Wilson v. State

• Decision Date: 28 May 1896
• Citation: 20 So. 415,110 Ala. 1
• Parties: WILSON v. STATE.
• Court: Alabama Supreme Court

20 So. 415

110 Ala. 1

WILSON v. STATE.

Supreme Court of Alabama

May 28, 1896

Appeal from circuit court, Russell county; J. M. Carmichael, Judge.

Will Wilson was convicted of murder in the second degree, and appeals. Affirmed.

The appellant was indicted and tried for the murder of Ed Jackson, was convicted of murder in the second degree, and sentenced to the penitentiary for 20 years. Upon the trial of the cause, as is shown by the bill of exceptions, the state introduced evidence tending to show that the defendant had killed the deceased, Ed Jackson, by shooting him with a pistol. Only two rulings of the trial court are brought before this court for review, which are based upon exceptions reserved to the rulings of the trial court upon the evidence. The facts relating to the admission in evidence of the testimony of the defendant on his examination before the coroner are sufficiently stated in the opinion. The state introduced one Vickery as a witness, who testified that about three weeks before the killing, the defendant and three other persons were standing together about 15 feet from the witness' storehouse, in the town of Girard, one night and witness heard one of the persons who was with the defendant say: "Look out, Wilson! Jackson is near." (Jackson was a policeman of the town of Girard.) Witness then testified that he heard the defendant reply: "That damned little Jackson had better not bother me." The defendant moved the court to exclude the testimony of the witness as to what the defendant had said, upon the ground that it was merely hypothetical, and was not a threat, and uttered under the circumstances as described by the witness did not tend to show a state of feeling between the parties. The court overruled this motion, admitted the testimony, and to this ruling the defendant duly excepted.

Wm. C. Fitts, Atty. Gen., for the State.

COLEMAN, J.

The court deems it unnecessary to consider any question other than the one relative to the admission of statements deposed to by the defendant upon his examination as a witness before the coroner's inquest. The record shows that the defendant was examined as a witness before any charge had been preferred against him, and when he was not under arrest. The one question is whether, as matter of law, the statements of a witness must be held to be involuntary, merely because, when made, he was under oath, there being no accusation against him or other person. No authority has been cited in support of the proposition, and we are of opinion none can be found of recent adjudication. Even in those states where the rule prevails that confessions of a party charged with an offense and under arrest are not admissible, it is held that his statements are admissible when made under oath as a witness, there being no charge against him, and he not being in custody. All the authorities cited in the able opinion of the chief justice where the confessions were excluded were cases where the defendant was under arrest at the time they were made. The reasoning of the court in those cases was to show that the custody of the party rendered the confessions involuntary. In this state the decisions are uniform that confessions made by a prisoner in custody, and charged with an offense, although made to an officer in charge of the defendant, are not thereby conclusively rendered involuntarily and inadmissible. Jackson v. State, 69 Ala. 249; Sands v. State, 80 Ala. 201; McQueen v. State, 94 Ala. 53, 10 So. 433. Much less can this court consistently declare that the statements of a witness not accused, and not under arrest, are conclusively involuntary, because made under the sanction of an oath. To so hold would place this court in antagonism to the other courts upon both propositions. "Formerly," says Mr. Roscoe in his work on Criminal Evidence (section 18), "it was doubted whether, if a person who had given evidence before a coroner were afterwards made the subject of a criminal charge arising out of the same facts, his deposition could be given in evidence against him, but in several later cases they have been admitted;" citing the cases. And in the case of Reg. v. Biggadike, Byles, J., admitted in evidence a statement upon oath made by the prisoner voluntarily before the coroner, saying: "The authorities were in favor of the admissibility of the evidence, and he himself had no doubt on the subject." Rosc. Cr. Ev. § 8. The same rule is declared in 2 Whart. Cr. Law, tit. "Confessions," § 690. In 4 Am. & Eng. Enc. Law, p. 180, the text is as follows: "The testimony of a witness before the coroner, such person not being at the time under arrest or charged with the crime, may be used against him on a subsequent trial for the alleged murder of the deceased." Hendrickson v. People, 2 Am. Law Reg. (O. S.) 531. See, also, 3 Russ. Crimes, pp. 411, 414, and notes. By a statute of this state, a defendant, at his own request, is made a competent witness. He has the opportunity to explain or qualify any statement or confession he may have made. There is less reason now why such confessions may not be admitted, subject to the same restrictions as other confessions. The weight of authority and sound principle favor the rule that the statements of a witness before a coroner, given in under oath, not charged with the offense, and not under arrest, there being no constraint, are admissible in evidence against him. On other questions the court concurs in the conclusions of the Chief Justice. Affirmed.

BRICKELL C.J. (dissenting).

The defendant was convicted of murder in the second degree, for the killing of one Ed Jackson, and was sentenced to imprisonment in the penitentiary for a term of 20 years. The case comes before this court on exceptions taken on the trial to the admission of evidence. The killing was in the city of Girard, about 12 o'clock at night. On the next day, a justice of the peace, acting in the capacity of coroner, proceeding according to the statute, held an inquest to ascertain if the deceased came to his death by the unlawful act of another, and, if such was the fact, who was the guilty agent. With others the defendant was examined as a witness before the jury of inquest, and testified to his proximity to the place of killing at the time of its occurrence, that he then had a pistol, and to the declaration of the deceased that George Wilson shot him. The examination was reduced to writing, and subscribed by the defendant, and its admission in evidence against him on the trial is the matter of the first exception.

Though it is apparent the defendant must at the time of the examination have been suspected, and must have known he was suspected, of having perpetrated, or of participating in the perpetration of, the homicide, he was not, so far as is shown by the bill of exceptions, under arrest, nor had any accusation in form of law been preferred against him. The case has not been argued by counsel, and we suppose the point of objection to the admissibility of the examination is that regarding the situation of the appellant, it was not voluntary; that it was under the duress of an oath in the course of a judicial proceeding, the particular object of which was to ascertain whether a criminal homicide had been committed, and by whom it was committed. In the absence of the coroner from the county, or in the event of his inability to act, a justice of the peace has the authority to hold the inquest on the body of a deceased person it is the duty of the coroner to hold, and in this respect has all the powers of the coroner. It is the duty of the coroner, when there is reasonable ground to believe that death has been caused by the unlawful act of another, to summon a jury to inquire into the cause of the death. If, after an inspection of the body and the hearing of evidence, the jury are satisfied that death was the result of...