Burns v. State

Decision Date06 October 1932
Docket Number6 Div. 965.
PartiesBURNS v. STATE.
CourtAlabama Supreme Court

Rehearing Denied Jan. 27, 1933.

Appeal from Circuit Court, Jefferson County; H. P. Heflin, Judge.

E. J Burns was convicted of murder in the second degree and he appeals.

Reversed and remanded.

Fort Beddow & Ray, of Birmingham, for appellant.

Thos E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst Atty. Gen., for the State.


The defendant was tried and convicted of murder in the second degree. The organization of the court is shown by the transcript to be in accord with the law and rule 26 of this court. Code 1923, vol. 4, p. 887, rule 26.

The indictment is in Code form and returned in accordance with the provisions of statute. Sections 4527, 4547, and § 4556, form 76; Billingslea v. State, 68 Ala. 486; Rivers v. State, 97 Ala. 72, 12 So. 434; Doss v. State, 220 Ala. 30, 123 So. 231, 68 A. L. R. 712, and authorities there cited.

The record discloses that a venire of one hundred jurors was duly drawn for the trial of defendant and others charged with felonies whose cases were respectively set upon the same day (Code, §§ 8616, 8649; Umble v. State, 207 Ala. 508, 509, 93 So. 531); that the court ordered the sheriff to summon said jurors [section 8619, Code], and that a list thereof and copy of the indictment be forthwith served on the defendant (section 5568, Code), which order was duly returned as executed; that appellant, in his own person and by counsel, was present during all the proceedings of his trial and through to his judgment and sentence, appeal and suspension of judgment pending his appeal (Vertus Frost v. State (Ala. Sup.) 142 So. 427; Melton v. State, 224 Ala. 152, 142 So. 659; Cosby v. State, 202 Ala. 419, 80 So. 803).

The application for continuance in this case was addressed to the sound discretion of the trial court. There was no proof made or evidence offered and exhibited in the bill of exceptions to show that the trial court palpably or grossly abused its discretion in the premises. Knowles v. Blue, 209 Ala. 27, 95 So. 481; Sanderson v. State, 168 Ala. 109, 53 So. 109; Jarvis v. State, 220 Ala. 501, 126 So. 127, and authorities; Richardson v. State, 191 Ala. 21, 68 So. 57; Webb v. State, 135 Ala. 36, 33 So. 487; Bryant v. State, 185 Ala. 8, 64 So. 333; Mosley v. State, 22 Ala. App. 95, 112 So. 811; Creel v. State, 23 Ala. App. 241, 124 So. 507; Traylor v. State, 20 Ala. App. 262, 101 So. 532.

The remark of the court when denying the motion for continuance does not show prejudice on the part of the court; but was merely the means employed of disposing of the matter or suggestion for expedition, at that point of the trial. Biddle v. State, 20 Ala. App. 49, 100 So. 572.

The court had qualified the jury and refused to allow counsel to cross-examine or interrogate each juror personally. The statute placed the right "to examine said jurors as to any matter that might tend to affect their verdict *** under the direction of the court," a matter largely within the discretion of the court. In this there was no error. The court qualified and empaneled the jury in groups of twelve, and counsel were allowed to interrogate the respective groups of jurors, and no special interest or disqualification was disclosed to the court as the basis of the request for or the purpose of an individual inquiry. Section 8662, Code; Rose v. Magro, 220 Ala. 120, 123, 124 So. 296; Alabama Clay Products Co. v. Mathews, 220 Ala. 549, 551, 126 So. 869.

The excusing of jurors was within the sound discretion of the trial court [section 8622, Code], and objections made to the venire (section 8637, Code) do not come within the rule of Doss v. State, supra, and there was no error shown by the record in overruling the motion to quash the venire on such grounds.

The permission or declination on motion of counsel to make an opening statement to the jury and state "his side of the case" is a matter for the exercise of the discretion of the court; and, when permitted, is to be confined to and conducted within reasonable limitation of the court. Pope v. State, 174 Ala. 63, 57 So. 245; Brown v. Leek, 221 Ala. 319, 128 So. 608, and authorities; Handley v. State, 214 Ala. 172, 106 So. 692; Rose v. Magro, supra; Wilson v. State, 21 Ala. App. 35, 104 So. 876. And in the action of the trial court, in declining to permit such opening statement of facts, no reversible error was shown.

Appellant urges error in the admission of the alleged dying declaration of Dr. Goodwin on the ground that the proper predicate had not been laid therefor. The statement of Dr. Carraway was sufficient predicate to authorize the introduction of the statement of deceased to the effect that he was "under a sense of impending death" (Evans v. State, 209 Ala. 563, 96 So. 923), and the witness' narration of events as detailed to him by deceased constituted a continuous transaction that was admissible as a part of the res gestæ (Hanye v. State, 211 Ala. 555, 101 So. 108; Birmingham Macaroni Co. v. Tadrick, 205 Ala. 540, 88 So. 858).

