Montgomery Police talking Wright Colvard. After for- Montgomery. At about one his arrival twenty twenty-five some to minutes Dun- 6th, brought Duncan was March o’clock on can, according Wright, stated to then that City Montgomery from the Jail he had Wright; confidence in that he had Department, he where Montgomery Police truth, not told Sheriff Colvard the that polygraph that taken room was he ready was now tell truth to department. seated in comfort- He was a Wright. According Wright, de- room, in which lounge chair in able fendant, Duncan, the following then made desk, equipment on only was a other statement: equipment polygraph had which the placed, for use chair behind desk “He stated that he in the was room was so While Duncan an examiner. next baby door where the was on Wright, seated, the Mont- Lieutenant night incident, he Department, polygraph gomery Police party going heard a room,, in that on examiner, room intro- entered the room, in the next ap- from his room He Duncan. told Duncan parently duced himself to men both in and women the- two-way in the mirror there was room. room, tell him the effect did not but he baby crying, “Later he heard a and' permit people was from that mirror cabin, he walked next out of his door and observe what outside to see baby cry- to the cabin where the polygraph without going in the room ing, and said that he found door- being tell seen. He did not themselves ajar. pushed open, He the door permanent on the Duncan that a fixture baby picked was in the floor. He microphone, in- which was so desk was a baby up and walked back over to- persons and connected stalled cabin and went in. proceedings viewing the from the other baby “He said he laid the on the bed' two-way side mirror could so-called and —he thought his intentions were- occurring also hear what was in the room. change baby’s diaper. And explain He Duncan that did on the desk from there he said didn’t know he what polygraph instrument. situated the happened but, baby’s, got after he Wright diaper off, that he pulled pants

Lieutenant told Duncan off and examination; did got submit to the baby not have to bed with the and tried only rape baby. that he should so his own do He wasn’t success- He doing that, free will and accord. ful in showed inserted so he his- in the fol- the summarized baby which Sheriff vagina. baby’s in the finger lowing language: scream,'and he said became he began to baby up he the and snatched excited the me that he went into “He told arms, holding his left init his and took baby taken got the and room and mouth, gathered baby’s the hand over baby was into his room. The [sic] went and out could up clothes he what his crying. he went into He said cabin. behind the around it, got with with he bed room and into cabin, baby, the he didn’t what he and know the going behind “After happened, got then that he out through this continued down he said baby the and carried it bed with area, described way he is the marsh dropped it and it in Picked a branch. branch, he was at- as me, and to a upit slip- out the branch and carried he branch the tempting to cross and it in the lake.” baby into the threw dropped the ped, and branch. On wit- cross-examination of the State’s have float- baby must the “He stated brought Wright, ness counsel Duncan in this branch twenty or feet fifteen ed the his out fact that after Duncan made it. he could recover before Wright oral statements to Sheriff Colvard, relatеd connection wherein he his baby from the he “After recovered death, gave the Wright child’s then up he went branch, that he stated .the Polygraph According Duncan “a test.” described He lake. branch to a Wright, voluntarily. Duncan the took test baby, dropped the place he where the test, Wright examining the said that after baby the throw did .and said he opinion it was sub- Duncan told he where In the area the lake. into stantially he truth when “that the he said being as baby, described threw the he slipped dropped child fell and And, specifically, house. more old .an in the the water” and that Duncan told the big tree there was a oak attempted truth he “that when said he (cid:127) the lake. edge of get branch, the following out the child baby in the he the “After threw it some 15 20 feet be- or down the branch lake, back down said he came he having fore he succeeded.” The defendant cabin, up went behind branch and injected poly- into the case fact that the got in bed. his room and into made, graph ques- having test was Wright opinion tioned later, said, peo- to his some as to “And he truthfulness some statements ple apartment, or to came to his by test, per- Duncan cabin, he on the trial court wanting if had to know mitted baby, elicit baby Wright or State to seen the heard gave to the effect that anything.” Duncan truthful questions answers to the other making Duncan After had concluded propounded test, to him on the an- which above, he set out was asked (cid:127)statement definitely swers connected Duncan with the repeating mind Wright if would child’s death. presence of Sheriff Col- statement poly- proceeding vard, viewing had Following who the occurrences an two-way listening room, through graph mirror Duncan was carried type- microphone adjoining to them means room where there was agreed written sign was affixed to the desk. indicated writer. He questioned repeating that he would mind statement. Colvard Sheriff Wright presence then Duncan in the of a detective statement to Sheriff Colvard. Department and poly- Montgomery Police 'brought into the Sheriff Colvard and, Sheriff, typed questions according room others. The detective graph they propounded Col- him as Duncan then made a statement 156 they given Mapp AND were SEARCH and vard the answers as SEIZURE — Ohio, 643, 1684, 367 U.S. conceded

by Duncan. Sheriff Colvard 1081, 6 84 propounded L.Ed.2d A.L.R.2d 933 questions which he the this leading in their nature. After were questions presented One of the serious is- interrogation completed, questions the ini whether the trial court erred to reversal Duncan, answers read and over permitting the State offer evidence rela- the which said that answers he who investigating tive the to the articles which correct, signed he given were and then room, found in Duncan’s had' officers which presence statement in the confession the tendency connect Duncan the persons signature. of who witnessed his commission the with which he was of crime substantially The written the statement charged. given by same as Dun- the oral statement Wright. can to Lieutenant Mapp 643, Ohio, Prior to 1081, 1684, L.Ed.2d S.Ct. 84 A.L.R.2d following day, 7, 1963, On the March Supreme by decided the Court carried Duncan had been back to appel 19, 1961, United States on June Gadsden, county seat Etowah Coun- of consistently late of this state had courts ty, by again interrogated he was by held that obtained an unreason presence in reporter, Colvard of a court in able search and seizure was admissible questions who took down Sheriff Colvard’s trial of charged with a violation of one ques- and Duncan’s answers. When this state, except the law of where evidence tioning completed questions and by a so obtained was made inadmissible typed signed up, answers were Duncan statute, 29, Code state as Title such § statement, which contains some details State, Ala. So.2d Fikes v. different those contained in some of 303; State, 259 Ala. Oldham v. previous statements, but we do think State, Ingram So.2d Ala. they are importance point of sufficient So.2d Banks v. out here. 93 So. 24 A.L.R. Shields hold 85. Our So. testify. Only per- did not two ings just were in accord cases cited sons were called as in be- witnesses by with the rule enunciated They half. were the of motel owner in Wolf v. Court of the United States husband, and her gave both testi- of whom People Colorado, of State of mony Saturday to the effect that on after- 93 L.Ed. decided noon, 23, 1963, February Duncan was drink- to the effect that evidence secured excessively. They further testified that violation Fourth Amendment period for a months, following rail- States, Constitution if rele accident, road Duncan had suffered “black- court; vant, was admissible in a State spells,” out during capable provisions Amend of the Fourth moving acting, but would remember imposed ment were on States nothing transpired during “spells.” Fourteenth Amendment. They testified that such condition was worse when Duncan was drinking. The owner of Mapp, supra, But Wolf overruled the motel gave testimony also to the effect People Colorado, supra, State day crime, that on the Saturday, Feb- respect “all indicated held that ruary 23, 1963, she observed blоod one on evidence obtained and seizures searches of Duncan’s hands. This was no is, violation of the Constitution explain doubt presence offered to authority, same state inadmissible on jeans” blood the “blue Thus, exclusionary Duncan’s court.” rule federal shirt. promulgated in v. United Weeks

