Moss v. State

• Decision Date: 13 June 1922
• Docket Number: 4 Div. 717.
• Citation: 19 Ala.App. 14,96 So. 447
• Parties: MOSS v. STATE.
• Court: Alabama Court of Appeals

96 So. 447

19 Ala.App. 14

MOSS v. STATE.

4 Div. 717.

Court of Appeals of Alabama

June 13, 1922

Rehearing Denied June 30, 1922.

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Walter Moss was convicted of a violation of the prohibition laws and he appeals. Reversed and remanded.

Merritt J., dissenting.

Certiorari granted, Ex parte State, 96 So. 450.

Farmer Merrill & Farmer, of Dothan, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

MERRITT, J.

The defendant was convicted under an indictment which charged that he did possess a still, apparatus, appliance, or some device or substitute therefor, to be used for the purpose of manufacturing prohibited liquors or beverages, subsequent to December 1, 1919.

There was no error in the ruling of the court in sustaining the demurrers to the pleas in abatement, and in overruling the demurrers to the indictment. Powell v. State, 18 Ala. App. 101, 90 So. 138; Ricketts v. State, 18 Ala. App. 162, 90 So. 137.

The defendant testified that at the time of his arrest the officers making the arrest shot at him 25 or 30 times, and that he then came back to where the officers were; that he was then handcuffed. He was then asked by the officers, "Where is that damn still," and he said he did not have any, whereupon the officer said, "You are a G_____ d_____ liar; if you don't tell where it is, I will kill you," and that the officer held his pistol to witness' head, and told him to go "where the still is," which he did. The defendant then asked the witness this question, "I will ask you if you were frightened at that time?" The state objected to this question, and then the defendant made known to the court that the witness, if permitted to do so, would testify that at the time he took the officers to the still he was frightened. The court sustained the objection to the question, and to this ruling the defendant excepted. The defendant contends that in this ruling the court committed reversible error, and that under the opinion in the case of Kinsey v. State, 204 Ala. 180, 88 So. 519, and authorities there cited, the witness should have been permitted to answer the question, as tending to throw light on the question as to whether his so-called confession, or rather act in showing the officers the still, was a voluntary and free act, or whether it was occasioned by threats or fear. The holding in the Kinsey Case can have no application to the facts in this case, for the testimony is undisputed here that, following the direction of the defendant, the officers located a still within 30 or 40 yards from the place where this conversation took place; that it was warm where it had just been operated; had a cap, fermenter, 50-gallon barrel, and a flake trough there; that a short distance from the still was found a small quantity of rum or whisky, and a piece of copper pipe or worm. So, conceding that the defendant was frightened, it is the undoubted law in this state that, although confessions are obtained by use of threats, putting in fear, or persuasions, and are not admissible, yet, if the admissions or confessions are attended or followed by extraneous facts corroborating them, such as finding objects where accused stated them to be, so much of the confession as relates to the material facts discovered or corroborated is admissible. Rice v. State, 204 Ala. 104, 85 So. 437; Pressley v. State, 111 Ala. 34, 20 So. 647; Gregg v. State, 106 Ala. 44, 17 So. 321; Banks v. State, 84 Ala. 430, 4 So. 382; Lowe v. State, 88 Ala. 8, 7 So. 97; Murphy v. State, 63 Ala. 1; Brister v. State, 26 Ala. 107.

It therefore is unimportant as to whether the alleged confession was voluntary or involuntary; for, as to other facts than those noted above as being undisputed, they do not come within the scope of the alleged confession.

In view of what is said above, it is also unnecessary to consider the exceptions taken to the oral charge of the court, wherein the court left to the consideration of the jury the question of the voluntary character vel non of the confession. The court, when all of the evidence had been adduced tending to show the circumstances and facts, under which the alleged confession was made, ruled that the confession was admissible and voluntary, and in so passing primarily-and it would seem exclusively on the admissibility of the testimony in this respect-was in line with the following decisions. Bob v. State, 32 Ala. 560; Redd v. State, 69 Ala. 255; McKinney v. State, 134 Ala. 134, 32 So. 726; Hunt v. State, 135 Ala. 1, 33 So. 329.

In afterwards leaving to the jury to say whether under all the testimony in the case the confession so given by the defendant was voluntary, the court was in accord with the following authorities: Young v. State, 68 Ala. 569; Jackson v. State, 83 Ala. 76, 3 So. 847; Burton v. State, 107 Ala. 108, 18 So. 284; Kinsey v. State, 204 Ala. 180, 85 So. 519.

Be these matters, however, as they may, it is clear to us that in all the rulings of the court as regards the alleged confession, the defendant has not been injuriously affected.

Dave Norton, a witness for the defendant, testified that he knew the defendant's general character in the community in which he lived, and that it was good. He was then asked by the defendant if he knew his general character in the community where he lives for possessing or having in possession a still, and also if he knew "his character in the community where he lives for possessing a still, an apparatus, an appliance, or some device or substitute therefor, to be used for the purpose of manufacturing prohibited liquors or beverages." The court sustained the state's objection to each of these questions, after the defendant in each instance stated that, if permitted to answer, the witness would say it was good. In this ruling there was no error. It was wholly irrelevant as to whether the defendant's character was good

or bad for "possessing or having in his possession a still," for that it is no violation of the law for one to have in his possession a still, unless it is to be used for the purpose of manufacturing prohibited liquor.

In his affirmative answer to the question, if witness knew the defendant's general good character, the defendant had the full benefit of the presumption that the law accords to a man of general good character, and that is that, being of such a character, he would not commit such a crime as the one with which he was charged. Stout v. State, 15 Ala. App. 206, 72 So. 762. To permit testimony of the kind sought by the question involved here would be to raise such a presumption, on account of particular conduct, that of not having a still in his possession for a certain purpose, thereby trying appellant on his character in this particular respect, rather than on the fact as to whether under the evidence in the case he was guilty of the particular act charged. The evidence sought is not to show some trait of character involved in the charge against the defendant, which is permissible. See Weeden v. State, 17 Ala. App. 516, 86 So. 130. This was an attempt to prove the defendant's character for the very act for which he was being tried. Neither does the evidence sought, fall within that character of testimony called negative testimony, which has been held permissible under the case of Hussey v. State, 87 Ala. 121, 6 So. 420, and authorities there cited.

The evidence was in conflict, and the affirmative charge was rightly refused.

I think the judgment appealed from should be affirmed.

BRICKEN P.J. (for the majority).

This defendant offered and undertook to prove his general good character as directed to the particular trait of character involved in the nature of the charge against him in this prosecution. The court however, declined to let him show his general character in this respect, and thereby committed error. Eminent writers and repeated adjudications all accord to this view. In Underhill on Criminal Evidence (2d Ed.) § 77, it is said:

"In a criminal prosecution evidence of accused general good character is

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