78 Ala. 425 | Ala. | 1885
The rule is clearly settled in Alabama, as elsewhere, that confessions can not be given in evidence against a person charged with crime, until they are first shown to the satisfaction of the court to have been voluntarily made. Any, the slightest menace, or threat, or any hope engendered or en- ■ couraged that the prisoner’s case will be lightened, meliorated, or more favorably dealt with, if he will confess — either of these is enough to exclude the confession thereby superinduced. Any words spoken in the hearing of the prisoner, which may, in their nature, generate such fear or hope, render it not only proper but necessary that confessions made within a reasonable time afterwards shall be excluded, unless it is shown by clear and full proof that the confession was voluntarily made, after all trace of hope or fear had been fully withdrawn, or explained away, and the mind of the prisoner made as free from bias and intimidation as if no attempt had ever been made to obtain such confessions. And when a confession has been once obtained after appliances of hope or fear, any subsequent confession must alike be excluded, until -the prisoner’s mind is fully and clearly disabused in the manner suggested above, and until it is fairly explained to him that the confession previously made can not harm him, nor be given in evidence against him. Less than an entire obliteration of all ground of hope or fear previously engendered will not meet the severe requirements of the law; and trial judges could not well be too strict in the enforcement of this rule. We need not elaborate this doctrine. It has been so fully declared, that further comment is pnnecessary. — Porter v. The State, 55 Ala. 95; Brister v. The State, 26 Ala. 107; 2 Lead. Cr. Cas. 113 ; Redd v. The State, 69 Ala. 255; Kelly v. The State, 72 Ala. 244; 1 Greenl. Ev. § 214. Under these rules, all the confessions of the prisoner proved jigainst him were improperly admitted.
Between the time of the alleged commission of the offense and the trial in the Circuit Court, the prisoner and his wife, Celia Owen, were'divorced, the one from the other. She was offered as a witness against defendant; her competency was objected to, the objections overruled, a.nd she was allowed to. testify. Her testimony did not disclose any conversations she had had with the prisoner, nor any declarations made by him. It related to conduct of the prisoner on the night of the alleged burglary, and afterwards — all during the time they were living together as husband and wife. Some of her statements relate to conduct of his, which would not likely have come to her knowledge in its details, if they had not been husband and wife. As to other portions of her statements, they came to her knowledge merely by the circumstance of her presence, and do not appear to have resulted from the relation she sus
There is a well defined rule of law, that any transaction or communication between husband and wife, which does not on its face appear to have been intended to be public, or to become so, is shielded by the sacredness of the relation from the public eye; and neither is a competent witness to testify as to such transaction or communication, when the interests of the other are involved. This rule rests on the ground of public policy, and stands unchanged, even after the marriage relation is dissolved by the death of one of the parties, or by judicial sentence. When, however, the conduct or transaction is in no sense traceable to their relation of husband and wife and the confidence it inspires, but in its nature is as likely to have occurred before the public as in private, there are authorities which hold that, after the marriage is dissolved, the parties, or survivor, as the case may be, are competent, in civil cases, to testify for and against each other.— Beveridge v. Minter, 1 Car. & P. 364; s. c., 11 Eng. C. L. 421; Edgell v. Bennett, 7 Vt. 534; Wottrich v. Freeman, 71 N. Y. 601; Coffin v. Jones, 13 Pick. 441; Patton v. Wilson, 2 Lea (Tenn.), 101, 112; Stanford v. Murphy, 63 Ga. 410; Brown v. Wood (on statute), 121 Mass. 137; Westerman v. Westerman (on statute), 25 O. St. 500. See, also, Aveson v. Ld. Kinnard, 6 East, 132; Raynes v. Bennett, 114 Mass. 434.
The following cases are variant from the foregoing : Stein v. Bowman, 13 Pet. 209; Robin v. King, 2 Leigh, 140; Terry v. Belcher, Bailey, S. C. 568;. Barnes v. Camack, 1 Barbour, 392; Succession of Anne, 33 La. An. 1317 ; Doker v. Hasler, Ryan & Moody, 198; s. c., 21 Eng. C. L. 416. Consult, also, the following authorities: Woods v. State, 76 Ala. 35; 1 Green 1. Ev. §§ 254, 334, 335, 337; Whart. Or. Ev. § 400. This rule, as applicable to civil cases, is laid down in Gordon v. Tweedy, 71 Ala. 202.
In the case of The State v. Jolly, 3 Dev. & Bat. Law, 110, the doctrine was considered in reference to a State prosecution; and it was held that the husband, though divorced from his 'wife, was incompetent to prove criminal conduct on the wife’s part. No question of confidence, growing out of the marriage relation, appears to have been presented in that case. It was rested on general principles of public policy.
In favor of the North Carolina decision, and of the doctrine of absolute exclusion in State prosecutions, we can well imagine that very embarrassing questions might arise on cross-examination, which would necessarily result in eliciting only garbled statements of fact, or of tearing away the veil, which
Eeversed and remanded.