Fortner v. State

• Decision Date: 21 January 1915
• Docket Number: 301
• Citation: 12 Ala.App. 179,67 So. 720
• Parties: FORTNER v. STATE.
• Court: Alabama Court of Appeals

67 So. 720

12 Ala.App. 179

FORTNER v. STATE.

No. 301

Court of Appeals of Alabama

January 21, 1915

Appeal from Circuit Court, Cleburne County; Hugh D. Merrill, Judge.

Tom Fortner, alias, etc., was convicted of crime, and he appeals. Affirmed.

J.R. Barker and T.H. Shackleford, both of Heflin, for appellant.

W.L Martin, Atty. Gen., and T.H. Seay, Asst. Atty. Gen., for the State.

BROWN J.

Inculpatory confessions, voluntarily made, are admissible as evidence tending to show guilt; and while such confessions are prima facie involuntary, and therefore inadmissible, it is the duty of the trial court, in all cases, before permitting such confessions to be shown, to ascertain that they are voluntary, and on appeal, unless the record affirmatively shows that this duty was not performed by the court, the presumption will be indulged that a proper predicate was laid for the admission of the evidence. Whatley v. State, 144 Ala. 75, 39 So. 1014; Price v. State, 117 Ala. 113, 23 So. 691; Gilmore v. State, 126 Ala. 20, 28 So. 595.

The statement of the defendant to the witness Willie Robinson that he (defendant) had a wife about Whitesburg, Ga., was an inculpatory admission or confession of a fact material to the defendant's guilt of the offense of adultery, and it was proper to allow the state to offer this evidence. Williams v. State, 54 Ala. 131, 25 Am.Rep. 665; Buchanan v. State, 55 Ala. 154; Cameron v State, 14 Ala. 546, 48 Am.Dec. 111; Banks v State, 96 Ala. 80, 11 So. 404; Moore v. Heineke, 119 Ala. 637, 24 So. 374; Bynon v. State, 117 Ala. 82, 23 So. 640, 67 Am.St.Rep. 163.

The statements imputed to the defendant by the testimony of the witness Otwell, as to the endearing terms used by the defendant in speaking of Martha Steel, the woman with whom defendant was charged with living in adultery, and as to defendant's having a wife, were of the same class, and was admissible, as the court correctly held.

There was evidence tending to show that the defendant, a man, and Martha Steel, a woman, lived together in a house rented by the defendant and situated a quarter of a mile from the residence of any other person; that no one else lived with them; that they were seen together often; that they worked together and slept in the same bed, and on several occasions were seen lying close together on the same pallet; that the defendant referred to Martha as his darling and that the defendant had a wife living in the state of Georgia. While there was no positive proof that the defendant and Martha engaged in acts of sexual intercourse, the evidence was sufficient to afford an inference that such was the case, and that there was an agreement or...