Meinaka v. State

¶1All that we can affirm of the inducements held out to the prisoner is, that he was importuned to confess if guilty, and not to confess if innocent. The reasons offered in the latter category why he should remain firm, and abstain from confession, were quite as strong and controlling, *56as were those offered in tbe former to induce him to confess. As was said in Aaron’s case, 37 Ala. 115, “to suppose that tbe prisoner was influenced by tbe declaration to make tbe confession, is to concede bis guilt; for, in no other contingency, was be advised to confess. The prisoner, if innocent, was warned not to say be bad done tbe deed, in language equally as strong as that which sought bis confession if guilty.” Tbe Circuit Court did not err in allowing tbe prisoner’s confessions to be given in evidence against him.

¶22. Tbe confessions proved by Dr. Thomas are excepted to, on the alleged ground that proof was not made to tbe court, before evidence of these confessions was received, that no inducements were offered to tbe prisoner to make them. Tbe record is silent on tbe question, whether such proof was or was not made in immediate connection therewith. Tbe objection to tbe testimony is general, specifying no ground. It rests alone on tbe alleged failure of tbe record to affirm that such preliminary proof was made.' We do not think this exception well taken. It is shown that tbe presiding judge well understood tbe rulé; for a lengthy examination of witnesses, whose testimony related to this subject, was bad before any of tbe confessions were allowed to go before tbe jury. If tbe attention of tbe court bad been specially called to the question, we have no doubt tbe record would have been made to show affirmatively that such proof was offered.

¶3Another view: This witness did not propose to testify to confessions made specially to him. His language was, be “ beard prisoner talking to some of tbe crowd about tbe killing.” What this witness was asked to testify, was what prisoner said “ about the killing,” in this conversation. Tbe Circuit Court bad tbe case before it; bad beard much proof on the subject of inducements and threats; bad previously beard tbe testimony of J. Munroe Fuller, who testified that, on the day on which tbe alleged confessions were made, which it was proposed to prove by Dr. Thomas (tbe day after prisoner was carried to Crawford), be, Fuller, “ bad charge of tbe prisoner, and suffered nobody to talk to him about the matter of tbe confessions, without witness’ permission.” He also testified that, during tbe time be bad prisoner in charge, be, tbe prisoner, bad two spasms, or epileptic fits. Up to this .time, tbe proof was very full that no inducements which tbe law can regard bad been offered to tbe prisoner to confess. Dr. Thomas was called to tbe prisoner when be bad tbe fits; and it was then be “beard the prisoner talking to some of tbe crowd about tbe killing.” These were tbe confessions which it was proposed to prove by this witness. Tbe record strongly tends to show, thal the confession *57proved bj Dr. Thomas was part and parcel of the identical confession previously proved by other witnesses; before the introduction of which, very ample preliminary proof was made to the court, that they were voluntary, we do not feel at liberty to find, on the recitals of this record, that the court received in evidence the confessions of the prisoner proved by Dr. Thomas, without proper preliminary proof that they were voluntarily made. It is our duty to make every reasonable intendment; to indulge every reasonable presumption, in favor of the correct ruling of the Circuit Court, which the record does not affirmatively repel. Error is not presumed, but must be proved by the record. — 1 Brick. Dig. 781, §§ 118, 120.

¶43. Defendant was shown to be a butcher by trade, and, at the time, had his home at Opelika. About a month before the homicide, he had visited Crawford, and the residence, near by, of Lyon, the deceased, taking with him a rope and whip. While there, he wished to purchase a beef of witness, who lived at the same place with deceased; but did not purchase. The prisoner’s counsel proposed to prove that prisoner made said visit, carrying the rope and whip, and what he said at the time was the purpose of his visit. The prosecuting counsel objected to the introduction of this evidence, and a discussion grew up on its admissibility. The court was at first inclined to rule it out, but, after the argument, permitted these things to be proved. The bill of exceptions says: “There were several earnest arguments from defendant’s counsel, to show that the judgment of the court was erroneous, and that the evidence was proper to show why the prisoner was there — that it showed he was there on legitimate business, etc. During a colloquy between the court and defendant’s counsel, as to the legality of this evidence, the court, by way of meeting the argument addressed to the court, remarked to the counsel, in the hearing of the jury, ‘If he was a conspirator, and was down there looking around, nothing would be more natural than for him to say he went down to buy a beef.’ To which remark of the court, made in the hearing of the jury, the prisoner excepted.”

¶5In the case of Phillips v. Beene, 16 Ala. 720, an attempt was made to have a review of a remark made by the circuit judge, pending a trial before him, but which did not appear to have been given in charge to the jury. Commenting on it, this court said: “It may have been insisted on by the counsel, as an abstract proposition of law, and the court, may have differed with him; but it cannot be seriously contended, that every expression of opinion by the court, during the progress of the trial, if erroneous, shall furnish ground for reversal. *58Such opinion must, in some way, influence tbe result of tbe cause, or be supposed to do so, by being given in charge to tbe jury, or by a refusal to charge, or by being connected with tbe exclusion or admission of tbe evidence.” In tbe present case, it is manifest tbe remark was not intended for the jury. It was made, as one means of testing tbe admissibility of tbe evidence. It did not probably influence tbe jury; and if tbe prisoner’s counsel feared it would, be should have asked tbe court to inform tbe jury that they should not be influenced by it. If this request bad been made, and tbe court bad refused to so instruct tbe jury, we will not say this would not have been error. We cannot, however, review every casual remark that may be made by tbe presiding judge pending tbe trial — made, probably, by way of illustrating an argument — unless, upon a charge given or refused, such remark is, in effect, made part of tbe court’s instructions to tbe jury.

¶6In what we have said, we do not wish to be understood as sanctioning any practice, by which tbe presiding judge may indicate a preference of one party, or bis asserted rights, over another, or of tbe credibility of one witness over another, or by which any right which tbe law sanctions or guaranties may be disparaged. Tbe duty of tbe presiding judge is performed, when be declares tbe law on tbe questions legitimately presented. Tbe facts, tbe credibility and weight of tbe evidence, and its application to tbe principles of law given in charge by tbe court, are purely for tbe jury. An invasion by tbe court within tbe domain thus assigned to tbe jury, equally with an assumption by tbe jury of tbe powers of the court, has no sanction in tbe law. We have indulged in these remarks, to prevent a misapprehension of tbe principle of our decision, announced above. We find nothing in tbe present record which tends to show that tbe circuit judge, in tbe trial of this cause, invaded the province of tbe jury.

¶7Tbe other exceptions reserved were not pressed in argument, and we think there is nothing in them.

¶8Tbe judgment of tbe Circuit Court is affirmed.