157 652, cited, just of 341, In several the cases 383, L.Ed. 232 34 58 Appeals pre-trial a those Court indicated that applicable in the courts was made states, Alabama, motion to exclude evidence obtained not including which had adopted an unreasonable search and is nec- exclusionary seizure previously rule. essary. denying in in Brown But certiorari appears court It that this has not State, supra, v. “We do not this court said: upon called consider the federal exclu- pretrial suppress hold is that a motion to sionary appealed di- rule in a criminal case improper, but do hold that such motion is- case, rectly Mapp since to this court necessary may objection not and that supra, However, was decided. in Carlisle illegally first for the time when 436, Trammell, v. 163 State ex rel. 276 Ala. at the trial.” obtained evidence offered 596, equity So.2d a to abate proceeding (167 294) So.2d nuisance, alleged gambling citing an Mapp, we said: Perhaps it is to note that well reviewing a death case under the auto the rule that ob-

“Applying appeal statute, supra, may matic con illegal we tained an search is not com- testimony seriously petent sider that was legal proceeding against or in a prejudicial rights appellant party person property or whose may thereon, subjected search, though reverse no even illegal objection exception lawful or was made produced evidence, which we will 87, State, thereto. Alberson Ala. 47 v. 254 consider the of the offi- So.2d Our limited to the persons 182. review is not participated cers or other who brought search, raid, matters our attention in brief of or which was made 623, State, counsel. Lee v. Ala. 93 438, without 265 (276 a warrant.” Ala. So.2d 598) 163 757. So.2d Appeals The Court of has Alabama holding Court recognized impact holding case, Mapp of the United States

Mapp upon prosecutions case criminal in a supra, may not law of search nationalize the State, cases, number including Smith v. seizure, compel but it state does courts 41 Ala.App. 528, 474; 138 So.2d v. Moore problems arising examine resolve the State, 657, 734; Ala.App. 41 146 So.2d the search and seizure of evidence Phillips, State, Ala.App. alias Moore v. 42 light of the federal Constitutional 64, 148, denied, 698, 152 So.2d cert. 275 Ala. against guarantees search and unlawful 150; 152 State, So.2d Ala. Lawson 42 seizure. App. 172, 226, denied, 157 So.2d cert. 275 695, 228; State, 157 42 So.2d Pate v. The Fourth Amendment to Constitu- “ * * * Ala.App. 350, 127, denied, 165 So.2d cert. tion of the United forbids States 128; 276 Ala. 165 unreasonable; So.2d Matthews v. pro- every that is it search State, Ala.App. 42 166 So.2d all, suspected tects those known to be State, Ala.App. 429, Brown v. innocent, So.2d well as and un- offenders as denied, cert. 277 Ala. 167 So.2d questionably premises where extends to the - * * (Ala.App.), York v. State So.2d the search was made *.” Go-Bart -; State, Ala.App. Knox States, 282 U.S. Importing Co. v. United denied, So.2d cert. 374. In the 75 L.Ed. 795; Sopcjak Ala.App. So.2d just that there case cited was observed 403; Ramsey City So.2d of reason- is no formula for determination Huntsville, Ala.App. 603, 172 So.2d Each casе is be decided on ableness. Carpenter Ala.App. its own facts and circumstances. (Ala. 336; McCurdy 174 So.2d v. State App.), police to search officers want (Ala.), cert. denied When So.2d person’s they have either a 176 So.2d home must deputies o’clock on voluntary around eleven knowing, and other or a warrant search February 24th. Does the morning is incidental search permission, unless the voluntary “knowing, cir-: evidence show are other there arrest or lawful permission” given Duncan for case, cumstances, present in this made? search to be the rule. Wal- departure justify from 66, U.S.App.D.C. States, 95 dron United some sought to introduce When State America of States See United 219 37. F.2d search, during that of the evidence obtained 93, 96 L.Ed. 48, Jeffers, S.Ct. 342 U.S. 72 objected on counsel for defendant 59. among others, ground, that such evidence illegal mind, result an search we was the of in come foregoing theWith following point this tran- of the officers seizure. At of conduct consideration spired : the articles obtaining in in case this unquestionably tend- room which Duncan’s Reynolds, did the “The Court: Mr. of commission him ed to connect with defendant, you at into the time went whether crime, order determine room, say you anything to of in violation were obtained those articles you were to come reference whether Amendment. the Fourth not, you did come in or he tell not to in, come ? per that a It is well established against un protected room is son’s hotel Yes, He invited us “The Witness: sir. against seizure of search and reasonable in.” Jeffers, States v. therein. United articles California, person 376 A can consent to search supra; v. State of Stoner 856; 889, thereby L.Ed.2d 483, without warrant and waive S.Ct. 11 U.S. 84 483; Cir., protection Warden, 313 F.2d of the Fourth Amendment Hall 4 Maroney, against privacy. ex Clark invasion of the rel. United States Moreover, 624, record Cir., Zap States, v. United 328 U.S. 66 S.Ct. 3 339 F.2d peradventure States, beyond 1277, 1477; L.Ed. case shows 90 Abel v. United 668; 217, 683, the officei's en room 362 80 4 motel U.S. S.Ct. L.Ed.2d they States, 582, obtained tered from which v. United 328 U.S. 66 Davis 1256, 1453; considered incriminating evidence was 90 United S.Ct. L.Ed. Gilbert v. constituting States, Cir., 322, home. denied, Duncan and others as 9 372 307 F.2d cert. 132; 10 U.S. S.Ct. L.Ed.2d the officers did not It conceded that Cir., United v. Page, States 302 F.2d warrant on occasion have a search and cases cited. entered, when searched Duncan’s room was incriminating taken there- articles indulge every But courts reason from. presumption against able waiver of funda rights. mental constitutional Johnson The of Duncan’s room search Zerbst, 304 U.S. morn- Colvard around three o’clock 1461; Ala.App. L.Ed. Knox v. February 24, 1963,produced no dam- denied, 172 So.2d cert. aging testimony, opinion. On our 699, 172 So.2d 795. looking occasion Sheriff was Colvard girl. testify Fie that he little did not In Page, supra, United States v. any incriminating found evidence whatso- said: anything ever or that he saw which indi- importance pre- “Because perpetrator cated that Duncan serving rights, constitutional various the crime. rules have guidance been stated for the Incriminating judge determining was obtained in the trial Reynolds Deputy whether consent search to the search was in by Chief United States. Constitution must government given. fact States, 255 United Amos v. It must given. prove that consent L.Ed. v. United coer- no duress or that there was show Johnson States, 10, 68 S.Ct. 92 L.Ed. implied. The consent cion, express or States, U.S.App. Higgins v. United specific’ ‘unequivocal and be must United 209 F.2d Lee v. D.C. There intelligently given’. 'freely and States, U.S.App.D.C. 232 F.2d 354. de- convincing evidence be must v. United D.C. 90 903, 2d D.C. denied, ‍​​​​‌​‌‌‌‌‌​‌​​‌​‌​​​‌‌​‌​‌​‌‌​​‌‌‌​​‌‌‌​​‌‌​‌‌​‍Nueslein v. Cir., 505; States v. D.C. 37. States, must fendant has ^[*] See 716; L.Ed. 81, ^[*] 64, U.S.App.D.C. 312 85, Judd Gibson v. 9 *» 149 93 Nelson 115 F.2d Smith, F.2d 429; Cir., States, clear and F.2d District of 1291, 95 waived his United 285 595, United v. United 2 906, 381, U.S.App.D.C. 326 U.S. 690; Cir., 10 L.Ed.2d F.2d cert. cert. 83 positive States, States v. 308 F.2d Columbia, Channel v. 217; denied, 14, rights. denied, O’Kelley 724, States, 208 F.2d 190 89 testimony. 199; United 717, 66, Waldron 66 S.Ct. F.2d 657, U.S.App. U.S.App. 373 U.S. Viale, 2 There 219 73 9 United L.Ed. App. cert. F.2d 649; 29, Appeals of this state said: within a “ made of evidence ment or some overt act his intent to waive his to therein. An ground that sent, of such residence sufficient to indicate of such a demonstration of security freedom from or an invitation supremacy * * a search or seizure Knox v. there must * rights. invitation, of the law. residence on the private To seized open State, supra, privacy the officer’s justify the introduction unwarranted be A thereto, door is not waiver peaceful evidence of permission, or con- of his home and regard for is not a consent by the a * * rights but is police the Court of entry submission intrusions ”* a occupant a state- merely to the officer (172 791) cases, So.2d among them It is said some Smith, Cir., F.2d 2 308