The introduction of the confession of Ogletree, an accomplice of the defendant, the said confession being given by stenographic report, which was taken down immediately after the commission of the crime and in the presence of the defendant who did not deny Ogletree's statement of facts then detailed, is also urged as error. In this, however, there was no error; he was called upon to speak and failed to deny the truth of the statements so made and which tended to show conspiracy. Williams v. State, 81 Ala. 1, 1 So. 179, 60 Am. Rep. 133; Campbell v. State, 55 Ala. 80; Brindley v. State, 193 Ala. 43, 69 So. 536, Ann. Cas. 1916E, 177; Scott v. State, 30 Ala. 503. The general rule is thus stated [16 C.J. p. 652, § 1312]: "Statements or declarations by one conspirator or codefendant, although made after the termination of the conspiracy, are competent against another conspirator or codefendant where they were uttered in his presence and he assented thereto; or where, in some other way, he acted in an incriminatory manner in connection with the statement."

See, also, Bachelor v. State, 216 Ala. 356, 113 So. 67.

In the examination of Chief McDuff a remark was made by the court that he was satisfied the witness was not going to answer the solicitor's question "unless it is true." Later the court withdraw the remark, and, after further examination of that witness, the court expressly instructed the jury as follows: "Gentlemen, I want to tell you not to consider that remark I made a while ago, that Chief McDuff would tell the truth about it. Don't consider that at all; don't let it have any weight. It is for you to say whether he is telling the truth or not, just like any other witness in this case. You are the sole judges as to who is telling you the truth, and not let that have any weight at all with you."

This observation was improper, as the court recognized in his exclusion, and we need not declare whether its influence was or was not eradicable as the case will be reversed on othed grounds and this question would not occur on another trial. This subject was considered in Moulton v. State, 199 Ala. 411, 414, 74 So. 454, and the rule adverted to that each case of this character must be decided upon its own merits depending upon the issues, the parties, and the particular case. Bachelor v. State, 216 Ala. 356, 113 So. 67; Milton v. State, 213 Ala. 449, 105 So. 209; Loeb v. Webster, 213 Ala. 99, 104 So. 25; Owens v. State, 215 Ala. 42, 109 So. 109; Birmingham Railway, Light & Power Co. v. Gonzalez, 183 Ala. 273, 287, 61 So. 80, Ann. Cas. 1916A, 543; Carter v. State, 219 Ala. 670, 123 So. 50; Clinton Mining Co. v. Bradford, 200 Ala. 308, 76 So. 74; Crenshaw v. State, 207 Ala. 438, 93 So. 465; Anderson v. State, 209 Ala. 36, 44, 95 So. 171, and authorities; Tennessee River Nav. Co. v. Walls, 209 Ala. 320, 96 So. 266; Davis v. State, 209 Ala. 409, 96 So. 187; Hanye v. State, 211 Ala. 555, 101 So. 108; Metropolitan Life Ins. Co. v. Carter, 212 Ala. 212, 102 So. 130; Alabama Great Southern R. Co. v. Grauer, 212 Ala. 197, 102 So. 125; Feore v. Trammel, 212 Ala. 325, 102 So. 529.

We are thus brought to consideration of the fact of whether at the time of making confession defendant was under duress, that is, "induced by the flattery of hope" or by "the torture of fear." If so, it should not be introduced in evidence and the preliminary determination is whether or not it is prima facie voluntary or involuntary. If involuntary, it should be rejected by the court; if ascertained by the court to be prima facie voluntary, the evidence should be admitted for the determination of the jury. Fincher v. State, 211 Ala. 388, 393, 100 So. 657; Curry v. State, 203 Ala. 239, 82 So. 489; Owen v. State, 78 Ala. 425, 428, 56 Am. Rep. 40; Stone v. State, 208 Ala. 50, 93 So. 706; Green v. State, 168 Ala. 90, 53 So. 286; Stevens v. State, 138 Ala. 71, 35 So. 122; Hornsby v. State, 94 Ala. 55, 10 So. 522; Birchfield v. State, 217 Ala. 225, 115 So. 297.

It is declared in Fincher v. State, 211 Ala. 393, 394, 100 So. 657, 662, that:

"*** If a confession was procured, not by menace, threat, or hope, but by the mere employment of falsehood, on the part of officers or 'other persons,' such falsehood 'does not alone exclude it' (Curry v. State, 203 Ala. 239, 242, 82 So. 489; Burton v. State, 107 Ala. 108, 18 So. 284; Stone v. State, 105 Ala. 60, 69, 17 So. 114; Levison v. State, 54 Ala. 520, 525; King v. State, 40 Ala. 314; 1 Greenl. Ev., §§ 322, 323, 329); nor does the fact that a confession was obtained by artifice alone exclude it (Brindley v. State, 193 Ala. 43, 69 So. 536, Ann. Cas. 1916E, 177). It is only when such falsehood or artifice amounts to

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