Read v. State, 71 So. 96

Read v. State

71 So. 96 | Ala. | 1916

SOMERVILLE, J.

(1) One of the veniremen, Walker L. Brooks, was drawn and summoned under the name of Walter. L. Brooks, and was so noted in the copy served on defendant. Defendant seasonably moved for a continuance of the cause on this ground, which motion was overruled. He moved the court to quash the venire on the grounds that the jury list was not properly selected by the commissioners, and that they did not purge the jury box of names illegally placed therein. Defend*672ant’s rights with respect to this venire, no fraud or corruption appearing, were qualified by section 32 of the jury law (Special Sess. Acts 1909, pp. 405, 320), as follows: “If the sheriff fails to summon, or any juror summoned fail or refuse to attend the trial, or there is a mistake in the name of any juror drawn or summoned, none, or all, of these grounds shall be sufficient to quash the venire or to continue the case.”

In the absence of proof to the contrary, it must be presumed that the variance complained of was merely a mistake, and defendant’s motions were therefore properly overruled.

(2) There is a well-defined distinction between inculpatory admissions by a defendant of collateral facts, and confessions, or admissions in the nature of confessions, of actual guilt.

(3) In the former class of cases no predicate of voluntariness need be laid in order to render the admissipns admissible in evidence. — McGehee v. State, 171 Ala. 19, 21, 55 South. 159. Defendant’s several conversations with state’s witnesses, which were introduced against him, were in no sense confessions of •guilt; and, being prima- facie voluntary, they were admissible without the predicate. It is therefore not necessary to consider the sufficiency vel non of the predicates offered.

(4, 5) The chief question presented by the record is whether the testimony of the state’s witness, Jim Thomas, who was confessedly an accomplice, and who testified directly to defendant’s commission of the murder, was corroborated by any other evidence “tending to connect the defendant -with the commission of the offense,” as required for his conviction by section 7897 of the Code. On the theory that there was no such corroboration, defendant requested the general affirmative charge, which was refused by the trial judge. A critical examination of the evidence convinces us that this charge was properly refused. (1) The witness Jack Walker testified that shortly before the killing he saw deceased going down the railroad track, and defendant and Jim Thomas walking along behind him; that the two latter talked for a few minutes; and that defendant then went on and joined deceased, and Thomas came on back and went on to the big road with a gun. (2) The scene of the killing was not a public and frequented place, and defendant was present, as all the evidence shows, and had the opportunity to kill. (3) Defendant made contradictory statements as to his ability to identify the man he claimed he saw shoot the deceased in his immediate pres*673ence. From this testimony and these circumstances, which clearly differentiate this case from the cases of Lindsey v. State, 170 Ala. 80, 54 South. 516, and Thompkins v. State, 7 Ala. App. 140, 61 South. 479, cited and relied on by appellant, the jury may well have implicated defendant in the killing, independently of Jim Thomas’s testimony. On this subject, the trial judge said to the jury: “It is insisted by the defendant that the evidence of the accomplice, Jim Thomas, has not been corroborated. I have carefully considered this question, and I have decided that there is sufficient corroborative evidence of the accomplice, at least for me to submit the question to you. However, the question as to whether this evidence has been sufficiently corroborated to warrant a conviction of this defendant is one entirely within your province, and one for you to determine.”

This was a proper and correct statement, and of it defendant cannot complain.

We find no error in the record, and the judgment must be affirmed.

Affirmed.

Anderson, C. J., and Mayfield and Thomas, JJ., concur.