United States v. the search which Were 657, a law enforcement follows: “When deputies made of Duncan’s room Sheriff’s himself, door, identifies officer at the knocks objects around and the removed therefrom prem- search the to be allowed to and asks February morning of eleven o’clock on the ises, gen- is acquiescence thus obtained 24, 1963, to lawful arrest? incident voluntary con- erally to considered sent.” True, tes- think Sheriff Colvard We not. deputies tified that he to Duncan’s sent officers In case the law enforcement him and that occasion to arrest room on identify and did not did not themselves that after a search was is also established premises. ask to be allowed search quarters living made Dttncan identify- gaining admittance without After It has never carried to the courthouse. themselves, Dun- the officers searched deputies had a war- contended that the the articles issue can’s room rem'oved Deputy and Chief rant for Duncan’s arrest permission. requesting Duncan’s without Reynolds testified that no arrest accompanied two and that Duncan are clear to the conclusion Reynolds deprtties the courthouse after room, to enter his extended invitation get dressed” him to “instructed person Duncan to the who knocked dressed, to come then asked him “when he door, consent to the did not constitute a to the on, go down I him that wanted constitute search of his room so as to House, wanted Court complain waiver of his tell even Reynolds did talk to him.” resulting commit search and seizure were to talk wanted the Sheriff Duncan what Amendment in violation of the Fourth ted 160 sources, persons and, credible or from Duncan was not since him about them, reasonably presumed commis- to know in the actual engaged

at the time pur- which, offense, judge if to the was he on submitted public nor of a sion having jurisdiction, magistrate have been suit, should information such require the issue of a warrant of constitute would in order to conveyed Duncan * * *” 511, Ala.App. (27 carrying arrest. deputies in the act of 155, 409) 175 arrest. So. lawful § courthouse State, 15, Ezzell v. See Title 1940. Code Webster, Indemnity 218 Co. v. Union 578; Tarwater v. 156, Ala.App. So. effect, said, 118 So. it was Ala. 816; Cobb Ala.App. So. State, believe,” that “reasonable cause to as used Ala.App. So. State, Jоhn- knowledge Title Code § Ala.App. So. son v. such as lead a rea- of circumstances would 70, Ala. So. Brown v. caution, ordinary acting sonable man of Rowland, 49 So. Rutledge v. reasonably preju- impartially, and without dice, person believe the arrested to be Findlay Pruitt, guilty. And in 9 Port. 1940,provides Code Title Section suspicion that mere will not we said follows: parts as pertinent justification an arrest. afford a for See any per- may arrest also officer “An State, Gibson v. 193 Ala. 69 So. 533. warant, any day, at son, on without discloses, depu- far as this record the As com- time, any public offense for ties, they when entered Duncan’s room peace threat- mitted, the a breach of or morning around eleven o’clock on the felony a presence; or when in his ened 24, 1963, possessed February no were in his committed, though not has been which, facts if submitted to information or arrested, or person presence, by the required judge magistrate, a have would committed, and felony has been when a Berry arrest. the issuance of a warrant of that cause to believe reasonable he has above, State, supra. As stated it; arrested committed person the * * at into Duncan’s room Colvard’s entrance (Emphasis supplied.) day, morning the three o’clock on the at the time of of Duncan The arrest discloses, produced insofar as this record arrested, can- search, then if fact he was in Duncan tending to connect no information He arrest. justified as an “on view” be If the Sheriff or with the offense. threatened public nor no offense Duncan, committed suspicious deputies even were presence of peace in thе a breach of the simply based suspicion must been such State, supra. deputies. Knox v. the occupied cabin next the fact that he child had deceased to that in which the be held to be such an arrest Nor could kept. been deputies had that the ground on the lawful that Duncan cases to cause believe innumerable federal reasonable There are may felony. police not arrest had committed a officers the effect that “probable suspicion, only on on mere Ala.App. Berry States, 371 Wong Sun v. United cause.” Appeals cited Suell Court of So. our 441; Mal L.Ed.2d 83 S.Ct. Derricott, 49 So. States, lory 354 U.S. v. United L.R.A.,N.S., 996, support of the follow- in 1479; United States 1 L.Ed.2d ing statement: Walker, Cir., Bucher v. 246 F.2d denied, Krause, Cir., cert. course, justify 200 F.2d cannot “Of an officer Bucher, ground that he Krause v. an arrest on the [had] Worthington v. Unit person 97 L.Ed. cause to believe reasonable Cir., United 166 F.2d felony, unless ed had a arrested committed F.Supp. Castle, D.C., States v. facts derived he has information of an ar- It is fundamental The introduction evidence of hot- removed, probable be rest cause cannot vali- from Duncan’s without ties room follow- subsequent not, dated obtained in a evidence eleven-o’clock search would opinion, require reversal, likewise that the cannot our a are search and search as we Busby any possible injurious be validated invalid arrest. unable to effect see States, Cir., 296 F.2d 328. to Duncan such evidence. opinion also of the are We police a with officer arrests When Deputy Reynolds to Chief warrant, objects out defendant diaper pin in he found a effect that to the introduction of evidence claimed to when he searched it late Duncan’s room arrest, to such an burden incident February 24, 1963, afternoon is on the to show that arrest was State search, erroneously That all admitted. like Objections supra. Knox v. lawful. rest, war without search interposed relating to all evidence being held rant. was at the time mean search. do not fruits Hence, could county at the courthouse. he objections are hold that to evidence Reynolds in make a have invited required capital our review in case. nothing search and there is to show that did not meet State that burden approached about the search while this case. already in custody. Duncan was Since custody, search could not be said We are the con constrained to incident to a lawful have been made as clusion reversible error is made to only possible justification of arrest. The appear permit rulings trial court’s Reynold’s statement to search was ting the to introduce in State permission effect received that he jeans” “blue and the iden strands of hair operator owner or of the motel to enter being tified of the similar to the hair permission not Duncan’s room. Such child, all deceased removed from Duncan’s one. legal sufficient to make the search a following room the search. eleven-o’clock California, supra. Stoner v. State Likewise, permit it was error to Chief exactly We are unable to determine how Reynolds Deputy testify on that and under circumstances Duncan’s what baby occasion he saw several items cloth- evidence, shirt, which was introduced room; ing large in Duncan’s that he saw refrаin, therefore, from was obtained. We on fly red stain or near the “blue of the opinion regard expressing an to its intro- jeans”; spot that he saw a Duncan’s on duction. appeared blood; shirt which to be that he saw a discoloration on a bed sheet CONFESSIONS appeared exclusionary to be blood. The the We come now to a consideration of imposed upon by holding rule the states admissibility the de- of the confessions of Court of States the United Duncan, by fendant, introduced in evidence Mapp case, supra, only applies in the the State. physical introduction into evidence of taken, objects illegally the intro- also to testimony objects extrajudicial con rule is that concerning

