CASES

IN THE

SUPREME COURT

OF

ALABAMA,

WILSON V. STATE.

[110 ALABAMA, 1.]

EVIDENCE, CONFESSIONS MADE DURING THE EXAMINATION OF A WITNESS.-If one is called as a witness at an inquest before a coroner, or an officer acting as such, held for the purpose of ascertaining the cause of the death of a human being, and whether anyone was guilty of a criminal act in connection therewith, and is sworn, he not then being arrested nor accused of the crime, and testifies as such under oath, his statements are regarded as voluntary, and may be given in evidence against him on a trial for the murder of such deceased person.

EVIDENCE-STATEMENTS MADE PRIOR TO A HOMICIDE.—If one, on being warned of the presence of another, replies: "That damned little [naming him] had better not bother me," such reply is admissible in evidence against him on a trial for killing the person thus referred to.

During the progwho, against the

Indictment for the murder of one Jackson. ress of the trial the state offered a witness objections of the defendant, testified that about three weeks before the killing and while defendant and several other persons were standing together, the witness heard one of such persons say to the defendant, "Look out, Wilson, Jackson is near," and that defendant replied, "That damned little Jackson had better not bother me." The trial court also received in evidence, against the objection of the defendant, certain statements made by him in giving his testimony on an examination before the cor

oner.

William C. Fitts, attorney general, for the state.

2 BRICKELL, C. J. 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 AM. ST. REP., VOL LV.-2 (17)

twenty 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 3 in evidence against him on the trial is the matter of the first exception.

Though it is apparent that the defendant must at the time of the examination have been suspected, and must have known he was suspected of having perpetrated, or of participation 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 unlawful means, or of the unlawful act of another, they must render a verdict setting forth who the deceased was, and the means or manner of death, and, if discovered, by whose act death was produced. Upon the rendition of the verdict, it is the duty of the coroner to issue a warrant for the arrest of such person. The attendance of witnesses before the jury may be compelled; and it is the duty of the coroner "to summon and examine as a witness any person who, in his opinion, or that of any of the jury,

has any knowledge of the facts." A witness refusing "to answer any questions in relation to the cause of such death, except on the ground that it may criminate himself, is guilty of a misdemeanor," and, on conviction, is subject to a fine of not less than two hundred nor more than five hundred dollars, and may be imprisoned not exceeding three months: Crim. Code, secs. 48014814.

The recital of the bill of exceptions is, that the defendant 4 with other witnesses was called before the coroner and jury and examined. The recital admits of no other interpretation than that the examination was involuntary-in obedience to the summons or command of the coroner. It is incapable of being interpreted as an examination of the defendant at his own request, and as a witness, in pursuance of the statute: Crim. Code, sec. 4473. It seems to have been an unsettled question in England, the decisions varying, whether, if a person accused or suspected had been examined before the coroner touching the crime, his deposition or examination could be given in evidence against him, on a subsequent trial for the commission of the crime. The more recent authorities seem to have settled that such deposition or examination is admissible, especially if the accused was properly cautioned by the coroner: 1 Roscoe's Criminal Evidence, 8th ed., 95; Reg. v. Owen, 9 Car. & P. 83; Reg. v. Colmer, 9 Cox C. C. 506; Reg. v. Wiggins, 10 Cox C. C. 562. In 1 Greenleaf on Evidence, 15th ed., section 225, note a, it is said: "The rule in the United States seems to be that if the person testifying is not under arrest, though he may be under great suspicion at the time, and may be arrested after the examination, yet his testimony given under oath is admissible; but if he is actually under arrest, though it may be without a warrant, his testimony is inadmissible." The subject has been of frequent and elaborate consideration and discussion in the courts of New York, and the doctrine. there prevailing is carefully summarized in People v. Mondon, 103 N. Y. 221, 57 Am. Rep. 709: "When a coroner's inquest is held before it has been ascertained that a crime has been committed, or before any person has been arrested charged with the crime, and a witness is called and sworn before the coroner's jury, the testimony of that witness, should he afterward be charged with the crime, may be used against him on his trial, and the mere fact that at the time of his examination he was aware that a crime was suspected, and that he was suspected of being the criminal, will not prevent his being regarded as a mere witness, whose testimony may be afterward given in evidence against himself.

If he desires to protect himself, he must claim his privilege. But if, at the time of his examination, it appears that a crime has been committed, and that he is in custody as the supposed criminal, he is not regarded merely as a 5 witness, but as a party accused, called before a tribunal vested with power to investigate preliminarily the question of his guilt, and he is to be treated in the same manner as if brought before a committing magistrate, and an examination not taken in conformity with the statute cannot be used against him on his trial for the offense."

The confession of guilt, or the admission of facts having a tendency to establish guilt, made by the accused after he is charged with, or is conscious of being suspected of, crime, is not a species of evidence the common law favors. "Nemo tenetur seipsum accusare," is its inflexible maxim, a shield of protection, so that, as Blackstone puts it, "his guilt be not wrung out of himself, but rather be discovered by other means and other men": 4 Blackstone's Commentaries, 296. Before they are receivable as evidence against him, it must be shown that they were made freely and voluntarily, without the application of hope or fear; without extraneous pressure in either direction from other persons. Made in the presence of threatening circumstances, or under the pressure of calamity when, for ease or freedom, the man is so easily seduced, as different agitations may prevail, to speak falsehood or truth, the law presumes against their admissibility-presumes that they are not a basis upon which a jury can safely render a verdict. Whether confessions or admissions were freely, voluntarily made, is matter of law to be decided by the court; and if, after a consideration of the condition of the accused and of the circumstances under which they were made, there is reasonable doubt of their freedom and voluntariness, the doubt must be resolved against their admissibility: Porter v. State, 55 Ala. 95; Bonner v. State, 55 Ala. 242.

The authorities in England distinguish the examination before a coroner from an examination before a committing magistrate, who is forbidden to administer an oath to the prisoner. The New York authorities exclude the examination before the coroner, if taken while the prisoner was under arrest. The fact that the accused was under arrest, while it excites the vigilance of the court in inquiring into the circumstances attending a confession or admission, and will affect the weight of either before the jury, does not, according to our decisions, render them necessarily inadmissible: Franklin v. State, 28 Ala. 9; Porter v. State, 55 Ala. 95; Redd v. State, 68 Ala. 492. A committing magistrate is with