Carr v. State
| Decision Date | 29 June 1920 |
| Docket Number | 4 Div. 650 |
| Citation | 17 Ala.App. 539,85 So. 852 |
| Parties | CARR v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.
Victor Carr was convicted of burglary, and he appeals. Reversed and remanded.
Farmer Merrill & Farmer, of Dothan, for appellant.
J.Q Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
The defendant, a white boy 16 or 17 years of age, a crippled paralytic, who walked with a crutch, was indicted and convicted of the offense of burglary; the nature of the charge being that he broke into and entered the store of S.T Saliba. The property alleged to have been stolen was some pennies and cigarettes. The state relied for a conviction principally upon the confession of the accused and upon the testimony of Orlanda Jones, a 14 year old boy, who by his own testimony appears to have been an accomplice of the defendant in the commission of the act complained of.
It was admitted by defendant, when testifying as a witness in his own behalf, that he sold about a box and a half of cigarettes to a Mr. Payne, but he insists that the boy Orlanda Jones, turned these cigarettes over to him to sell, and agreed to divide the proceeds thereof with defendant. On the trial, the defendant stoutly denied that he had anything to do with breaking into the store, or any knowledge in connection therewith, except that on the night of the alleged commission of the offense he and another boy, Grady Lamb, who testified in behalf of defendant, were together and saw the Jones boy with his hands, blouse, and pants full of cigarettes, near the store of Saliba; and it was the theory of the defendant that the boy, Orlanda Jones, committed the offense complained of.
It is earnestly insisted here that the court erred in admitting the alleged confession of the defendant in evidence. The insistence is that no proper predicate had been proven for the introduction of the confession, and that at the time the witness Domingas, the first state's witness to testify, was on the stand and testified to the confession, no evidence whatever of the corpus delicti had been offered. The record shows that Domingas testified: "I saw where the screen wire of the store was out." And immediately after this statement he was permitted to testify, over the objection of the defendant, as to the alleged confession. That the evidence quoted was not sufficient to prove the corpus delicti cannot be doubted. The error, however, in admitting the confession of the defendant at this juncture, if otherwise competent, was cured by the introduction of subsequent proof of the corpus delicti. In other words, if for this reason it be conceded that the confession was inadmissible when offered, it was rendered admissible, so far as this ground of objection is concerned, by subsequently showing the corpus delicti, and the error was cured thereby. Griffin v. State, 76 Ala. 29; Floyd v. State, 82 Ala. 16, 2 So. 683.
This court does not feel called upon to discuss here the principle so often written which holds that, to render confessions and declarations competent evidence in a criminal prosecution, it is necessary that they were freely and voluntarily made, and that such confessions or incriminating declarations should always be received with great caution, and that they are prima facie inadmissible, and that the admissibility of confessions is for the court, but the weight thereof is for the jury. It has often been held that whether a confession was made voluntarily is for the court to determine, and in so determining the court should take into consideration the surrounding condition, situation, and character of the prisoner, and the circumstances under which it was made; and while ordinarily the character of the confession is shown by answers to appropriate questions, the court should look beyond these to the situation and character of the accused, and to all the circumstances surrounding him at the time the confession is made. Such evidence, that of confessions, being prima facie inadmissible, the burden is on the prosecution to establish the competency thereof, by showing on a preliminary inquiry that the mind of the accused was free from improper influence, and from any influence of hope or fear applied by another when he made the confession. In other words, the court in considering this question should be careful to ascertain that the confession proceeded from volition, and that it was not superinduced by any influence improperly exerted, and the court should not permit them, unless they clearly appear to have been made in such manner as to constitute them competent evidence.
A long line of decisions in this state has declared the rule to be that the record must show affirmatively that the confessions were freely and voluntarily made; but later cases declare that this rule is not in accord with our well-recognized rules of practice that on appeal error must be affirmatively shown. Price v. State, 117 Ala. 113, 23 So. 691. In this case the court, through Coleman, J., said:
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