Gidley v. State

• Decision Date: 06 February 1923
• Docket Number: 7 Div. 895.
• Citation: 19 Ala.App. 113,95 So. 330
• Parties: GIDLEY v. STATE.
• Court: Alabama Court of Appeals

95 So. 330

19 Ala.App. 113

GIDLEY v. STATE.

7 Div. 895.

Court of Appeals of Alabama

February 6, 1923

Appeal from Circuit Court, Calhoun County; A. P. Agee, Judge.

Will Gidley was convicted of the offense of having prohibited liquors in his possession, and he appeals. Reversed and remanded.

Lapsley & Carr, of Anniston, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

SAMFORD J.

The evidence as set out in the record is somewhat confusing as to whether the alleged confession was made before the whisky was actually found at the house or afterwards. If the confession was obtained before the whisky was found, it should not have been admitted, because at that time the corpus delicti had not been proven. Braxton v. State, 17 Ala. App. 167 82 So. 657.

The court in determining admissibility of a confession should be careful to ascertain that such confession proceeded from volition, and that it was not superinduced by any influence improperly exerted. If the confession in this case was obtained by reason of the threat of the sheriff that, if defendant did not admit the ownership of the whisky, he would wait and arrest defendant's son-in-law, it should not have been admitted. Carr v. State, 17 Ala. App. 539 85 So. 852.

The question of the gravest moment in this case is the action of the trial judge, with reference to the jury. After the jury had retired for the purpose of considering the case and had remained out "some time," the court sent for the jury again, and had them called into the jury box, and the following occured:

"The Court: Can't you reach a verdict in this case?

"A Juror: No, sir, we haven't been able so far. Judge, we stand 11 to 1.

"The Court: Well, you gentlemen of the jury, I will say this to you: We try these cases, and it is very important indeed, when each side has been heard, for the jury to be able to reach a verdict. When the jury go out into the jury room they go out for the purpose of conferring and consulting together and seeing if it is practicable, as reasonable common sense men, to reach a verdict. The business of the courts cannot be disposed of by mistrials. I can't even suggest-I wouldn't for a minute suggest-for any man to go against his convictions as to what he ought to do in any particular case, or for him to do violence to what his conscience says he ought to do, but the business of juries is to try cases and come to verdicts, if they reasonably can. I am saying all this without any idea in the world how the jury stands, whether there is 11 to 1 for acquittal or 11 to 1 for guilt. I am sorry that was told to me, but I don't know how it is, and I don't suppose anybody else does, except the jury. Now, I am going to ask you to go back and see whether or not it is practicable to reach

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