duction of prima involuntary illegally Wong United fessions are facie observed. Sun v. States, duty first supra; Co. v. inadmissible rests Silverthorne Lumber States, 385, 182, the trial determine United 251 U.S. instance on court 40 S.Ct. 319; voluntary 64 whether confession is L.Ed. Nardone v. United 338, 307; 266, appears 60 it 308 U.S. S.Ct. L.Ed. unless it so should not 84 State, States, Cir., Myhand 259 v. United 1 227 F.2d admitted. v. Ala. McGinnis 544; Phillips State, Ala. 66 248 So.2d v. 162 State, dire, 542; on voir in the absence v. So.2d White State, 624; jury. Hines v. See United Ala. 70 So.2d States of Carignan, Goldin v. Ala. So.2d State, Denno, Smith L.Ed. 127 So.2d Jackson So.2d 427. 12 L.Ed.2d erman v. 908; Rudolph Holman, D.C., During witnesses the examination of F.Supp. 62. made, which heard

who the confessions presence appellant’s “Here when in- occurred in the counsel examination completed jury, evidence voir introduced dicated State tending was made dire examination of to show that no threat Sheriff Paul accused; against that he that he was not stated had other witnesses dire, mistreated; physically by judge, that he was not on voir the trial ruling, pre- him excepted, told would be better to make a to which counsel for any opportunity appellant confession if he did cluded or worse for him for not; put or held other no reward was offered witnesses in the absence confess; get fury purpose out to him him that no for the of show- inducement of kind made to him. that his confession was not volun- tary. Counsel for Duncan denied the This was were not error for which judgment to examine the who witnesses so must be re- reversed and being (Emphasis testified. No offered (174 evidence manded.” supplied) 797) contrary, defendant the confessions So.2d were admitted in defend- over Rudolph Holman, D.C., F.Supp. objections. ant’s Appeals Tay- cited our Court of indicated, As supra, heretofore the occurrences lor petitioner, Rudolph, referred preceding paragraph awaiting Prison, all was Kilby execution in presence jury. occurred in the following There his conviction of crime of request was no rape, counsel for the de- the time petition at he filed his fendant that ques- corpus the court writ determine the of habeas States tion Court, as to whether or not confessions District Middle Ala- Division of voluntary presence bama, outside of the Northern District. We had affirmed jury. confessions, the As Rudolph’s State, to one the of Rudolph conviction. v. there was 115, a discussion held outside the 275 Supreme Ala. 152 So.2d 662. The presence jury, testimony of the but the Court the of United States had denied ruling jury’s thereon in Rudolph Alabama, occurred the certiorari. v. 375 U.S. presence. 889, 155, 84 11 S.Ct. L.Ed.2d 119. hadWe petition file a for leave to also denied a May 4, 1965, Appeals, Our Court of on petition nobis. for writ of error сoram Taylor State, Ala.App. in the case 42 of v. Rudolph, 392, parte 162 So.2d Ex Ala. 634, 795, 174 So.2d case was not which Supreme the Again the Court of 486. brought review, here the said: State for United denied certiorari. States 1185, “Before the the All voluntariness of L.Ed.2d 188. matters, filing confession the trial of is determined of these other the than court, petition corpus the court receive and should the for habeas in the federal any court, hear by the ac- of the district antedated the decision offered cused tending the con- in to show that Court the United of States voluntarily. Denno, fession was not made v. Jackson State, v. 12 L.Ed.2d above 83 Ala. So. which as shown Jackson State, opinion White v. in of 260 Ala. was cited the of Court our Appeals Taylor State, supra. So.2d and the accused should he in v. How- given ever, the present Jackson, such the in re- opportunity decision we voluntarily facie grant stay of execution and it that confession "was fused the ' unless, course, Rudolph’s filed the made counsel of circumstances was then that the corpus attending the petition habeas the their for writ of confessions disclose voluntary State, district court. character. federal Johnson 5 So.2d But it has not been Holman, Judge supra, Rudolph In considered this court to be a denial of Rudolph discharged from ordered Johnson constitutional the evidence for retrial, ground custody, subject the to be judge addressed trial of that in his trial in the Circuit Court presence jury. It has been almost (Jefferson Coun- the Tenth Circuit Judicial custom uniform for such' evidence to ty), process law was denied due of he presence be taken in jury, of under the Fourteenth Amendment it has been considered that the determina in that Constitution the United States tion of the voluntariness confession request of the trial court had overruled a solely for the trial court' and not for given op- Rudolph’s an counsel that jury. However, after the confession portunity presence jury out of has been jury admitted the could consider inquire on the into and offer evidence the circumstances under which the confes question admissibility of a confes- obtained, sion was appliances' by and the opinion sion. If cor- we understand elicited, which it including the situa rectly, Judge hold- considered our Johnson tion and mutual parties relations Rudolph ing in exercising their prerogative exclusive So.2d effect the trial court determining credibility evidence, refusing did not commit reversible error weight to which it properly is en jury predicate to excuse the while the titled, in controlling the formation of a being laid of the con- introduction verdict. supra. Johnson fession, prior be in accord with not to our support In of his holding Rudolph decisions. would like our to record was entitled discharge, to his Judge disagreement. We have never held that John- quoted son cited and from Schaffer requirement jury it is a be ex- Cir., 221 F.2d during cused A.L.R. the time evidence is offered 2d applied the federal rule. relating to the voluntariness of a confes- appeal That was an sion, from a fact, federal dis- insofar as we are aware. trict court and we nothing observe very unusual to review a record where opinion in that case which request indicates an Perhaps such a has been made. attempt impose the federal practice rule on state has been fоllowed in some courts. judicial circuits, but if are not so we aware of it. Alabama has been said to follow brings This us to a consideration Jack-

the so-called Orthodox Rule relative to the Denno, supra, son v. sometimes hereinafter Appendix admission of confessions. See A case, referred as the Jackson Jack- to Mr. Black’s dissent in the Justice Jack- son. to a murder confessed Jackson case, supra. However, son since the so- disputed evidence had been received called Orthodox Rule seems to contem- confession, as to the voluntariness of that plate separate a hearing before the trial presence jury, of the under the es- judge Voluntariness, alone on the issue of procedure. tablished New York Jackson then strictly we have following not been was ‍​​​​‌​‌‌‌‌‌​‌​​‌​‌​​​‌‌​‌​‌​‌‌​​‌‌‌​​‌‌‌​​‌‌​‌‌​‍convicted. If we understand the so- that rule. called New York rule is: If under no said, We have often as heretofore circumstances the confession could be shown, prima voluntary, facie judge confessions are deemed the trial was ob- involuntary and ligated there must be evi- pre- to exclude it. If the evidence dence judge addressed to the trial rebut- question sented a fair fact its of as to ting presumption showing prima nature, voluntary and was re- confession

