Edgil v. State

• Decision Date: 22 January 1952
• Docket Number: 6 Div. 448
• Citation: 56 So.2d 677,36 Ala.App. 379
• Parties: EDGIL v. STATE.
• Court: Alabama Court of Appeals

Page 677

56 So.2d 677

36 Ala.App. 379

EDGIL v. STATE.

6 Div. 448.

Court of Appeals of Alabama.

Jan. 22, 1952.

Tom D. F. Bevill and Gerald D. Colvin, Jasper, for appellant.

Si Garrett, Atty. Gen., Robt. Straub, Asst. Atty. Gen., and Robt. P. Bradley, Montgomery, of counsel, for the State.

The following charges were refused to defendant:

'6. If after consideration of all the evidence in this case, you reach a point where you are in doubt as to whether the deceased was killed intentionally or accidentally, to have a reasonable doubt after consideration of all the evidence as to whether the deceased was killed accidentally or intentionally, it would not only be your right but your duty to acquit the defendant.

'8. I charge you, Gentlemen of the Jury, that the word Verdict means truth, and a verdict in all instances should be passed upon the truth, therefore, if after consideration of all the evidence in this case you have a reasonable doubt as to the guilt of the defendant you should acquit him, under such circumstances the law would be vindicated.

'9. It is as much the duty of a jury to acquit a defendant who has not been prove guilty beyond a reasonable doubt and to a moral certainty as it is the duty of a jury to convict the defendant who has been proven to be guilty, beyond a reasonable doubt and to a moral certainty.'

CARR, Presiding Judge.

On March 1st, 1934, the dead body of Augustus Ivey was found beneath a railroad trestle near Jasper, Alabama. The trestle was about 90 feet in length and 70 feet in height at its highest point.

According to the testimony of the coroner the injuries found on the body of the deceased were: 'A scar over his right eye or temple, and his left shoulder was broken, the big bone in the shoulder, and he had bruises on his left elbow and his right elbow.'

The officer reported the cause of death to be accidental.

At the May 1951 term of court Steve Edgil and Sam Darty were jointly indicted for the murder of Ivey. The indictment charged murder in the first degree. A severance was ordered, and Edgil was put to trial. He was convicted of murder in the second degree and a punishment of twenty years in the State penitentiary was imposed. This appeal followed.

The court did not abuse his discretion in refusing to grant the request of appellant's counsel to place the State's witnesses in a room apart from the defendant's witnesses. The rule was invoked and the judge gave explicit instructions that the witnesses should not talk among themselves about the case. The record does not disclose that these instructions were in any manner disobeyed or that the rights of the accused were jeopardized by the refusal of the court to accede to counsel's request.

The matter of allowing Horace Ivey to be excused from the rule addressed itself to the sound discretion of the trial judge. No abuse is shown and this appears more certain since Ivey did not testify in the case. Henderson v. State, 1 Ala.App. 154, 55 So. 437; Ledbetter v. State, 34 Ala.App. 35, 36 So.2d 564.

The conviction of the appellant depended in a large degree upon proof of his confession.

With respect to its introduction in evidence three questions are presented for our review: 1. Was the confession voluntarily made? 2. Was it allowed in evidence without sufficient proof of the corpus delicti? 3. Was there error in the manner of its introduction?

The appellant was arrested and placed in the county jail on Thursday afternoon. He remained there constantly and was thus confined when he made the statement of concern on the following Saturday afternoon.

It appears without conflict in the evidence that the accused was questioned by the officers at frequent intervals during the indicated confinement.

Before allowing the statement in evidence, the court permitted counsel for the State and for the defendant to make a very extensive and detailed evidential disclosure of the circumstances which tended to shed light on whether or not the statement was voluntarily made. Several witnesses were examined in respect to this inquiry. The appellant was called to testify at this place in the trial procedure. By agreement of the attorneys, the questions propounded to him at that time could only relate to the matter about which the court was then concerned.

We will not attempt to delineate this aspect of the evidence. Unquestionably an irreconcilable conflict appears.

The testimony of the State's witnesses fully sustained the court in his finding that the appellant made the statement voluntarily.

The testimony of the defendant, and that in his behalf, presents an entirely contrary situation.

Whether a confession proposed as evidence is voluntary or involuntary is a preliminary question to be determined by the trial judge upon a just consideration of the circumstances under which it was made. Burns v. State, 226 Ala. 117, 145 So. 436; McGuire v. State, 239 Ala. 315, 194 So. 815; Moss v. State, 19 Ala.App. 85, 96 So. 451.

