MacHen v. State

Apr 20, 1920

8 Div. 653.

Reporters:: , ,
Before:: Samford

SÁMFORD, J.

This is the second appeal in this case. For former decision, see Machen v. State, 16 Ala. App. 170, 76 South. 407.

On this appeal, the state’s evidence tends to show that certain flour, tobаcco, and coffee, the property of Howard Bros, and J. A. Gilbreath, severally, was stolen from an open warehouse at Larkins Landing, on the Tennessee river; that these goods were ordered by these merchants and delivered by steamboat on the afternoon of Saturday before Easter Sunday, 1915; that they were delivered on thе bank of the river, ’ in an open warehouse, at a public landing, left there over night and were ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍missing the next morning; that signs and tracks of three persons were found going toward the hоme of Martha Machen, over two miles away; that this defendant moved into the samе house; that some weeks later certain tobacco of the class missing, in an unusuаl quantity-, was found concealed in a box under the bed in a room occupied by defendant; nearly a barrel of flour was found in the same house, and 50 pounds of coffеe was found hidden in the crib. In addition to this, the state. *428 introduced testimony to show that this defendant had confessed to the larceny.

[1] The court correctly held that it would be necessary for the state to produce the shipping books of the steamboat сompany in ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍order to show their contents, and that the witness Campbell could not testify to their contents without a proper predicate.

[2] It was competent for the state to prove by the witness Morgan that there was a bag of coffee put off at the landing on the day before the merchandise was missed. True, the coffee was not completely identified by this witness, but there was other evidence tending to provе that it was the coffee stolen. The same is true with reference to the testimony оf Sumner as to the flour found at the house of defendant. The evidence in the casе was largely circumstantial, and these were hut circumstances to be taken and considered along with all the other facts and circumstances in determining the guilt or innocence of the defendant. The facts that there was flour, tobacco, and coffee at the landing, that thpre was flour, tobacco, and coffee at defendant’s house in unusual quantities and kept concealed in a suspicious manner, wеre all relevant facts, though the identity may have depended on other testimony which, if not produced, would have warranted a motion to exclude; but in this case, therе being such evidence, the motion to exclude was properly overruled.

[3-6] It was within the discretion of the trial judge to permit the witness Jones to be excused from the rule and to permit him to testify in the case, notwithstanding the rule had been invoked as to all the witnesses, and from this record we cannot say that this discretion was abused. This witness testified that, withоut ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍his making any threats against the defendant, or making him any promises or offering any inducemеnt to get him to make a statement, the defendant confessed to him that he had stolеn the goods. Whether confessions are freely and voluntarily made is a matter of law to be determined by the court. Machen v. State, 16 Ala. App. 170, 76 South. 408. In‘this case, the trial court had the witnesses before him and was in better position to judge the facts than we. His judgment will thereforе not be disturbed.’ Maisel v. State, 81 South. 348. 1 The court very properly excluded the statement’ аs to the whisky and left in the confession as to the theft. The many cases cited by appellant in brief as to the close scrutiny that all courts Should apply to confessiоns when being offered as evidence are here reaffirmed, and also what this court said on former appeal ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of this case. But it is nonetheless the law that when confessions are shown to be voluntary they become evidence which will support а conviction and-sometimes clear a situation which otherwise might remain in doubt. As to what weight will be given to the confession is a question to be determined by the jury.

There is no reversible error so far as the judgment of conviction is concerned; therefore thе judgment of conviction is affirmed. The trial having been had since the 18th day of February, 1920, the cause is remanded for proper sentence under Acts 1920, p. 148: Rogers v. State, ante, p. 175, 83 South. 359; Id., ante, p. 172, 82 South. 785.

Judgment of conviction affirmed; ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍remanded for proper sentence. ,

Notes

Ante, p. 12.