164 proper instruc of his confession should not have under jury, and the

ceived question. losing convicting jury decided After tion, determined the pro- appeal Jackson, 10 N.Y.2d should have been determined in v. (People 59; 621, separate apart 780, ceeding N.E.2d and 219 177 N.Y.S.2d 816, body opinion, trying guilt 221 N.Y.S. N.Y.2d or innocence. amended 10 So 234; denied, 521, agree 178 cert. 368 far we hold N.E.2d and thаt he is 2d now 390, 949, 344), 7 L.Ed.2d entitled to hearing 82 S.Ct. such state U.S. corpus sought in a federal court.” habeas Jackson court, asserting that his conviction district Aside from the statement which we have properly confession was founded on a just quoted, lengthy there is much voluntary. writ The was determined to be opinion which leads us to inevitable D.C., denied, Application Jackson, of there Supreme conclusion that the Court of the 759, Appeals F.Supp. the Court of 206 uphold United States will not a convic- affirmed, v. United States ex rel. Jackson question where tion as to the voluntari- Denno, Cir., 2 F.2d 309 573. Certiorari ness of presented the confession is Supreme granted by the United States presence jury request if a for a hear- 967, Court, 553, 371 83 L.Ed. U.S. S.Ct. 9 presence outside the jury is made. of questions 2d 538 consider fundamental “to constitutionality about New discloses, Insofar as research all our procedure governing York the admissibil state courts which have considered the ity alleged involun confession to be question have construed to so hold. Jackson tary.” 84 People Jolliff, v. 31 Ill.2d 202 N.E.2d 908. The Court of the L.Ed.2d 506; (Ore.), Freeman v. Gladden 396 P.2d United States case of overruled its recent 779; Ortiz, State v. 97 Ariz. 399 P.2d People York, Stein State of New 171; Owen, State v. Ariz. P.2d L.Ed. People Walker, 374 Mich. rule, and held that the so-called New York 87; People Perez, Cal.App., N.W.2d trial, which had been followed at Cal.Rptr. 161; rel. Commonwealth ex Gaito Jackson’s was unconstitutional as a of due denial Moroney, 416 Pa. 204 A.2d process guaranteed by of law the Four People McMann, ex rel. Meadows v. teenth Amendment Constitution of 243; Lopez Misc.2d 252 N.Y.S.2d the United States. (Ct. Cr.App. State Tex.), S.W.2d Burke, State ex rel. Goodchild v. given careful and deliberate Wis.2d 133 N.W.2d 753. consideration to this decision in the Jack- case, supra, son while we realize that only case which to our has come only the Court knocked out the so-called attention wherein construed as Jackson apparently ap- New York rule gave requiring judge trial hear proval to the Orthodox Massachusetts evidence as to the voluntariness con- rules, nevertheless we are clear jury fession in the absence of the Smith opinion that the New York rule void- Texas, D.C., F.Supp. v. State only ed not because certain instances know, Insofar has been as we there no question of voluntariness the con- precise ruling by the States Su- jury’s fessions was left for the determina- preme Court v. Denno is tion, but also because the evidence adduced Jackson retroactive. But in at least instances two relative to the voluntariness of the confes- Supreme of States has the Court the United jury. sion was taken before the remanded to state for further cases courts case, opin- In disposing proceedings the of the the not inconsistent with apparent of Court the in is from a read- United States said ion It as follows: Jackson. opinions of in that the position the Dis- the those cases before “Jackson’s here, prius Court nisi the trict and is that the issue trials at occurred in state case, in prior although decision See son courts to we do this with some Jackson. Owen, supra. apprehension And in Arizona v. because State of there certain are F.Supp. Maroney, uncertainty. areas of United States 156, it was said: We are clear to the conclusion “Furthermore, was not since Jackson that whenever a motion is made the for appeal from the conviction a direct question of the voluntariness the confes of but, instead, anwas

in courts the state sion presence to be determined outside the of cor- habeas appeal collateral from a jury, the the granted. motion should be the that pus proceeding, it is evident hearing, such a judge sitting the trial applied retro- in is be rule to Jackson alone upon should make a determination actively.” proper record of the issue of voluntariness. At hearing such may the defendant take application of agree the we While testify the stand purpose and for the limited in by Judge the case made Johnson Jackson making of a record of his the version of Holman, supra, and our Rudolph v. facts and circumstances under which the Taylor su- Appeals in Court of By confession was doing, obtained. so the pra, treating Denno as retro- and Jackson defendant will not waive his to de active, opinion, since we of the are cline to take the stand in his own defense ground, case must be reversed on another on the trial in chief any nor will he waive required ground the a reversal is not rights of the other stemming from his process law that Duncan was denied due of testify. choice not If to the confession is question in the that the as to voluntariness held voluntary admitted, jury’s the the the determined in of confessions was consideration of that confession and sur presence in jury. the As we have shown of rounding proceed circumstances shall Holman, Rudolph supra, Taylor and in accordance with proce the “Orthodox” State, supra, counsel for the defendants durе, is, jury the considers the volun requested they permitted present be to tariness affecting as weight or credi relating the voluntariness of to bility confession. presence of the the confession outside request was jury. no In this case such If request there expressly is no and, moreover, was no contra- made there counsel for defendant that the testimony adduced diction hearing on the issue of the voluntariness presence jury relative to volun- of the confession be heard in the absence effort and no tariness confessions jury, think, nevertheless, we to by counsel the defendant was made the trial court should on his own action witness, present any the defendant or oth- require hearing such be if to held there ers, testimony presented by the rebut the any testimony, be conflict State to the voluntariness of relative particularly when the defendant desires request made for confession. If a had been stand, to take the because under our rule question the voluntariness of the in Fikes v. 81 So.2d determined outside confessions if a defendant takes the stand to presence jury, the trial court would testify to facts showing that a confession granted it because there no doubt unduly certainly influenced “he ought were numerous between the discussions respond questions guilt as presence court and counsel outside the fact and matter relevant thereto. jury. He cannot restrict the nature of the rele proposes give.” vant to the circuit fairness feel that Goodwyn attorneys The writer bench, prosecuting Justices counsel, Merrill entertain view that the federal defense we should and to state may interpret courts case thе effect views on state our Jack- Jackson made, at the time confessions were nor requiring that the issue of the voluntariness had he been advised to counsel. Of he determined outside of his the confession events, presence jury in all Spano People of New of State suggest trial for that reason would to the York, 3 L.Ed. 79 S.Ct. precaution it courts that as a matter of accused, despite repeated pleas 2d might be in the future to decide that best attorney eight to see his and after hours presence issue in all instances outside questioning, of continual tricked into jury in of the there has been an unless confessing by repeated urging Supreme formed waiver. The Court of misrepresentations of a friend who was a Henry the United States in v. State policeman. requested a Duncan never Mississippi, U.S. lawyer. question- protracted There was no excep 408, suggested that under L.Ed.2d ing. repeated There is no pre accused is not tional circumstances an' urging misrepresentations or friend of a asserting cluded constitutional claims anyone else. There other factual despite But there strategy. even counsel’s present Spano situations which distin- just opinion was no elaboration guishes case, it from this think we might wliat constitute such circumstances. pointed those out above are sufficient to Burke, supra. See State ex rel. Goodchild v. Spano show controlling alone is not here. interpretation of In the area of are Constitution we ob

