Peck v. State

Jun 30, 1906
Versions:41 So. 759
147 Ala. 100
1906 Ala. LEXIS 210
DOWDELL, J.

The demurrer to the indictment upon the ground that the indictment failed to charge that the Southern Railway Company was a corporation was without merit. The indictment charges that the defendant, “with the intent to steal broke into and entered a building, to wit, the depot of the Southern Railway Company, etc., the said depot being the property of the-Southern Railway Company, a corporation.” The point made by the demurrer is that the omission of the words “a corporation” after Southern Railway Com*102pany, where first used in the indictment, was a failure to aver corporate character; but this omission was supplied in the clause that followed as set out above. The circuit court properly overruled the demurrer.

It is sufficient, in an indictment for burglary, to lay the ownership of the building broken into and entered in the person in the possession and occupancy of the building. — Matthews v. State, 55 Ala. 65; Thomas v. State, 97 Ala. 3, 12 South. 409. We need not consider whether there was error in admitting parol evidence of the ownership of the building entered, for, if error, it was error without injury, since it was proven that the depot building broken into and entered was in possession of the Southern Railway Company. — Code 1896, § 4333; Fuller v. State, 117 Ala. 36, 23 South. 688. Possession is a collective fact, to which a witness may testify. — Wright v. State, 136 Ala. 139, 34 South. 233.

The state was permitted to prove the confession of defendant against his objection. The confession sought to be proved was, under the decision of the case of Kelly v. State, 72 Ala. 244, inadmissible. The facts in the cases of Bush v. State, 136 Ala. 85, 33 South. 878, and White v. State, 133 Ala. 122, 32 South, 139, cited by the attorney general, are different from the case at bar, and clearly differentiate the former case from the latter. I-Iere the facts show that the defendant, while a prisoner in the custody of the officer making the arrest, was taken by the justice of the peace who issued the warrants on which the arrest was made and the officer who made the arrest into a room, and the door closed, and, being thus alone with the prisoner, and just before entering upon his preliminary trial, the justice of the peace asked the defendant a question which assumed the defendant's guilt, and in this manner, ‘ the confession admitted in evidence on the trial was evoked. There was evidence tending to show that the defendant was a weak-minded person, and when the question was asked him which assumed his guilt “the defendant commenced crying and stated” (and here follows the confession). It was stated by the witness that no threats were made, nor promises, *103to induce ■ the confession. The time, place, and surroundings of the prisoner, the manner of evoking the confession, and by whom evoked, in the very nature of things, were calculated to unduly influence the prisoner and render a confession under such circumstances inadmissible in evidence against him. And the mere fact that no threats were used or promises made to the defendant, and nothing more said to him than to ask the question which called for the confession, is not enough, under the facts in this case, to affirmatively show that the confession was voluntarily made.

In McQueen v. State, 94 Ala. 50, 10 South. 433, the confession of the defendant ivas made while under arrest, and to the officer in whose custody the defendant was; but the records show affirmatively that the confession was voluntary. The court said in that case: “It is affirmatively shown that the confessions were not made under the influence of threats, promises, or other improper inducements, but were voluntary. (The italics are ours). So, too, in the case of Redd v. State, 68 Ala. 492, the confessions, though made by the defendant to the officer and while in custody of the officer, appearing to have been voluntary, evidence of the confession was held to have been admissible. The principle held in this case was that the mere fact that the confession was made while in custody and in answer to questions asked by the officer is not alone sufficient to exclude the confession; the confession otherwise appearing to have been voluntary. In Miller v. State, 40 Ala. 54, it is said: “A confession is not inadmissible, as is contended because elicted in answer to a question which assumes a prisoner’s guilt. The law seems to be well settled that this, of itself, would not be sufficient to authorize the exclusion of the confession.” — citing Carroll v. State, 23 Ala. 28, 58 Am. Dec. 282. But the judgment of the lower court was reversed for the error of admitting the confession on the facts in that case. The facts in the case of Spicer v. State, 69 Ala. 159, were different from the case at bar. There the confession was made to one who had been left by the *104officer temporarily in charge of the prisoner, and the confessions thus elicted by questions of such person. It was said by the court: “They [the confessions] are affirmatively shown not to have been elicted through the influence of either threats or promises, or other improper appliances [italics ours], and were therefore voluntary.”

There can be no difference in principle between this case and the case of Kelly v. State, supra. There the prisoner was 'interrogated by the magistrate while the preliminary trial was in progress; here the prisoner was interrogated by the magistrate just before entering upon the preliminary trial. Every condition in the one case calculated to unduly influence the prisoner and render his confession involuntary exists in the oher. The confession, we think, was evoked by the employment of improper appliances, and, on the authority of Kelly v. State, supra, should have been excluded.

Reversed and remanded.

Weakley, O. J., and Haralson and Denson, JJ., concur.