Whitehead v. State

Decision Date02 April 1918
Docket Number6 Div. 335
Citation16 Ala.App. 427,78 So. 467
CourtAlabama Court of Appeals

Appeal from Circuit Court, Jefferson County; H.P. Heflin, Judge.

Chester Whitehead was convicted of bringing stolen goods into the state, and he appeals. Reversed and remanded.

Allen Bell & Sadler and E.N. Hamill, all of Birmingham, for appellant.

F. Loyd Tate, Atty. Gen., and David W. Fuller, Asst. Atty. Gen., for the State.


The count of the indictment to which the verdict of the jury responded follows the form laid down in the Code for indictments for the offense of "bringing stolen goods into this state," under section 7328 of the Code. Code § 7161, form 25. This count charges that the defendant "feloniously took and carried away in the state of Illinois one automobile of the value of $750, the personal property of Frank Rose, and brought said automobile into the county of Jefferson, in this state, against the peace;" etc. This form first appeared in the Code of 1886, as form 19 (section 4899), under the heading "Bringing Stolen Property into This State," for the offense denounced by section 3793 of that Code, which was in the following language:

"Bringing Stolen Property into This State.--Any person who brings into this state any personal property which he has stolen elsewhere, must, on conviction, be punished as if he had stolen it in this state."

This statute and the form prescribed for indictments thereunder were carried forward into the Code of 1896 without change but in bringing the statute forward into the present Code, as section 7328, it was revised by the code commissioner so as to read as follows:

"Bringing Stolen Property into This State.--Any person
who fraudulently brings into this state any personal property which he knew was stolen elsewhere, must, on conviction be punished as if he had stolen it in this state. (Form 25 [20].)"

While it cannot be doubted that this revision effected a material change of the statute in respect to the elements of the offense, and broadened its scope so as to embrace transactions not within the purview of the original statute it cannot be doubted that one who steals property in another state and brings the stolen property into this state commits the offense denounced by the statute as amended, and that the averments of the indictment quoted above are tantamount to an averment that the defendant fraudulently brought the property into this state knowing that it was stolen. Form 25, which is followed by the count of the indictment under consideration, was brought forward from the Code of 1896 into the present Code, under the following heading: "Bringing Stolen Property into This State.--Section 7328 (5053)." Code 1907, vol. 3, p. 664. The effect of bringing this form forward as applicable to this section of the Code as revised and adopted into the Code of 1907, under the ruling of the Supreme Court, "was a legislative recognition and declaration that the form was sufficient, under the amended statute." Bailey v. State, 99 Ala. 145, 13 So. 566; Coleman v. State, 150 Ala. 64, 43 So. 715; Thomas v. State, 156 Ala. 171, 47 So. 257; Noles v. State, 24 Ala. 672; Wilson v. State, 61 Ala. 151; McCullough v. State, 63 Ala. 75; Smith v. State, 63 Ala. 55; Jones v. State, 136 Ala. 123, 34 So. 236; First Mayf. Dig. p. 422, § 10. The indictment was sufficient to cover any offense denounced by the statute. Weed v. State, 55 Ala. 15, overruling Bryan's Case, 45 Ala. 86, declaring a different rule; Darrington v. State, 162 Ala. 60, 50 So. 396; Arrington v. State, 13 Ala. App. 359, 69 So. 385; Ex parte Arrington, 195 Ala. 694, 70 So. 1012.

The demurrers to the indictment were properly overruled. Resolving doubtful intendments arising from the averments in the pleas of former jeopardy against the pleader must be done on demurrer. It appears that the defendant was indicted in the former case, not for an unlawful conspiracy to steal property in another state and bring it into this state, but for fraudulently bringing into this state an automobile, the property of one McKinley, knowing that it was stolen in the state of Illinois. The indictment in the instant case is for a like offense committed with respect to the property of Frank Rose. It thus appears that the offense the subject of defendant's pleas was a different and distinct offense from the one here charged, and the demurrers to the pleas were well taken and were sustained without error. Johns v. State, 13 Ala. App. 283, 69 So. 259; Id., 195 Ala. 695, 70 So. 1013; Hawkins v. State, 1 Port. 475, 27 Am.Dec. 641; Gorden v. State, 71 Ala. 315; Foster v. State, 39 Ala. 229; Dominick v. State, 40 Ala. 680, 91 Am.Dec. 496; Harrison v. State, 36 Ala. 248; Baysinger v. State, 77 Ala. 60; Gunter v. State, 111 Ala. 23, 20 So. 632, 56 Am.St.Rep. 17; State v. Standifer, 5 Port. 523.