the United States States, In Massiah v. United majority liged accept the view of L.Ed.2d States, Supreme United how Court of the violating Massiah was indicted for the fed may individually аssess dis ever we lawyer, eral narcotics laws. retained a He Harlan, Black, Clark sents of Justices pleaded guilty, and was released on joined. which latter Stewart Justice bail. While bail a he was free on federal say here, as late Stone said Justice agent by surreptitious succeeded means in 31: in Green v. listening incriminating statements by him. Evidence of statements was those “ * * * uniformly, Fed We have against introduced Massiah his at trial over questions eral in the solution —those objections. He was convicted. The of which the Federal Court Supreme Court of the United States supervision judg exercises a of our reversing said: rulings ments —conformed our petitioner was law declared that tribunal. This “We hold done, because, questions protections of that we have on all the basic denied under the when arising guarantee Constitution Amendment] [Sixth his trial against and the acts of Con him at there was used thereunder, incriminating gress rulings of that evidence of own final, words, agents court are all tri had de- to which State federal yield. McCrary, liberately bunals must him Nelson v. elicited from in the absence 65 Ala. indicted and Pollard v. had been supplied.) 628; Maguire (Emphasis v. Road Commission his counsel." ers, depart We will not 71 Ala. 401. bypassed the expressly Since the Court rulings, much we from these however question whether the confession as to may from the reason sometimes differ Massiah’s bad because of a violation of majority conclusions Amendment, rights under the Fourth ”* * * that court. have italicized above seem words which we confessions, to be the real basis the reversal. We Were all of which were indictment, distinguish Massiah made before be- it sufficient to inadmissible think lawyer present by pointing in this Duncan did out that the confessions cause not have a is, the Amendment to Constitution as Massiah indictment. before case came upon by the obligatory the in the ‘made States originated course, which case of Amendment,’ applies to Fourteenth Gideon v. court, no doubt federal Wainwright, U.S. at S.Ct. counsel right the to since state courts [792], L.Ed.2d by the at 795 and system the federal guaranteed [9 799] by police bind- no statement elicited dur- to be the has been held Sixth Amendment may by interrogation due the be used states virtue ing upon the against him at a criminal Fourteenth trial.” process guarantee of the Wainwright, Amendment. Gideon In this case was not refused 335, 83 9 L.Ed.2d 799. U.S. lawyer services of a he made the before in Esco- Supreme request Court’s decision The He did not confessions. such serv- Illinois, of v. State bedo ices. But Duncan was not advised of his goes 12 L.Ed.2d right counsel, but was he advised before Massiah than the decision in further even made the first confession that he did not be- obtained in that it voided a confession have to and was submit examination provoked this com- indictment and fore told that he should do so of free will his opinion dissenting criticism ment or and accord. White, in Mr. of Mr. which Jus- Justice opinion Although of the Court joined: and Mr. tice Clark Stewart Justice purports to Escobedo be limited to the facts major step is thus “The decision another case, courts con- some have not so goal the Court the direction of it, White, strued Mr. in his dis- as Justice seemingly from evi- has mind—to bar sent, intimated would be the situation. an in- dence all admissions obtained from suspected crime, in- dividual whether Supreme The Court California Peo- voluntarily made or not.” Mr. Justice ple Dorado, Cal.Rptr. 264, P.2d separate dissenting opinion. filed Harlan that, holding has Escobedo construed as suspicion has focused the accused once suspicion murder, Esco- Arrested on purpose interrogating him is to questioned police he con- bedo until statements, incriminating state- obtain such interrogation, his Throughout fessed. accused, against ments be used cannot frequent requests attorney call counsel, though request did not even denied, he was never advised right counsel intelligently unless police right to The of his remain silent. presumed and that no waiver can waived Supreme in a Court of the United if investigating officers did not inform decision, five-to-four Escobedo’s reversed suspect right of his or his counsel conviction, saying: right to remain silent. For cases to therefore, where, hold, as “We effect, decisions, very same two recent see here, investigation longer a is no yet reported: (R.I.), State v. Mendes general inquiry into an crime unsolved May decided on A.2d begun particular but has focus aon ex rel. Russo New States v. State of suspect, suspect has into been taken App., Jersey (U.S.Ct. Cir.),-F.2d 3rd police custody, police carry out a -, May decided on process interrogations lends eliciting incriminating Oregon itself to state- Court has con- ments, suspect requested being authority has strued for the Escobedo proposition opportunity been denied an consult that an accused must be effec- lawyer, tively right police and the warned of his constitutional effectively silent, him that if affirm- warned absolute remain this is not of his silent, atively constitutional shown a confession remain warning accused has been denied Assistance оbtained without such is inadmis- ‘the Neely of Counsel’ in P.2d 557. (Ore.), violation of the Sixth sible. State v. 168 206 the time the (R.I.), Dufour the accused at confession State v. was

To like effect is obtained. A.2d 82. Many which state courts have considered re holding Escobedo to For other cases effect, have, holding Escobedo limited its of a confession see: quire rejection presented. to there the factual situation 878; Cir., Dickson, 336 F.2d