The fact that the accused was a prisoner and confined in the custody of the officers did not of itself make the confession involuntary and inadmissible. Burns v. State, supra; Smith v. State, 248 Ala. 363, 27 So.2d 495; Dyer v. State, 241 Ala. 679, 4 So.2d 311; Smith v. State, 253 Ala. 220, 43 So.2d 821; Wilson v. State, Ala., 53 So.2d 559.

In the instant case the court recognized the right of the appellant to present evidence which tended to establish his contention with respect to the circumstances surrounding him at the time the statement was made. This was done on voir dire. Vernon v. State, 239 Ala. 593, 196 So. 96; Faulk v. State, 23 Ala.App. 213, 123 So. 104.

It is not unusual for this inquiry to present conflicting evidence, as in the case at bar. When this occurs and the trial judge comes to the decision that the confession was voluntarily made, great weight must be given to his judgment. It will not be disturbed on appeal unless the appellate court is convinced that the finding and conclusion are palpably contrary to the weight of the evidence. Vernon v. State, supra; Cook v. State, 16 Ala.App. 390, 78 So. 306.

If the trial court admits the confession in evidence, its weight and credence are addressed to the jury. A consideration of the circumstances under which it was made may aid them in reaching this decision. Cook v. State, supra.

We have given due study to the evidence relating to the matter of instant concern, and we are convinced that we should not disturb the judgment of the trial judge. Goodwin v. State, 102 Ala. 87, 15 So. 571; Burton v. State, 107 Ala. 108, 18 So. 284; Johnson v. State, 242 Ala. 278, 5 So.2d 632; Rutland v. State, 31 Ala.App. 43, 11 So.2d 768; Phillips v. State, 248 Ala. 510, 28 So.2d 542.

Brief of appellant's counsel is devoted almost entirely to the insistence that the confession was admitted in evidence without proof of the corpus delicti.

This question is not raised in any of the grounds of objections.

Before introducing the confession which we have discussed hereinabove, the State presented several witnesses who testified concerning voluntary statements the appellant made to them. Each of these declarations was made to the indicated party prior to the time of the defendant's arrest.

In these statements the appellant declared in effect that he killed a man by knocking him off a trestle with a piece of iron.

Leading up to the introduction of one of these statements this is shown by the record:

'Q. How far did you and your family live from where Steve Edgil lived? A. Not too far.

'Q. Half a mile, or a quarter of a mile? A. No.

'Q. On different occasions, at night, did you and other young people go down to Steve's house? A. Yes sir.

'Q. Did you, while you were there----

'Mr. Colvin: I object to all this on the ground that there has been no evidence of the corpus delicti established in this case, and any testimony referring to this defendant, until it has been shown that there was a homicide or anything other than an accidental death is irrelevant, incompetent, immaterial and illegal. There has been no testimony of any death caused by a human agency, and until such has been proven I don't believe any testimony is admissible as against this defendant.

'Mr. Hunter: We will establish the corpus delicti by a confession.

'Mr. Colvin: It is our contention that is not admissible until after the unlawful homicide has been established.

'The Court: Objection overruled.

'Mr. Colvin: We except.'

Following the above quoted the solicitor laid the usual predicate to show the statement was voluntarily made. Then this appears.

'Q. What did you hear him say with reference to having killed a man?

'Mr. Colvin: I object to that on the ground that is hearsay.

'The Court: Objection overruled.

'Mr. Colvin: We except.

'A. He said he killed a man and knocked him off a trussle with a piece of iron.

'Q. He said he killed a man, and knocked him off a trussle with a piece of iron? A. Yes, sir.'

This is the only occasion incident to the introduction of any of the confessions, including the one made in jail, where counsel posed in the grounds of objections the position or contention that the corpus delicti had not been established by the proof.

It is evident that this ground stated in the objection supra cannot be considered as being directed to the introduction of a confession.

It is a familiar rule which provides that the trial court is required only to pass upon grounds of objections which are announced. Those omitted are deemed waived. Smith v. Bachus et al., 195 Ala. 8, 70 So. 261; Young v. State, 32 Ala.App. 233, 24 So.2d 141.

On review by the appellate courts we will not consider grounds which might have been assigned and which would have pointed out some legal objection if assigned. Rules of Practice in Circuit and Inferior Courts, rule 33, Code 1940, Tit. 7 Appendix; Levison v. State, 54 Ala. 520; Watkins v. State, 219 Ala. 254, 122 So. 610; Jones v. State, 29...