Logan v. State

• Decision Date: 21 October 1948
• Docket Number: 8 Div. 406.
• Citation: 251 Ala. 441,37 So.2d 753
• Parties: LOGAN v. STATE.
• Court: Alabama Supreme Court

37 So.2d 753

251 Ala. 441

LOGAN v. STATE.

8 Div. 406.

Supreme Court of Alabama

October 21, 1948

Rehearing Denied Dec. 16, 1948.

Thos C. Pettus, of Moulton, for appellant.

A. A. Carmichael, Atty. Gen., and Bernard F. Sykes Asst. Atty. Gen., for the State.

SIMPSON Justice.

The appellant prosecutes this appeal from a conviction of murder in the first degree and a sentence of death. It is shown from the evidence that he ambushed the deceased and killed him in his own home with a shotgun, thinking he was a different person.

Counsel for defendant have very diligently presented all questions raised by the record both in oral argument and in able and comprehensive brief, but we are persuaded that no substantial error to the prejudice of the accused intervened pending trial.

We first will observe that no error is shown by the refusal of the court to continue the case or postpone the trial. The crime occurred in May, 1947, and defendant was arraigned and counsel appointed to defend him August 7th. Trial was held August 18th, but his leading counsel, Mr. Pettus, had been privately retained to investigate the case some weeks prior thereto. We will not revise the exercise of the discretion committed to the trial court on the question of a continuance or postponement in the absence of clear abuse, which is not made to appear here. 6 Alabama Digest, Criminal Law, k586.

Nor was there any error in the action of the trial court in qualifying the jury. The relationship of any prospective juror to attorneys representing the state would not be a predicate for disqualification. Code 1940, Tit. 30, § 55; Frost v. State, 225 Ala. 232(4), 142 So. 427; Turner v. State, 15 Ala.App. 19, 72 So. 574.

Likewise, we perceive no prejudice to the defendant in the question propounded to the veniremen by the trial judge, 'Do you believe with your mind or soul or heart that the death penalty should be imposed, that it would be wrong in the event of a conviction?' It is, of course, a good challenge for cause if a juror has a fixed opinion against capital punishment, Code 1940, Tit. 30, § 57, and 'it is safer to adopt, as near as practicable, the statute (§§ 55 and 57, Code, supra) in interrogating the jurors, subject, of course, to an explanation when not understood by the jurors.' Mays v. State, 218 Ala. 656, 657, 120 So. 163, 164. However, a fair appraisement of the meaning and effect of this statement of the court is that it was no more than an effort to make plain to the jurors this statutory basis for their disqualification. The voir dire examination of jurors regarding qualification and the limit thereof is left much to the court's discretion and here we see no abuse. Redus v. State, 243 Ala. 320(18), 9 So.2d 914.

Also free of error, and on the same principle, was the action of the court in permitting the solicitor to ask on the voir dire examination, 'Please consider this addressed to you separately. Do either of you gentlemen have any moral or religious convictions against a verdict of death by electrocution, that is, of course, if the evidence justifies it?' Redus v. State, supra; Underwood v. State, 239 Ala. 29, 193 So. 155.

Much stress is laid upon the introduction of two confessions made by the defendant a few days after his incarceration. These confessions, one verbal and one written, were made about the same time (R. 144), either the same evening or the next day (R. 151), and both asserted that the accused had shot the deceased, Mr. O'Neal Bain. Though counsel urges in brief that there were no sufficient preliminary predicates to permit the introduction of these confessions, we are persuaded from a careful consideration of the record that the position is untenable. It appears that proper predicate was laid for both the oral (R. 137, 144) and the written (R. 139, 155, 172) confessions.

While confessions are prima facie involuntary, they may appear otherwise from the circumstances attending their narration. The duty does rest, in the first instance, on the trial court to determine whether or not a confession was voluntary and unless it so appears to exclude it. But, if there is preliminary proof that no threats were made or inducements offered, or if the circumstances attending the confession disclose its voluntary character, the court in the exercise of a wise discretion will permit its introduction. Reedy v. State, 246 Ala. 363, 368(7), 20 So.2d 528; Taylor v. State, 249 Ala. 130, 135, 30 So.2d 256; Johnson v. State, 242 Ala. 278, 5 So.2d 632.

And, "as the question is necessarily addressed, in the first instance, to the judge, and since his discretion must be controlled by all the attendant circumstances, the courts have wisely foreborne to mark with absolute precision the limits of admission and exclusion.' Hopt v. [People of Territory of] Utah, 110 U.S. 574, 4 S.Ct. 202, 207, 28 L.Ed. 262.' Reedy v. State, supra, 246 Ala. at page 368, 20 So.2d at page 532.

It is now almost axiomatic that the mere fact that the accused was a prisoner in custody of officers of the law at the time of his confession does not render it inadmissible in evidence as involuntary, though made to or in the presence of an officer and in response to his questioning. Smith v. State, 248 Ala. 363, 27 So.2d 495(5); Brooks v. State, 248 Ala. 628, 29 So.2d 4(7).

It was the right of the accused to controvert the predicate evidence preliminary to the introduction of the confession by cross-examination of the State's witnesses or by evidence aliunde, but the State, having established by the preliminary proof the voluntary nature of the confession, was not required to examine every witness present when the confession was made or to array for interrogation every person who might have had access to or conversation with the prisoner during his incarceration in order to remove the prima facie presumption of involuntariness.

The defendant did not testify. His counsel were permitted to cross-examine at length all the predicate witnesses and there is not the slightest inkling that the accused had been subjected to any previous duress or any improper interrogation....