Wright 9 v. States, Cir., F.2d 5 341 Clifton United v. -, In Bean 81 Nev. v. 398 P.2d Warden, Cir., 649; F.2d 201. Miller v. holding the confession there under to be consideration not because inadmissible U.S.App. States, Queen In United Escobedo, said, court quoting ap Escobedo was 335 F.2d D.C. part quoted that Escobedo we have accused, prior plied an a where situation above, as follows: and indictment, having requested counsel opportunity an to obtain having given been specified “Each of the factors must counsel, done so. The accused had not controlling occur to that case make a advised, making before the extra had been precedent. it Here is true statement, self-incriminating her judicial investigation begun upon had to focus if a right not to make statement and that Bean; had that he been taken into might against it be used her. did so she police custody; police At the time the statement was made process about to a commence of inter- investigating accused told the officers rogation incriminating elicit state- lawyer, i a in the she had obtained was ments, so; that Bean and did was not one, 'process obtaining going warned of absolute his constitutional do so. right However, to remain silent. Bean request counsel, did not nor was he de- interpret the fеderal cases nied assistance of counsel. Absent holding as that Escobedo hereinafter cited request, such a counsel, denial of prevent the of a ob does not use confession apply.” rule of Escobedo does not indictment, although before counsel tained present, not where the accused had People Agar, 44 Misc.2d right been to counsel or that advised N.Y.S.2d it was said: or that he need not make statement “The nub of Escobedo is contained may if a is made it be used statement foregoing quotations, and re- States, against him. v. United Jackson gardless of what the ultimate determi- D.C.Cir., 136; Long F.2d v. United be, may nation this Court holds that D.C.Cir., States, 338 F.2d United only Escobedo decided that ‘under the Cir., Ogilvie, States ex rel. Townsend v. here, circumstances the accused must be 837; Otney F.2d permitted lawyer’, to consult with his Cir., Latham York v. 340 F.2d wit, requested a case which he Crouse, Cir., 338 F.2d Davis lawyer a lawyer or in which a was ac- Cir., Carolina, 4 North 339 F.2d 770. tually present requested to see him. interpret Holman, Cir., I Escobedo as holding In Edwards 342 F.2d a that, distinguish- confession taken from was said to be case defendant prior to the particulars. judi- able in several commencement of a from.Escobedo cial factors, proceeding Among distinguishing is other it was inadmissible where police ‘the pointed effectively been out that Edwards had advised warned him of his rights” absolute of his “constitutional and Escobedo constitutional only principal point remain silent’ lawyer of distinc- where not. But the ‍​​​​‌​‌‌‌‌‌​‌​​‌​‌​​​‌‌​‌​‌​‌‌​​‌‌‌​​‌‌‌​​‌‌​‌‌​‍is denied access to tion we it was that him or view Edwards where ‘the suspect requested suspect has no at the time of more than a denied opportunity an interrogation, had becomе consult while Escobedo with his an request no to consult with police He made lawyer’. arrest officer any attorney attorney did seek nor suspect not the commencement him. We deem that this pre judicial proceeding which confer of a fully distinguishes and that Escobedo of a the admission confession cludes here.” does control result as that in the absence of counsel taken Biasi, People in is v. Di 7 term used (Del.Super.Ct), v. State Winsett See 21, 544, N.E. 200 166 N.Y.2d N.Y.S.2d 510; 131 (Iowa), A.2d State v. Fox 205 825; Waterman, N.Y.2d People v. 9 2d Ill. 684; People Hartgraves, 31 v. N.W.2d 445, 70, 561, 175 216 N.Y.S.2d N.E.2d State, 33; 375, N.E.2d Mefford v. 2d 202 162, People Meyer, v. 11 N.Y.2d 824; 497, v. How Md. 201 A.2d State 235 427, 103 227 182 N.E.2d N.Y.S.2d [See 701; Mo.), (Sup.Ct. of 383 S.W.2d ard Fleischmann, People supra, 43 v. Misc. Smith, 67, A.2d 43 202 State v. N.J. 200, 2d N.Y.S.2d 660]. 250 (Tex.Cr.App.), 384 S.W.2d Turner v. State í¡í í}í í{í Coyle, 415 Pa. ífc v. Commonwealth may be “It well conclusion 782; People Langert, 44 A.2d Misc. 203 Supreme Court of the State of Elam, 263 2d N.Y.S.2d State v. . in will the ulti- California Dorado S.E.2d 601 N.C. indisputable mate determination Supreme if the Court States expand will not Escobedo court, question is reaches that as it now here, situation, a cover factual we have as constituted, been but until there has an begun focus investigation where the had contrary, appellate ruling to the zuhich on Duncan and did have counsel he not Court, upon I binding is will con- right and was not advised the so-called that, unless tinue counsel rule to counsel before his were confessions or the latter denied his client access made, requested coun-1 where he had not counsel, requests a a confession told, effect, sel in and had that he did I defendant, under statement made not have to make a statement. We hold present here is ad- the circumstances lawyer that the that a mere fact was not him, he against and that need missible present when the confessions were made right not be cautioned that he has a did not render them If the inadmissible. says may anything counsel nor that he Supreme Court of the United had States (253 against be used him.” N.Y.S.2d point reached the in Escobedo where 763-764) say wanted to a confession taken at such stage before indictment was inadmissible Browne v. Wis.2d simply because counsel for the accused was N.W.2d Court of Wiscon- present, every so, not it had reason to do sin said Escobedo: dissenting opinions. view of the But it pertinent “The circumstances ' , did not see fit to so hold. . during interrogation case repeatedly arrest he after Escobedo’s We do not hold that il Duncan was lawyer speak such asked his legally prior detained time 'the con denied; request lawyer came to made, fessions were but we observe police station and asked the officer insofar we as are advised the so-called permission charge to see Esco- McNabb-Mallory (McNabb rule v. United bedo; denied; States, that also was and the 318 U.S. 63 S.Ct. 87 L.Ed. police 819; Mallory never advised Escobedo of his v. United right constitutional to remain silent. 77 S.Ct. 1479), holding- L.Ed.2d confession, only similarity between those facts inadmissible in federal courts a present has-, and the here is that de- during obtained illegal facts an detention, not applicable fendant Browne was advised not been made to trials of crim constitutional to remain silent. inal courts, cases yet.. state Gal- uneducated to twelve-year-old He is Nebraska, son. U.S. legos v. State read,, but there is cannot an be sure. He (overruled on 96 L.Ed. any degree of cer- nothing to Wainwright, show su point Gideon other except mentally alert tainty that he is New People State of pra) ; Stein much to perhaps he has too when York, 156, 184, custody drink, had been in point in (overruled on another L.Ed. 1522 6th, 24, 1963, February until March when Denno, Ingram supra); Jackson made; pre- so his first confession was 497, 42 So.2d sumably his time mental condition at shown, the confes- before As we by his of the confession was affected introduced admitted the State sions were There was some weakness for alcohol. threat tending that no to show testimony given by witnesses Duncan’s he accused; that against the was made easily tending to that was in- show he mistreated; he that physically was not this, standing suggestions, fluenced but him to it better for would be was not told alone, justify does conclusion that not the he if for him make confession or worse the were at time the made confessions not; held offered or did that no reward was fully capable Duncan was not of under- confess; no that get to him to out him to standing significance his of actions. any him. made to inducement of kind was This uncontradicted. was unwilling say are We to from record us illegally before that he was detained. record, think we that state of In he Sheriff Colvard testified that was n confessions in evi- admitted properly “charged” Monday, with the offense on ante- which circumstances unless the dence February 25, 1963. those along confessions, with dated the made, they were time at the prevailed which his twelve- discloses that The record n age, character when considered shortly after his him year-old son visited defendant, demonstrate situation was, young man while the confinement and to choice his free deprived of that he was course, his qualified to fаther not counsel of answer. refuse to admit, deny, or to to predicament, his visit tends to relative his consideration words, to a we come other Dun- not hold show that the officials did to “totality circumstances” of the so-called of perhaps for the except can incommunicado by the applied n sometimes rule brought to days after first few he holding con- United States Court of jail. Gallegos improperly admitted. fessions pictures S.Ct. Colorado, 370 U.S. Duncan to consented have of v. State Payne 26th, Tuesday, v. State February accord- L.Ed.2d made on 844, 2 Colvard, Arkansas, nothing S.Ct. is and there U.S. to Indiana, support contrary State of Watts record to con- L.Ed.2d 93 L.Ed. clusion. Tennessee, v. State Ashcraft questioned by several of- See L.Ed. 1192. February 27th, Wednesday, ficials on but Alabama, 28 So.2d Phillips v. appear interrogation it does not period time, was for an extended testimony in record no There is he did not confess. ais that Duncan positively shows which above, man, gather such be shown the record but to As we have white we by the occurred more or less silent as to what case certain situations shown hands, Wednesday, regard pictures his al- Duncan from to record and 6th, February 27th, day clear, The though so indicate. until March not too Montgomery. age, he can- taken he was record does not show years. Certainly support very He had an inference tender does be of or facts If there were any circumstanc7 mistreated he was- effect that testify to which Duncan could discloses, tending he es the record As far as way. the confes the .involuntariness of show cigarettes food, not denied water per be trial he should on аnother sions to contact free He was time. at give outside the such evidence mitted to if he had so friends, relatives or counsel Denno, presence jury. desired. Jackson supra. must have trip Montgomery having a lie de- may purpose not have treat for the We realize we say because every this test made. occurrence in detail each and tector ed given on Wed- Duncan, in his statement from the time of connection with Duncan nesday, February indicated confessions were confinement until the such a willing made, submit have treated he but we believe we would objection say no unwilling He to have important test. seems voiced facts and we are testimony to the trip been ex and there is confessions should go. “totality asked cir effect cluded on the so-called realize that cumstances” doctrine. We also question as to Perhaps the most serious opinion many have not treated in we given the confessions voluntariness of the United States Su decisions of psycho- possible Montgomery is the in preme apply Court which that doctrine or by being car- upon coercion logical rule, only further ex but do so would polygraph detector room lie ried to long opinion unusually and it tend this Department. Montgomery in the Police purpose really useful be serve would no Wright’s testi- Lieutenant But view of pre varying situations cause of the factual mony, Duncan was cannot we conclude in those sented cases. confusion which in a state of fear or He was told amounted to coercion. yet There is matter which another interroga- not have submit to did concerning we should consider the admis except that he do so tion and should not sibility of the confessions and is the Wright’s his own free will. Lieutenant poisonous so-called “fruit tree’* unimpeached stands and the na- doctrine, apparently imposed upon which is testimony impresses ture of us with his Ohio, by Mapp the courts of this v. state course, forthrightness. And, of the trial supra. essence, that doctrine is to the judge pass was better circumstanced to effect that an unlawful search taints question. this only search, at but obtained facts by process by discovered initiated objection permitting We see no Fahy unlawful search. State of Colvard, others, perhaps to Connecticut, 85, 229, 375 84 U.S. S.Ct. 11 proceedings view listen to the 171; L.Ed.2d Wong States, Sun v. United polygraph vantage point room from their 441; 471, 407, 371 U.S. 83 S.Ct. 9 L.Ed.2d outside the room. The situation is different Silverthorne Lumber States, Co. United presented from that in Aaron v. 271 385, 182, 251 U.S. 40 64 S.Ct. L.Ed. So.2d the writer Paroutian, Cir., United States v. 299 F. Stakely thought and Coleman Justices 486; 2d Avila, D.C., United States v. reversible error. F.Supp. 3. generally This doctrine has been The circumstances applied connected with involving to. cases searches in vio confession or statement made Duncan on lation of the Fourth Amendment March after he was returned to Constitution against unlawful search 7? from Montgomery, Gadsden seems to have es and seizures. Fahy v. State of Conn regular been respects ecticut, in all supra; and was differ- Wong Sun v. United previous ent from States, only supra; statements Silverthorne Lumber Co. v. respects. immaterial States, United supra; United States v. Paroutian, Avila, supra; because of United States v. rendered inadmissible the unlaw- seizures, supra. applied But it can searches ful be searches but viеw of statutory right. trial, of a Nardone another we have called doctrine this violation States, court, the attention of the trial for it 60. applie generally many 84 L.Ed. 307. It known that criminal has Wong States, way statements. v. United Sun cases find their into the federal courts supra. affirmed, resulting this court has application holdings different due to the doctrine, applying other For cases principles previously thought law not Goldstein, Cir., see: United States v. applicable to the trial criminal cases 485, affirmed, F.2d in the state courts. 1312; Warden, Cir., 86 L.Ed. Hall v. 313 F.2d Takahashi v. United PICTURES Cir., 118; People Rodriguez, 143 F.2d 11 N.Y.2d 229 N.Y.S.2d 183 N.E. Counsel for Duncan strenuous Spofford, 2d Commonwealth ly insist that trial court committed re Mass. 180 N.E.2d Kita State v. permitting versible error in the State to (Hawaii), shiro P.2d pictures introduce in evidence the body of the deceased child. Some rule, however, does not extend pictures gruesome, they depict are indeed which, although actually to facts discovered organ girl, the female under of the little process act, initiated the unlawful they the evidence in this admitted case were independently obtained from a source previous without error under the decisions sufficiently distinguishable to be free of the of this court. illegality. taint Wong Sun v. United In Harden v. 101 So. States, supra; Lumber Silverthorne Co. v. 442, it was said that “if there is evi- States, supra; United States v. tending support a reasonable in- dence Bracelets, Inc., Cir., Sheba F.2d ference that homicide was committed denied, cert. crime, to conceal another evidence of such Rutheiser, 2 L.Ed.2d United States v. other crime is admissible.” D.C., F.Supp. case Certain it is that the evidence Avila, supra, In United States v. it was placed person tеnds to show that the who said: girl in in an the little the lake did so effort conceal fact that sex- she “However, showing that the mere molested, ually clearly which fact estab- independent government had sufficient State, Hall lished the evidence. See so that in the information available State, 247 Ala. So.2d Miller v. might normal course events State, Ala. 30 So. Davis v. questioned evidence discovered Ala. 105 So. 677. illegal cannot excuse without an search -illegality tainted matter. or cure State, The case of Cobern v. 273 Ala. “Thus, should exercise the Court similarity marked So.2d bears the as- determine great care to whether question to this on this the admis- case poisoned of the tree’ were serted ‘fruits body photographs sion in evidence of product unlawful of the deceased. Cobern tried for rob- fact they to be in were held not search —as bery, but the evidence tended to show that Ditson, 20 Cal. People v. Cal.2d body he killed his victim. Her was shown (1962).” Rptr. 369 P.2d 714 condition, deplorable her have been practically pieces,