Independent of the evidence showing that the defendant made a confession to the witnesses Groggin and Goldstein, the state offered evidence showing that Rose, the owner of the automobile, the stolen property alleged to have been fraudulently brought into this state from the state of Illinois, with the knowledge that it was stolen, placed his automobile in his garage, at 3816 Rokedy street, Chicago, Ill., on the evening of April 12, 1916, about 6 o'clock, and locked the garage; that on going to his garage the next morning he found that the car had been taken out during the night, and that it was so taken out without his knowledge or consent; that he next saw the car two months later in Birmingham, where it had been sold to the witness Dr. Moore by L.A. Whitehead, a brother of the defendant, through one Hodges, his agent or accomplice; that the serial number on the motor had been changed. This evidence shows the theft of the car, and was sufficient to authorize the inference that it was fraudulently brought into this state by the thief or his accomplices, with a knowledge that it was stolen property, and was sufficient proof of the corpus delicti to authorize the admission of defendant's confession, if the confession was otherwise admissible. Daniels v. State, 12 Ala. App. 119, 68 So. 499; Matthews v. State, 55 Ala. 187; Ryan v. State, 100 Ala. 94, 14 So. 868.

It is the settled rule in this state that:

"Confessions are prima facie involuntary, and it must be satisfactorily shown to the court that they are voluntary--were made when the mind of the accused was free from the influence of hope or fear--before they can be received in evidence. Any menace, or hope excited by encouragement that the prisoner would be more favorably dealt with if he confessed, is sufficient to exclude them." Banks v. State, 84 Ala. 431, 4 So. 382; Fortner v. State, 12 Ala. App. 180, 67 So. 720; Whatley v. State, 144 Ala. 75, 39 So. 1014; Pearce v. State, 14 Ala. App. 120, 72 So. 213.

The rule of exclusion applies, not only to confessions, but to inculpatory admissions in the nature of confessions; that is, directly relating to the facts or circumstances of the crime, and connecting the defendant therewith. McGehee v. State, 171 Ala. 19, 55 So. 159; Watts v. State, 177 Ala. 24, 59 So. 270.

On the other hand, inculpatory admissions as to collateral facts, however incriminating, not in the nature of a confession, are not within the rule of exclusion, and are admissible without preliminary proof that they are voluntary. Macon v. State, 179 Ala. 6, 60 So. 312; Read v. State, 195 Ala. 671, 71 So. 96; Love v. State, 124 Ala. 82, 27 So. 217. The reason upon which the rule excluding involuntary confessions as evidence rests is that they are coerced by the menace of punishment or the excitement of hope, and are presumptively fabricated for the purpose of obtaining benefit or escaping threatened punishment arising from the situation attending the accused. 1 Greenl. Ev. §§219-232.

Where the reason of the rule is absent, the rule is not applicable. Hence we find this exception: Where an involuntary confession or inculpatory admission in the nature thereof leads to the discovery of physical facts which establish the truth of the confession, so much of the confession as relates to the facts thus discovered is admissible, along with the proof of these facts. Stated otherwise:

"Although confessions obtained by threats or promises are not evidence, yet if they are attended by extraneous facts which show that they are true, and such facts go to prove the existence of the crime of which the defendant is suspected, they will be received as testimony; e.g., where the party thus confessing points out or tells where the stolen property is; or when he states where the deceased was buried; or gives a clue to other evidence which proves the case. 1 Wharton. Am.Cr.Law, § 695; 1 Phill.Ev. 412; 1 Greenl.Ev. §§ 231, 232. It is not the entire confession, however, which may be received; it is only so much of it as relates strictly

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