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SAIELDS v. STATE.

(104 ALABAMA, 85.) SHERIFFS-SEARCH OF VISITORS TO JAIL.-A sherift has no legal authority to use force in searching or examining persons who seek to visit prisoners in the jall, although he may suspect them of crime, or of criminal purposes; but he may require them to submit their persons to a proper and orderly search, or be denied access to the prisoners.

EVIDENCE ILLEGALLY OBTAINED-ADMISSIBILITY OF. However unfair or illegal may be the methods by which evidence may be obtained in a criminal case, it is admissible, ir relevant, where the accused was not compelled to do any act criminating him. self, or where a confession or admission was not extorted from him, or drawn from him by appliances to his hopes or fears.

EVIDENCE ILLEGALLY OBTAINED-ILLEGAL SEARCH. Evidence obtained by an illegal and unauthorized search of one's person is admissible to fix the guilt of a criminal offense upon him, and does not violate a constitutional guaranty that a person accused shall not be compelled to give evidence against himself, or “that the people shall be secure in their persons, homes, papers, and possessions, from unreasonable seizure or searches,” etc.

EVIDENCE ILLEGALLY OBTAINED UNLAWFUL SEARCH-CARRYING CONCEALED WEAPONS.-On a trial for carrying concealed weapons, evidence of the discovery of a pistol found concealed upon the defendant's person by an officer, prior to his arrest, while making a forcible search of his person, is admissible against the defendant, although the search was unauthorized and unlawful.

INSTRUCTIONS_CRIMINAL LAW-REASONABLE DOUBT. A charge to the jury, in a criminal case, that, “If they believe the evidence, they must find the defendant guilty,” is erroneous, and justifies a reversal of judgment, because it does not require belief of the evidence to the exclusion of all reasonable doubt.

Prosecution for carrying a concealed weapon, which resulted in a conviction. The defendant, wishing to see his cousin in the jail of Wilcox county, went to the jail, but, as he started toward the prison part of the jail, halted after being informed

AX. ST. REP., VOL LIII. - 2 (17)

by the sheriff that he could not go into that part of the jail until he had been searched, and was then forcibly searched by the sheriff against his consent. A pistol was found concealed on the defendant's person. The defendant moved, on the trial, to exclude the testimony as to the discovery of the pistol, on the ground that the sheriff had no right or authority to search him, and because of the inadmissibility of such testimony, the search having been made without the defendant's consent or permission. The testimony was admitted, and the defendant excepted. The defendant testified that the pistol was a broken one which he was carrying to the gunsmith to be repaired, and that the search made was against his consent. The court charged the jury that "if they believe the evidence they must find the defendant guilty.” To this charge, the defendant excepted.

Peter M. Horn, for the appellant.

William L. Martin, attorney general, and Virginius W. Jones, for the state.

36 BRICKELL, C. J. The proposition underlying the 87 objections to the admissibility of the evidence of the discovery of the pistol concealed about the person of the defendant, and which is pressed in the argument of counsel, is, that the search was unauthorized and illegal; and, as it was unauthorized and illegal, the admission of evidence obtained by it, to fix the guilt of a criminal offense upon the person searched, is violative of the constitutional guaranty, that the accused shall not be compelled to give evidence against himself; and of the further guaranty, “that the people shall be secure in their persons, homes, papers, and possessions, from unreasonable seizure or searches," etc. Kindred propositions in varying forms, and under varying facts, have been drawn to the attention and consideration of this court: Chastang v. State, 83 Ala. 29; Terry v. State,.90 Ala. 635; Scott v. State, 94 Ala. 80; French v. State, 94 Ala. 93; Sewell v. State, 99 Ala. 183. In neither of these cases was the search, or the mode in which the evidence was obtained, deemed illegal. In Terry v. State, 90 Ala. 635, which, like the case before us, was an indictment for the offense of carrying concealed weapons, the court observed: “We need not say what would be our ruling, if the pistol had been discovered by the officer in a search of the defendant's person, or if the defendant had surrendered the pistol in obedience to the command of the officer having him in charge. The question is not presented, and we leave it undecided.” In the later case, Sewell v. State, 99 Ala 183, a like indictment, the court said: “We presume the objection [to the admissibility of the evidence] is based upon the proposition that the discovery of the guilt was brought about by the unlawful exercise of official authority and power on the part of the constable, and that it would be against public policy, if not an invasion of the constitutional immunity of the citizen, to suffer information BO obtained to be used against the defendant. This case does not call for any decision on that subject, and we declare no rule touching the admissibility of evidence so obtained."

If, as is insisted, the search of the person of the defendant was unauthorized and illegal, the question, a decision of which was heretofore pretermitted, is now unavoidable; and that it was unauthorized and illegal, we cannot doubt.

