Redd v. State
69 Ala. 255
Ala.
1881
Check Treatment
SOMEEYILLE, J.

The indictment in this case is for murder, and charges that the defendant “ unlawfully and with malice .aforethought, did kill Lucy Lee by st/rangulation, in this, to-wit, that he ohokecl her to death." When the case was last here on ¡appeal, it was ruled, that the indictment conformed substantially to the form prescribed by the Code, and was sufficiently definite as to the description of the means employed in perpetrating the killing. To this view we still adhere. — Redd v. The State, 68 Ala. 492; Code of 1876, p. 991, Form 2.

The question raised on the organization of the jury was decided adversely to appellant in Kimbrough v. The State, 62 Ala. 248. It was there held, that in cases where some of the regular jurors, constituting a part of the venire served on the prisoner, were necessarily detained because engaged in the trial of another cause, and their names were drawn in the progress of *259the trial at bar, it was not error in the court to order their names to be laid aside and for others to be drawn -in their stead. It was never intended that the dispatch of judicial business should be thus impeded.

So likewise, on the authority of the case last cited, where the whole venire had been exhausted before the completion of the jury, and prior to the return of the absent or detained jurors, we hold that there was no error in the action of the court ordering an additional number to be summoned from the proper class of persons to complete the jury.

The more modern rule, in reference to extra-judicial confessions made by persons charged with crime, has never prevailed in this State, holding, that, in order to justify their exclusion from evidence, they must have been induced by & posiUve promise made or sanctioned by a person in authority — cm officer of the law. —Whart. Cr. Ev. 651. The settled rule of this court is, that all such confessions are prima facie involuntary, and they can be rendered admissible only by showing that they are voluntary and not constrained — or, in other words, free from the influence of fear or hope, applied to the 'prisoner’s mind by a third person. — Murphy v. The State, 63 Ala. 1; Johnson v. The State, 59 Ala. 37; Porter v. The State, 55 Ala. 95; Clark’s Man. Cr. Law, § 2480; Clark’s Cr. Dig. § 326; 1 Brick. Dig. p. 509, § 859. It is no sufficient objection that they are elicited by mere adjurations to speak the truth, for this may be properly construed as advice to assert innocence, as well as to confess guilt. — Aaron v. The State, 37 Ala. 106; King's case, 40 Ala. 314; Whart. Cr. Ev. §§ 647, 672. Nor are confessions rendered inadmissible by the mere fact of being made to sheriffs, constables, jailors, or other officers of the law having the legal custody of the prisoner. — Aaron's case, supra; Whart. Cr. Ev. §§ 647, 649. The true test is, whether, under all the surrounding circumstances, they have been induced by a threat or promise, express or implied, operating to produce in the mind of the prisoner apprehension of harm or hope of favor. If so, whether true or false, such confessions must be excluded from the consideration of the jury as having been’procured by undue influence. — Whart. Cr: Ev. § 673; Porter v. The State, 55 Ala. 95. And it has generally been held, as said by Mr. Wharton, that “' any advice to a prisoner by a person in authority, telling him it would be better for him to confess, vitiates a confession induced by it,” and he cites numerous authorities in support of this view. — Whart. Cr. Ev. §§ 651, 674; Rex v. Drew, 8 C. & P. 140; State v. York, 37 N. H. 175; Vaughan v. Com., 17 Grat. 576; People v. Robertson, 1 Wheeler’s Cr. Cases, 67; Porter's case, 55 Ala. 95, supra; 1 Greenl Ev. §§ 219-220.

So when a confession lias been once obtained through the *260influence of hope or fear, confessions of a similar character subsequently made, as is uniformly held, may be inferred to have originated from the same motive, and in the absence of evidence to the contrary showing that the original influence had ceased, or been dispelled, they are inadmissible. — Whart. Cr. Ev. § 677; Ward v. The State, 50 Ala. 120; Bob v. The State, 32 Ala. 560; Clark’s Man. Cr. Law, § 2480; Porter’s case, (supra), 55 Ala. 95; 1 Greenl. Ev. § 221.

In the light of the above principles, the confessions made by the prisoner to Ferrell, the sheriff, should have been excluded from the jury. They seem to 'have been made at a late hour of the night, while the defendant was in custody, and to an officer of the law. The prisioner had been advised of the fact that a mob was gathering in town for the purpose of rescuing him from the jail where he was confined. ILe knew that a guard of eight or ten persons had been summoned to protect him, one of whom had asked him “ whether he was afraid of a mob,” to which he had replied in the negative. The sheriff himself, in presence of a half dozen of the guards, informed him that he was in a bad fix,” and in reply to a question put by the prisoner, had told him that sometimes, in cases of assault and battery emd similar eases, it was best to plead guilty.” Thereupon followed the confessions to which objection was taken. They were obtained, we think, under the combined influence of both hope and fear, and were, improperly admitted.

Next morning other confessions of a similar character were made to the jailer, Tucker, when he went up to feed the prisoners, which seem to have been elicited by a questipn put by him to the prisoner, asking whether he (the prisoner) had anything to say to him (Tucker). There is no evidence tending to prove that the influence exerted upon the'mind of the prisoner by the events of the previous night had beeir removed. These confessions were, in our judgment, also improperly admitted.

It is a well established maxim of the law, that the admissibility of evidence is always a question to be determined by the court, and its weight or credibility is for the determination of the jury. It is for the court, therefore, to say whether the confessions of a prisoner are voluntary or iiivolmitary, and this question being judicially settled can not be reviewed by the jury. Hence a charge is erroneous which submits to them the decision of this legal question, and should, for that reason, be refused. The seventh charge requested by the prisoner was liable to this objection. — Bob. v. The State, 32 Ala. 560; Matthew’s case, 55 Ala. 65.

There is no conflict whatever between this principle and the further one, which is equally well settled, that after the con*261fessions, in a given case, have been admitted, the jury may consider tbe circumstances under which the confessions were -obtained, and the appliances by which they were elicited, including the situation and mutual relation of tbe parties, in exercising their exclusive prerogative of determining the credibility of the evidence, or the weight to which it is properly entitled in controlling the formation of the verdict. — Brister’s case, 26 Ala. 107; Matthews v. The State, 55 Ala. 65.

For the error of the court in admitting the confessions of the prisoner made both to Ferrell and to Tucker, its judgment is reversed and the cause remanded.

In the meanwhile an order will be.made that the prisoner be held in legal custody until discharged by due course of law.