Meadows v. State

136 Ala. 67 | Ala. | 1902

McOLELLAN, C. J.

The indictment charges that Meadows, the defendant, unlawfully or wantonly killed, disabled, disfigured, destroyed or injured two mules the property of David Walker, etc. The evidence showed that each of the mules was shot, and that one died from its wounds and the other was so injured by its wounds as to lessen its value to the extent of twenty-five dollars. In a conversation between Walker and Meadows the latter in general terms denied his guilt and protested his innocence, saying that he was not guilty, that he had not shot, the mules and he did not know who had shot them. Tie, however, went on further in immediate con■nection to say that lie had shot at the mules four times while they were in his field a few days before one of them was found dead and the other wounded, but shot to scare them. In this conversation Walker called on Meadows to pay him the damages' he had sustained by the shooting of his mules, and Meadows asked for time to see about the matter. First he asked Walker to wait till the next evening and then he wanted a week, and finally told Walker that he wanted time to see if he could get a lawyer cheaper than he could settle with him, and that certain parties in the neighborhood would swear against him and fix the shooting upon him. That part of the statement of Meadows which is to the effect that he shot at the mules, etc., is in the nature of a confession, and its admissibility is to be determined upon the same considerations that obtain in respect of a direct confession of guilt. — Wilson v. State, 84 Ala. 426.

Bearing upon the question wbether this statement was voluntarily made by the defendant, the testimony of Walker was to this effect: That he went to see Meadows a few days after his mules were shot, and told him that he had been informed that he, Meadows, had shot them, that in fact he had a chain of evidence against Meadows upon which he would be convicted if he was prosecuted, that all he wanted was compensation for his mules, or for the one killed and for the injury done to the other, and if Meadows would pay him he would not prosecute him and that would be the end of it; but if he did not pay him. he would go before the grand jury soon to meet with his witnesses', have an indictment returned against Meadows and prosecute him to conviction, and that he Meadows, would have a good opportunity to dig coal. This witness then further testified “that neither he nor any one else made any threats against defendant before or during said conversation or held out any inducements or hope of reward to the defendant to make any confession other than as stated above.’’ Upon this state of case the defendant objected to and moved to exclude all that part of the reply of ’ Meadows to Walker tending to show confession of Meadows because it was not voluntary, hut was said to witness under threats of prosecution or immunity from prosecution.” This objection and this motion were overruled by the could. 'We find no error here. Nothing that Walker said to Meadows was said for the purpose of inducing or coercing a confession. Walker was after money, not a confession. He offered no immunity from ‘ prosecution for a confession. He made no threats of prosecution conditional upon confession being withheld. No purpose, of Walker could he subserved by a confession. He said lie had the evidence upon which a con-victim could and would he had if the money was not paid; and he made no suggestion of benefit or detriment to Meadows dependent upon the latter’s making or withholding confession. Under his statements to Meadows the prosecution was to be undertaken or foregone wholly without reference to a confession by the latter. What Meadows said as to shooting at the mules ivas not responsive to those, statements and cannot he said in any sense to have been drawn out by them. This statement by Meadows was responsive only to the charge of shooting the animals which Walker then made; and surely a confession made upon being charged with an offense without more cannot be said to be made involuntarily. If the making of a charge merely is to be considered as a threat or promise, rarely indeed would confessions be admissible. It is clear to us that the conversation detailed by Walker involved no threat or promise conducive to the confession made, and his further testimony showed affirmativelv that apart from that conversation there was no sucli threat or promise. The court properly admitted the statement of Meadows as to his shooting at the mules.

The further statements of Meadows in that conversation as to wanting time to consider the matter of settling for the mules and to see if he could not get a lawyer, etc., were not in tlie nature of confessions; but at most tbe jury might have found that they were inculpatory declarations, though not intended to be such, and no predicate as to their having been voluntarily made was necessary. — Pentecost v. State, 107 Ala. 81; People v. Hickman, 113 Cal. 80; State v. Bullard, 16 N. H. 139; Fletcher v. State, 90 Ga. 468.

The evidence on the trial tended to establish the following state of facts: Defendant and others were in his field picking cotton when Walker’s mules jumped into the field. Defendant drove them out and as they ran away to a nearby wood, he shot twice at them and one of these shots took effect in one of the mules, the one that survives. Defendant then put up the rails of his fence which had been displaced by tire mules in jumping into or out of the field, and returned to his work picking cotton. He continued to pick cotton for about half an hour, when he quit and went over an intervening hill to the house on the place to see about his own mule, which he had left to graze there. When he got over there he found Walker’s mules again in his field at that place. Neither the house, his own mule, nor Walker’s mules could be seen from the place at which he was picking cotton on account of the hill. When he thus came upon Walker’s mules again in his field, he again fired two shots at them, both of which struck the other mule, the one not wounded by the first shooting, and ultimately produced its death. If the jury found in line with these tendencies of the evidence, as it was open to them to find, they should have acquitted the defendant. The indictment in a single count and without alternative aver-ments charged one offense involving the shooting of the two mules. On the evidence just stated there were two offenses in neither of which were both mules shot. In such case there can be no conviction: The offense charged is not proved. The shooting of the two mules as charged is not proved. The shooting of one mule will not fill the averment. Proof of the shooting of one mule at one time and place and the other at a different and distinct time and place will not suffice. The places need not be. precisely identical and the time need not be precisely the same, nor need each animal have been wounded by tbe same bullet; but there must be such immediate relation between the two acts of shooting as that the last can be said to be in a train of continuation of the first, actuated by a purpose which is common to both and continuing accompanied by effort to effectuate it from and covering the first act to and embracing the second act, as where a person whose crops are being dep-redated upon by two mules shoots one of them and immediately pursues the other in its flight and shoots it also when he comes up with it. — Busby v. State, 77 Ala. 66. But where one of the animals is shot at one time and place, and they both then disappear, leaving the premises because of their being on which the shot was fired, and the person firing the shot then desists from further effort toward them, and returns to his work, and they subsequently are again found in another field or another part of his field and he again comes upon them incidentally and then shoots the other, the offenses areas distinct as if a day or three days instead of an half hour had intervened, and no conviction can be had on such an indictment.- — Burgess v. State, 44 Ala. 190; Thomas v. State, 111 Ala. 51. The intimation in a dictum in Busby’s case, supra, to the effect that in such case conviction could be had for shooting one of the mules is not sound. The court in that part of its general charge to which exception was reserved followed this intimation and instructed the jury that if they believed beyond a reasonable doubt that the defendant shot one of the mules, they should find him guilty, though they might not be satisfied from the evidence that he injured the other mule. This was error. On the principle^ stated above, the court also erred in refusing charges 4, 6 and 7 requested by the defendant. When referred to the evidence charge 9 is also proper. Several of the charges requested by the defendant and refused are, to say the least, misleading in requiring the jury to find that both mules were shot at the same time and by the same act.

The charges given for defendant do not cover all the propositions of those refused. They leave it to the jury to find even on the tendencies of the evidence we have set out above, and assuming the jury should find the facts in line therewith, to conclude that the shooting of each of the mules constituted hut one continuous act, when on that state of facts it is to be declared as matter of law that the first and last acts of shooting Avere separate and distinct and constituted distinct offenses.

We find no error in the rulings of the court which are not here discussed.

Reversed and remanded.