Ward v. State, 50 Ala. 120

Ward v. State

50 Ala. 120 | Ala. | 1874

BRICKELL, J.

1. The indictment is in substantial conformity to the form prescribed by the Code. This form authorizes laying the offence in the disjunctive; and however objectionable such air allegation at common law, it must be deemed sufficient when authorized by statute.

2. It is certainly true, that an indictment for burglary must allege correctly the ownership of the house broken and entered. This indictment contains an averment,, of ownership ; but it is insisted that because of the punctuation adopted by the pleader, the averment of ownership can be referred only to the shop, storehouse, warehouse, or other building, and not to the dwelling-house. A semicolon is interposed between the word “ dwelling-house,” and the succeeding words, “ or into a shop, storehouse,' warehouse, or other building of William Harris.” Grammatically, a semicolon indicates a separation between *123parts or members of a sentence, more distinct than that marked by a comma; and it may be that the sentence of the indictment, grammatically construed, would confine the allegation of the ownership to the shop, storehouse, warehouse, or other building. Originally, pleadings in court, civil and criminal, were delivered orally, and apprehended by the ear, and not by the eye, which alone takes cognizance of punctuation. In practice at this day, though the pleadings must be in writing, and the accused is entitled to a copy of the accusation against him, he generally derives his knowledge of the charge, and the manner in which it is preferred, from the reading of the indictment when he is arraigned, or put on trial, and not from an inspection of it. Hence, false grammar, or ill punctuation, cannot be regarded in the construction of, or as vitiating an indictment. Commonwealth v. Wright, 1 Cushing, 46. The allegation of ownership in this indictment must be considered as referring to, and embracing the dwelling-house, as well as the other buildings. Thus considered,.it is sufficient.

3. The rule as to the admissibility of a prisoner’s confessions, is well understood. Before they can be received, it must be shown that they were voluntary : that is, made without the appliance of hope or fear, by any other person. Whether the confessions are voluntary, the court must determine, upon consideration of the age, condition, situation, and character of the prisoner, and the circumstances under which they were made. 1 Green. Ev. § 219; Brister v. State, 26 Ala. 107. If the confessions had been made to the bailiff, immediately on his statement to the accused, that if he would confess the offence, and tell where the bacon was, he should be turned loose, it would scarcely be contended they should be received in evidence. They would be regarded as springing from the hope of release from imprisonment, and from criminal accusation, promised by the declarations of the bailiff. We cannot say that the hope thus inspired was not operating on him, when he made the confession on the next day, and during the continuance of the arrest. So far as the record discloses, nothing occurred to remove or diminish it. The persons present were anticipating his confession on the day it was made; for it was said among them, and most probably in the hearing of the prisoner, he was about to confess. The bill of exceptions discloses no fact, on which the confession could have been anticipated, except as the result of the promise previously made to the accused. When the confession was made, the prisoner was taken into a room by the bailiff, and there in the presence of a preacher, who told him, “It was right to tell the truth, and it was best to tell the truth,” made the confession given in evidence. Whether the prisoner said he would or *124not confess, is not shown; but the magistrate was called to hear the confession, and it was made. The accused having been committed, on the next day, as he was being carried to jail, “ began to confess again,” but was prevented by threats from one charged with the same crime. The inducement to the accused to confess guilt, whether guilty or innocent, was the highest which could have been offered. If he would confess, and tell where the bacon was, he was to be turned loose. Whether the confession was true or false — whether he was guilty or innocent, the benefit of the confession to him was to be the same. This inducement is held out by one having authority— the officer having him in custody. Confession following promises or threats, made by one having authority over the prisoner or prosecution, are jealously examined, and sometimes rejected, when, if the promise or threat had proceeded from one not having such authority, they would be received. Mr. Greenleaf says: “ The authority known to be possessed by those persons, may well be supposed both to animate the prisoner’s hope of favor on the one hand, and on the other to inspire him with awe, and in some degree to overcome the powers of his mind.” 1 Green. Ev. § 222.

In view of all the circumstances attending the prisoner’s confessions, we are not prepared to say they were voluntary, but incline to the opinion that they resulted from the hope of release inspired by the bailiff’s promise. The court therefore erred in admitting them; and for this error, the judgment is reversed, and the cause remanded. The prisoner will remain in custody until discharged by due course of law.