| Ala. | Dec 15, 1884
The American authorities, generally, maintain the principle, that a conviction should not be had on the
We can not assent to the proposition insisted on, that the sufficiency of the proof of the corpus delicti is a question for the court, and not for the jury. G'reenleaf, in the section cited, observes: “ The proof of the charge, in criminal causes, involves the proof of two distinct propositions : first, that the act itself was done; and, secondly, that it was done by the person charged, and by none other — in other words, proof of the corpus delicti, and of the identity of the prisoners The ascertainment that an offense has been co'mmitted, is as essential to conviction, as that the defendant is the guilty agent. Both of these essential propositions are for the determination of the jury, and both must be proved beyond a reasonable doubt. To hold that the court must decide ultimately either of these propositions, would be tantamount to a denial of the constitutional right of trial by jury.
In Matthews v. State, supra, no evidence was offered by the prosecution, other than the uncorroborated confessions of the defendant; and, as on these alone a conviction should not be had, it was held that they should have been excluded. Some preliminary testimony, tending • to show the corpus delicti, should precede the admission of the confessions. The sufficiency of the preliminary proof of the voluntary character of a confession, which the law requires, is that it appear, p7'ima facie, that the confession was voluntary. — Mose v. State, supra ; King v. State, 40 Ala. 314" court="Ala." date_filed="1867-01-15" href="https://app.midpage.ai/document/king-v-state-6507276?utm_source=webapp" opinion_id="6507276">40 Ala. 314. And to render the acts, declarations and conduct of each person, in promotion of, and in relation to the purpose of a conspiracy, admissible against a co-conspirator, “ a foundation must be laid, by proof sufficient, in the opinion of the presiding judge, to establish, prima facie, the existence of such conspiracy.” — McAnally v. State, 74 Ala. 9" court="Ala." date_filed="1883-12-15" href="https://app.midpage.ai/document/mcanally-v-state-6511684?utm_source=webapp" opinion_id="6511684">74 Ala. 9. It is the province of the judge to determine, whether there is testimony sufficient to make it appeal', prima facie, that a crime has been committed. The evidence on which the judge acts, may not necessarily establish the corpus delicti. It may
In this case, there was evidence tending to show a fresh track in the lane leading from the road to the house; that this track, and the track of the defendant, corresponded; that the fire, when first discovered, was burning on the outside, about six feet from the ground, at a part of the house in which there had been no fire during the night; that the fire occurred about midnight, and spread so rapidly that only one bed and bedding were saved. While there was some conflict in the testimony, and there was evidence tending to show that the burning may have been accidental, the evidence tending to show the carpus delicti is sufficient to lay a foundation on which to rest the admissibility of the confessions. .
The previous threats of the defendant, and his declarations in the nature of threats, were, on the same principle, properly admitted. While they ai-e not, of themselves, convincing of guilt, from them, in connection with the other circumstances, if believed by the jury, guilt may be a logical sequence.
The certificate of entry was collaterally and incidentally in issue, and was shown to have been burned. Its real existence was immaterial. If there -was a controversy in respect to the entry and ownership of the land, and the defendant was previously informed and believed that the occupants had a certificate of entry in the house, such evidence is admissible, and may be considered, as tending to show a motive.— Woods v. State, at the present term ; ante p 35. For this purpose, a certified transcript of the certificate is not requisite.
On the record, as first certified, we could not consider the charges asked by the defendant, and refused by the court, because the bill of exceptions did not show they were in writing. The clerk has certified, that the charges copied in the bill of exceptions are in writing, and on file in his office, and eacli is indorsed Refused by the presiding judge. This made the charges a part of the record. — Mobile Sav. Bank v. Fry, 69 Ala. 348" court="Ala." date_filed="1881-12-15" href="https://app.midpage.ai/document/mobile-savings-bank-v-fry-6511147?utm_source=webapp" opinion_id="6511147">69 Ala. 348.
In Bain v. State, 74 Ala. 38" court="Ala." date_filed="1883-12-15" href="https://app.midpage.ai/document/bain-v-state-6511690?utm_source=webapp" opinion_id="6511690">74 Ala. 38, it was held, that a charge requested, in these words, “A probability of tire defendant’s innocence is a just foundation for a reasonable doubt of his
Section 4920 of Code provides: “ When a verdict is rendered, and before it is recorded, the jury may be polled, on the requirement of either party; in which case, they must be severally asked, if it is their verdict; and if any answer in the negative, the jury must be sent out for further deliberation.” The law secures to the defendant a unanimous verdict, and polling the jury is the means provided by the statute of ascertaining that each juror agrees to the verdict. The motives which influenced, or the reasons that governed the juror, can not be inquired into. The statute authorizes the jury to be sent out for further deliberation, only when one or more answer in the negative. The answer of the juror expressed his agreement to the verdict, and thus it was shown to be the joint verdict of the entire jury. — State v. John, 8 Ired. 330.
For the error mentioned, the judgment is reversed, and cause remanded.