Welsh v. State, 96 Ala. 92

96 Ala. 92 | Ala. | 1892

McCLELLAN, J.

The act establishing the Gadsden City Court provides that grand and petit jurors shall be drawn, summoned and empannelled therein in the manner provided by law for the drawing, summoning and empan-nelling of such jurors for the Circuit Court of Etowah county. — Acts 1890-91, pp. 1092-1103. The law which obtains in respect of jurors in said Circuit Court is that embodied in sections 4299 et seq. of tbe Code; Etowab county being expressly excepted from tbe operation of tbe later enactment wbicb is noted and set out at pages 131 to 135 of tbe Criminal Code. And tbe objections now made to tbe formation of tbe grand jury wbicb returned tbe indictment under wbicb appellant was convicted are witbin tbe curative influence of section 4445 of tbe Code, and can not be availed of to -reverse tbe judgment below. — Tanner v. State, 92 Ala. 1; Davis v. State, Ib. 20.

Tbe objection now for tbe first time taken to tbe indictment, going to its averments of. tbe names of tbe deceased and defendant, respectively, is without merit.— Wells v. State, 88 Ala. 239.

Equally untenable is tbe objection to tbe order for a special venire, wbicb is based on tbe absence therefrom of a direction to summon citizens of Etowah county to serve thereon. Only citizens of that county were “competent to serve as jurors” on tbe trial of tbe cause, and tbe mandate that tbe sheriff summon “sixty persons competent to serve as jurors for tbe trial of this cause,” See,., Soc., was essentially a mandate to summon only citizens of tbe county.- — Martin v. State, 77 Ala. 1.

Tbe foregoing objections, and many others, to supposed irregularities and insufficiencies apparent on the record, are insisted on here in an assignment of errors in wbicb nearly everything that happened on tbe trial, and nearly every order made, are relied on here to reverse tbe judgment, though none of these matters were at all mooted in tbe court below. There is no semblance of merit in any of these objections ; and we will not cumber this opinion by further • reference to them in detail.

Tbe proposed testimony of tbe witness Warren Lancaster, to tbe effect, or wbicb would have tended to show, that one Lee Lancaster bad admitted or confessed to tbe witness that be, Lee Lancaster, killed Will Welsh, for whose murder defendant was being tried, was tbe merest hearsay, wholly irrelevant a,nd incompetent, and tbe court properly excluded it from tbe jury. — 3 Brick. Dig., p..287, § 592; State v. Duncan, 6 Ired. L. (N. C.) 236; State v. Haynes, 71 N. C. 79.

Tbe definition of a reasonable doubt given by tbe court, and excepted, is in strict harmony with many decisions of this court. — Lundy v. State, 91 Ala. 100; McKleroy v. State, 77 Ala. 95; Lowe v. State, 92 Ala. 28; Ross v. State 92 Ala. 28.

Tbe confessions of tbe defendant introduced at tbe trial appear to have been accurately adduced as made, — “precisely identified,” as tbis idea is expressed in tbe books; at least suck was tlie tendency of tbe evidence in tbat regard. Whether they were deliberately made and accurately proved were matters to be considered by the jury in determining what weight to accord them in reaching a conclusion as to the facts sought to be established by them. The second paragraph of the court’s general charge, to which an exception was reserved, did not take away or fetter the jury’s -right to reach any conclusion they might deem just upon this inquiry, but was only a declaration to them of the view the law takes of deliberately made and precisely identified confessions, namely, that they are among the most effectual and satisfactory proofs of guilt, leaving to them the question whether the confessions adduced in this case were of that character. This part of the charge, we conclude, though not without some hesitation, albeit it appears to have been copied from Mr. Greenleaf’s Commentaries, involved no reversible error. — 1 Greenl. Ev. § 215.

The third paragraph of the charge, as to the manner of weighing and sifting confessions, and declaratory of the jury’s right to believe a part of a confession and disbelieve another part, and of the rules to govern them in accepting as true or rejecting as false confessions in whole or in part, is free from error. — o Brick. Dig., p. 285, § 550.

The fourth charge of the court we think was erroneous, in that it is there declared, inter alia, that what the defendant said against himself in the conversation or statement introduced as a confession “the law presumes to be true because against himself.” There is a sort of presumption of the truth of declarations against interest which the law adjudges as the basis of admissibility. There is also a sort of legal presumption that statements made under the sanction of an oath or of approaching dissolution are true, and this presumption is the basis of the admissibility of sworn testimony and dying declarations. But it extends no further than this. When this office of the presumption has been performed, it ceases to exist. It no longer attends upon evidence when it was gotten before the jury. Once there, it must stand upon its own inherent force and reasonableness, and the jury are neither helped nor hindered with respect to any view of its truth or falsity they may be inclined to take by any legal presumption whatever. The charge was an invasion of the jury’s province; and should not have been given. — Stix & Co. v. Keith, 85 Ala. 465.

Reversed and remanded.