skull beaten to and there opinion express as was do not an a 22-caliber rifle bullet wound in the We case were the confessions in this chest. doctor testified that those two to whether injected Her Supreme death. Court have into Injuries cause the trial were sufficient mutilated, questions of criminal cases bruised and which are new body otherwise vaginal state, appellate puncturing of her the courts of this trial and including the poker evidently area, with a found courts alike. robbery During the course of room. indicated, judgment For the errors prosecution, photographs of the victim’s It is must reversed. so ordered. objec- over defendant’s

body admitted vaginal tion, including photographs her Reversed remanded. holding' the admission area. LIVINGSTON, J., GOODWYN, C. reversible constitute

photographs HARWOOD, JJ., MERRILL and concur. error, said: this court brings very cogent argu- “Appellant COLEMAN, JJ., SIMPSON and concur photographs of the victim ment that specially. by the were inadmis- introduced State sible, light at shed no on the matters evidence, issue, gruesome COLEMAN, special- and were (concurring Justice ly). inflame

the sole effect of which was to so, jury. do not think ground I concur in reversal on the appellant ‘acknowledges in brief even er- illegal evidence obtained search of this fact that the Court roneously photo- admitted. I agree that the been liberal in admission state has graphs showing and the con- evidence, photographs gruesome into admitted As fessions were without error. merely though the same be cumulative express other no matters discussed I Robbery nature.’ crime of is a opinion. photo- undoubtedly violence victim, graphs though un- even SIMPSON, J., foregoing. concurs in the sightly, tending were admissible gravity illustrate of the assault.

By analogy see Johnson Reedy 53(4); Ala. 133 So.2d 363(10), 528.” 20 So.2d

(273 871) So.2d record, consisting

This is voluminous large (cid:127)of volumes. three We have not 176 So.2d 868 opinion anything treated all of the like questions presented, hope we we Martha E. SMITH helpful will treated ‍​​​​‌​‌‌‌‌‌​‌​​‌​‌​​​‌‌​‌​‌​‌‌​​‌‌‌​​‌‌‌​​‌‌​‌‌​‍those which counsel on (cid:127)court and another trial. Robena MOORE. say that It is an understatement 5 Div. 811. Scott, Sandy inno

the murder of Ann an horrifying baby, an cent atrocious and Court of Alabama. act, if committed the crime. Whoever May 27, 1965. course, responsible, to be legally needs guilty, punished but it is axiomatic that Rebearing July 15, Denied innocent, accorded must be well as point process law. We like to due would judge fully conscious the trial

(cid:127)out that every effort

of that fact and exerted

prevent trial. getting into the error from holdings United States

But the recent

Case Details

Case Name: Duncan v. State

Court Name: Supreme Court of Alabama

Date Published: Jun 30, 1965

Citation: 176 So. 2d 840

Docket Number: 7 Div. 614

Court Abbreviation: Ala.