Machen v. State

• Decision Date: 26 June 1917
• Docket Number: 8 Div. 490
• Citation: 76 So. 407,16 Ala.App. 170
• Parties: MACHEN et al. v. STATE.
• Court: Alabama Court of Appeals

76 So. 407

16 Ala.App. 170

MACHEN et al. v. STATE.

8 Div. 490

Court of Appeals of Alabama

June 26, 1917

Appeal from Circuit Court, Jackson County; W.W. Haralson, Judge.

Will Machen and others were convicted of the offense of grand larceny, and appeal. Reversed and remanded.

Bouldin & Wimberly, of Scottsboro, for appellants.

W.L Martin, Atty. Gen., and P.W. Turner, Asst. Atty. Gen., for the State.

SAMFORD J.

After the state's witness Campbell had testified to certain facts as shown by a book kept by the steamboat, showing what goods had been unloaded at a certain landing, the defendants' counsel moved to exclude the testimony, which motion the court overruled. This action of the court was not error. The objection and motion were interposed too late. The defendants cannot speculate on what the witness will say and, when his testimony proves unfavorable, object, and have it excluded on motion. Robinson v. State, 8 Ala.App 435, 62 So. 372; Humphreys v. State, 2 Ala.App. 1 56 So. 72; Phillips v. State, 161 Ala. 60, 49 So. 794.

The state, over the objection of the defendant, was permitted to prove certain statements made by the defendant Will Machen in the nature of a confession. It appears that the statements were made under the following conditions: About four or five days after the goods had been stolen, and while a crowd of men were looking for the defendants, the crowd being armed with guns, and a report was abroad, which had come to the knowledge of the defendant, that, when arrested, the defendant would be placed in jail without bond, the defendant, who was hiding out in the river bottom, sent for the witness Jones, who was supposed to be his friend, and who was on a bond for him in another matter. When Jones got to where the defendant was, Jones told the defendant this:

"That, if he would just tell the whole thing, it would be better for him, as it come up like it had; that is, they found the stuff at his place, and was pretty close to him, and I told him I believed I would just tell it."

Jones further testified that the defendant said he would not mind coming in, but knew they would send him to jail under the circumstances, and he did not want to go to jail, and in the conversation Jones promised to help defendant make his bond, or something like that. It was further shown, by the witness Jim Smith, that Machen said that if they would make his bond, and not make him go to jail, he would turn up all the guilty parties in that transaction. Further on in his testimony, Jim Smith testified that Machen again told him that he did not want to go to jail. The confession that was finally testified to by George Jones was as follows:

"He said that Olin Wilbanks and Lige Murphy had taken the stuff, and on Tuesday he moved it. He told me that he had helped to move it on Tuesday night, or a few nights after that, and placed it up at his mother's barn."

It appears from the testimony that the one fear uppermost in the mind of the defendant Machen was that he would be placed in jail without bail, and his desire was, or seemed to be, to secure a bondsman or bondsmen before he would give himself up, or before he would consent to make any statement regarding the crime. The alleged confession was objected to by defendant's counsel, and exception reserved. In passing upon this question, this court cannot do better than to quote from the decision in the case of Wilson...