The sheriff is the jailer, having the legal custody and 38 charge of the county jail, and of the prisoners therein confined. He may commit the custody and charge to a jailer of his appointment, who becomes his deputy or substitute, for whose acts he is civilly responsible: Crim. Code, sec. 4535. Charged with the duty of protecting and preserving the jail, and of keeping the prisoners safely, until of their custody he is relieved by legal authority, of necessity, the jailer, whether he be the sheriff, or a substitute of his appointment, has a large discretion, in determining at what time, under what circumstances, and what persons, not having legal authority, he will permit to enter the jail, or to have access to the prisoners; a discretion it is not contemplated he will exercise arbitrarily or capriciously, but which at last he must exercise according to his own conscience and judgment, uncontrolled by the conscience and judgment of others. If he apprehends injury to the jail, or the introduction therein of things forbidden, or the instrumentalities of escape, or detriment to a prisoner, he may require whoever may seek admission into the jail to submit their persons to a proper, orderly examination or search. The examination or search must be voluntary on the part of such persons. If they do not consent, admission to the jail, or access to the prisoners, may be refused; if they have entered, they may be required to depart. If they persist in remaining, they may be treated as trespassers and ejected, the jailer using no more force than is necessary to eject them. But he is without legal authority by force to search or examine them, or to compel them to submit their persons to search or examination, even though he may suspect them of crime, or of criminal purposes. If, by force, he makes search of their persons, or compels them to submit to it, he becomes a trespasser, and for the wrong is civilly, answerable; and he commits an indictable misdemeanor, the of. fense being aggravated because of his official relation, and the abuse of its rightful powers.

While it is true the search of the defendant was without legal justification, a trespass, and an indictable misdemeanor, we know of no principle or theory upon which the state may be deprived of the right to employ the evidence of a criminal offense thus obtained. As is observed by the supreme court of Illinois, in Gindrat v. People, 138 Ill. 111: "Courts, in the administration of 39 the criminal law, are not accustomed to be over-sensitive in regard to the sources from which evidence comes, and will avail themselves of all evidence that is competent and pertinent, and not subversive of some constitutional or legal right.” The state had no connection with, and had no agency in, the wrong committed by the sheriff. The law appoints the remedy for the redress of the wrong, but the exclusion of the evidence criminating the defendant is not within the scope of the remedy, or the measure of redress. Evidence is not infrequently obtained by methods which are reprehensible in good morals, offensive to fair deal. ing, subjecting it to unfavorable inferences, the party relying upon it must neutralize to entitle it to full credence. And evidence is sometimes obtained under circumstances which meet with the unqualified disapprobation of the courts. The evidence, however unfairly and illegally obtained, is not subject to exclusion, if it be of facts in themselves relevant, except when a party accused of crime has been compelled to do some positive affirmative act inculpating himself; or an admission or confession has been extorted from him by force or drawn from him by appliances to his hopes or fears: 1 Greenleaf on Evidence, sec, 254 a; Commonwealth v. Dana, 2 Met. 329-37; State v. Flynn, 36 N. H. 64; Gindrat v. People, 138 Ill. 111.

The extrajudicial confessions or admissions of a defendant, charged with crime, are received in evidence with a degree of caution, not extended to any other species of evidence. Before admitting them, the court must be satisfied that they were made voluntarily, free from compulsion, or appliances of hope or fear to the mind of the accused. Yet, if a confession or admission be made involuntarily, under circumstances which compel its exclusion as evidence, and from it a knowledge of material relevant facts is derived, these facts are admissible evidence: 1 Greenleaf on Evidence, sec. 231; Brister v. State, 26 Ala. 107; Sampson v. State, 54 Ala. 241. Confessions obtained by artifice or deception or falsehood, however reprehensible and dishonorable, if volun. tary, are also admissible evidence: Wharton on Criminal Evidence, sec. 670; 1 Roscoe's Criminal Evidence, 8th ed., 81; King v. State, 40 Ala. 314; People v. Barker, 60 Mich. 277; 1 Am. St. Rep. 501; Heldt v. State, 20 Neb. 492; 57 Am. Rep. 835. The evidence of an eavesdropper as to statements made 40 by the defendant, when he was free from all influences affecting the admissibility of such statements, has been received. The court said: “The defendant has no cause of complaint, either because, if an eavesdropper, the witness may possibly not have heard all that was said in the conversation to which he testified, or on the ground that earesdropping is disreputable in itself, or was an of fense at common law": People v. Cotta, 49 Cal. 166. The evidence of detectives feigning to be accomplices, obtaining and practicing upon the confidence of the accused, is received; and so is the evidence of spies; the manner of obtaining the evidence is directed to its credibility, not to its admissibility: State v. McKean, 36 Iowa, 343; 14 Am. Rep. 530; Wright v. State, v Tex. App. 574; 32 Am. Rep. 599; People v. Barker, 60 Mich. 277; 1 Am. St. Rep. 501; Gindrat v. People, 138 Ill. 111. In the latter case, the evidence was obtained by an unlawful intrusion by a de tective into, and search of, the dwelling-place of the defendant.

The guaranty of the constitution, that no person accused of crime shall be compelled to give evidence against himself, corresponds to and is drawn from the maxim of the common law, "Nemo tenetur seipsum accusare," and it forever removes from the sphere of judicial investigations any and all compulsion of persons accused of crime, either by subjecting them to physical torture, or to inquisitorial examinations, to which they have been subjected in some countries: 2 Story on the Constitution, sec. 1788. Admissions or confessions imputed to them are inadmissible as evidence, except under the limitations and conditions to which we have referred. It is, as we have seen, of the very esBence of their admissibility, that they should be voluntary, proceeding from the unrestrained volition of the accused. The defendant made no admission or confession; he was passive, the unresisting victim of unlawful violence; and if he had made an admission or confession, its exclusion, because not free and voluntary, would have been unavoidable. It is not that which he has said or done which is supposed to offend the constitutional guaranty, but the independent, unlawful acts of the sheriff, by and through which it was discovered that he bore upon his person the "mute witness” of a criminal offense. We quote with approbation from the opinion of the supreme court of New Hamp

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