Gabriel v. State

40 Ala. 357 | Ala. | 1867

BYRD, J.

Under the provisions contained in chapter seven, title two, part four, of the Code, the indictment is sufficient.

2. The court, on the trial, as shown in the bill of exceptions, admitted, against the objection and exception of the prisoner, the following declaration of the accused as evidence, to-wit: “ The defendant said to the witness, he was in there for taking Mass’ Lee’s mule; that he had taken the mule on Saturday night, to ride to Demopolis on business, and was going to carry the mule back.” The prisoner was indicted for stealing a mule, the property of J. L. Terrell. All the evidence is set out in the record, and there is no evidence tending to show that “Mass’ Lee” and J. L. Terrell are the same person. We cannot judicially know, nor could the jury legitimately presume from the evidence, that they were the same person.

3. The evidence objected to, being illegal, should have been excluded by the court. It is evident that the prisoner had in view the objection to its admissibility on the ground that the confession was not voluntary. But the objection is general, and we do not feel authorized to limit the extent of the same. A general objection to the admissibility of evidence is sufficient, if the evidence is illegal upon its face, when applied to the pleadings in the cause. Cunningham's Ex’r v. Cochran and Estelle, 18 Ala. 480.

If the State had proposed to prove, or had proved, that “ Mass’ Lee ” and J. L. Terrell were the same person, then the evidence would have been admissible. But, in the absence of such proof or proposal, the evidence was clearly inadmissible. We are satisfied that, upon the facts shown in the bill of exceptions, the declarations of the accused were voluntary, and on that ground should have been admitted, if there had been no valid objection, as above shown.

As the other questions raised by the brief of counsel, may not arise again on another trial, it is unnecessary to express any opinion upon them.

For the error pointed out, the cause must be reversed and remanded, and the prisoner remain in custody until discharged by due course of law.