Ray v. State

• Court: Alabama Court of Appeals
• Citation: Ray v. State, 29 Ala.App. 382, 197 So. 70 (Ala. App. 1940)
• Decision Date: 16 April 1940
• Docket Number: 2 Div. 670.
• Parties: RAY v. STATE.

197 So. 70

29 Ala.App. 382

RAY v. STATE.

2 Div. 670.

Court of Appeals of Alabama

April 16, 1940

Rehearing Denied May 21, 1940.

Appeal from Circuit Court, Hale County; John Miller, Judge.

Lester Ray was convicted of burglary, and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Ray v. State, 197 So. 73.

F. F. Windham, of Tuscaloosa, for appellant.

Thos S. Lawson, Atty. Gen., and Prime F. Osborn, Asst. Atty. Gen for the State.

SIMPSON Judge.

The burglary indictment, in proper form, charged that the defendant (appellant), with intent to steal, broke into and entered the store of Velma Moseley, etc. The store was located in Akron, a small town in Hale County.

The fact of the corpus delicti was sufficiently proven by the evidence of the State, that upon closing the store, the night before the alleged burglary, all doors, windows and openings of the store were shut or locked, and that upon opening the store for business early next morning several sacks of flour and tobacco (in the store when closed the night before) were missing, one of the windows of the store (left closed the night before) was open, and some of the iron bars which latticed the window from the outside (which were intact the night before) had been prized or torn from their fastenings. According to the State's evidence the defendant, on the night (about midnight) of the alleged burglary, was seen, by the town night watchman, near the store, and, by others, at another place in town with a white substance over his clothes, resembling flour or meal. A sack of flour of the identical size and brand as that taken from the store was shortly thereafter found at the home of a negro bootlegger, who testified, at the trial that she had "swapped" liquor to the defendant for it. Other State's witnesses testified that the defendant, at different times and places, confessed his guilt and before the magistrate, on preliminary, "plead guilty." As a predicate for the admission of such confessions, it was proven by the State that "there were no inducements or hopes of reward held out to him (the defendant) to make him talk and no threats made against him," or words of substantially the same effect.

The question of the admissibility of these confessions, and as to their voluntary nature, was exclusively for the court ( Moss v. State, 19 Ala.App. 85, 96 So. 451; Burton v. State, 107 Ala. 108, 18 So. 284; 2nd Wigmore on Evidence, Section 861, p. 216; 102 A.L.R. et seq. p. 605); and we hold that the above quoted predicate and others of substantially like verbiage, as a condition precedent to the admission of the defendant's inculpatory statements, were sufficient under the facts to show their voluntary character. The verbiage of such a predicate does not come within the influence of Carr v. State, 17 Ala.App. 539, 85 So. 852, cited by appellant as having application here. Neither does the Carr case, supra, control the predicate for the confession related by witness Ramey, where he testified that: "I had talk with the Defendant after that in the jail at Akron. There were no threats made against him to get him to talk and no inducements or hopes of reward held out to him to get him to talk. He said he went in there himself. He said he went in the window. He said he used an axe or something to break in. He said he got some flour and tobacco and a little snuff. He said he took the flour home. He didn't say how he disposed of any of it. I talked with him afterwards in jail. I didn't make any threats against him or offer any inducements or hopes of reward to him to get him to talk."

It appears that the defendant and the witness were alone when these confessions were made. Furthermore, the defendant, who was represented at the trial by able counsel, made no objection to this testimony and the point could be regarded as waived. Bradford v. State, 104 Ala. 68, 16 So 107, 53 Am.St.Rep. 24; Lewis v. State, 25 Ala.App. 32, 140 So. 179; Poarch v. State, 19 Ala.App. 161, 95 So. 781. We might add, however, that the urgency of appellant that the quoted predicates were lacking in substantial requirements, suggests the propriety of care on the part of the trial courts as to the admission of such evidence. The fact that the defendant denied that they were voluntary and asserted that the confessions had been influenced or procured by State's witness Ramey under the promise that he (Ramey) would endeavor to get the solicitor and judge...