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shire, in State v. Flynn, 36 N. H. 64: "It seems to us an founded idea that the discoveries made by the officers and their assistants, in the execution of process, whether legal or illegal, or where they intrude upon a man's privacy without any legal warrant, are of the nature of admissions made under duress, or that it is evidence furnished by the party himself upon compulsion. The information thus acquired is not the admission of the party, nor evidence given by him, in any sense. The party has in his power certain mute witnesses, as they may be called, which he endeavors to keep out of sight, so that they may not disclose the facts which he is desirous to conceal. By force or fraud, access is gained to them, and they are examined, to see what evidence they bear. That evidence is theirs, not their owner's. If a party should have the power to keep out of sight, or out of reach, persons who can give evidence of facts he desires to suppress, and he attempts to do that, but is defeated by force or cunning, the testimony given by such witnesses is not his testimony, nor evidence which he has been compelled to furnish against himself. It is their own. It does not seem to us possible to establish a sound distinction between that case, and the case of the counterfeit bills, the forger's implements, the false keys, or the like, which have been obtained by similar means. The evidence is in no sense his.

The case of Commonwealth v. Dana, 2 Met. 329, was of the Beizure of lottery tickets illegally kept for sale. The seizure was made under a search warrant asserted to be illegal and void. The court sustained the validity of the warrant, but in answer to the objections proceeding on the invalidity of the warrant, and the consequent illegality of the search, said: “Admitting that the lottery tickets and materials were illegally seized, still this is no legal objection to the admission of them in evidence. If the search warrant were illegal, or if the officer serving the warrant exceeded his authority, the party on whose complaint the warrant issued, or the officer, would be responsible for the wrong done; but this is no good reason for excluding the papers seized as evidence, if they were pertinent to the issue, as they unquestionably were. When papers are offered in evidence, the court can take no notice how they were obtained, whether lawfully or unlawfully; nor would they form a collateral issue to determine that question. This point was decided 42 in the cases of Legat v. Dollervey, 14 East, 302, and Jordan v. Lewis, 14 East, 304, note; and we are entirely satisfied that the principle on which these cases were decided is sound and well established.”


We adhere to the proposition to be extracted from the authorities to which we have referred, that however unfair or illegal may be the methods by which evidence may be obtained in a criminal case, if relevant, it is admissible, if the accused is not compelled to do any act which criminates himself, or a confession or admission is not extorted from him, or drawn from him by appliances to his hopes or fears. The objections to the admissibility of the evidence were properly overruled.

The instruction given the jury is erroneous. I doubt the propriety of such an instruction in any criminal case, whether it be of felony or misdemeanor. There can be but little of necessity for it, and it seems to me, the better practice is for the court to state the law, leaving the effect of the evidence wholly to the consideration and determination of the jury. Such instructions have, however, received the approval of this court, and I yield to precedent, whatever of doubt I may have as to their propriety. If such an instruction be given, it must not be expressed in the terms which would be appropriate in a civil case. A preponderance of evidence, though it may not leave the minds of the jury free from reasonable doubt, requires a verdict in a civil case. But, in criminal cases, there must be the exclusion of all reasonable doubt to authorize a conviction. "Neither a mere preponderance of evidence, nor any weight of preponderant evidence is sufficient for the purpose, unless it generates full belief of the fact to the exclusion of all reasonable doubt": 3 Greenleaf on Evidence, sec. 29. This marked difference between the quantity of evidence which will support a verdict in civil and criminal cases must be observed in instructing the jury. The evidence may have been believed, and yet it may not have excluded from the minds of the jury all reasonable doubt. As was said by Stone, C. J., in Rhea v. State, 100 Ala. 119: “Believing from the testimony that the facts exist is not enough. The belief must be BO strong as to leave no reasonable doubt of its truth": See, also, Pierson v. State, 99 Ala. 148; Heath v. State, 99 Ala. 179.

For the error in this instruction; the judgment must 43 be reversed and the cause remanded; the defendant will remain in custody until discharged by due course of law.

Reversed and remanded.

EVIDENCE ILLEGALLY OBTAINED, ADMISSIBILITY OF.Courts do not pause in the trial of a case to open up a collateral Inquiry upon the question of whether a wrong has been committed in obtaining information possessed by a witness. One who is in no way responsible for a tort by which information is obtained may introduce evidence of the facts so ascertained, althougb trespass bas

been committed by the witness in obtaining the information: Cluett v. Rosenthal, 100 Mich. 193; 43 Am, St. Rep. 446, and note.

ARREST- SEARCH OF PRISONER.-A prisoner may be law. fully searched, against his will, for evidence of his guilt, which it found, may be used against him: Rusher v. State, 94 Ga. 363; 47 Am. St. Rep. 175, and note; Ex parte Hurn, 92 Ala. 102; 25 Am, St, Rep. 23, and note.

INSTRUCTIONS-CRIMINAL LAW-REASONABLE DOUBT.Instructions, in a criminal case, must require belief of the evidence to the exclusion of all reasonable doubt before the jury can convict: See monographic note to Burt v. State, 48 Am. St. Rep. 577, OD reasonable doubt.


(104 ALABAMA, 68.] CRIME AGAINST NATURE-ATTEMPT-INDICTMENT.-An indictment charging that the defendant, "against the order of nature, attempted to carnally know a certain beast, to wit, á cow,” is suti. cient, without stating any particular act constituting the attempt.

EVIDENCE-CONFESSIONS-ADMISSIBILITY.-In criminal cases, confessions are prima facie inadmissible, and will not be received in evidence until it is shown to the court that they were voluntarily made, unless the objection is waived.

EVIDENCE-CONFESSIONS—WAIVER OF PROOF AS TO THEIR BEING VOLUNTARY.-1n criminal cases, where confessions are offered in evidence, and the defendant objects that such evidence 18 "incompetent and illegal," the court ought to require satisfactory proof that the confessions were voluntarily made before admitting them. Such objection is not so general as to waive the required preliminary proof.

EVIDENCE CONFESSIONS-ADMISSIBILITY-CORPUS DELICTI.-Confessions are not admissible in evidence, in a criminal case, until the corpus delicti has been proved.

Indictment for an attempt to commit the crime against nature, followed by a trial and conviction. The indictment ran as follows: "The grand jury of said county charge that before the finding of this indictment that Wallace Bradford, against the order of nature, attempted to carnally know a certain beast, to wit, a cow, against the peace," etc. The second count was the same as the first, except that the beast therein referred to was a heifer. This indictment was demurred to, on the ground, among others, that it stated no facts showing that an attempt was made to commit the crime against nature. The demurrer was overruled. A witness for the state, after testifying to facts tend. ing to show the guilt of defendant as charged, further testified that he was standing at his lot gate when the defendant came out of the stable following the heifer, with his private parts exposed. The solicitor for the state then asked the witness the following question: “If there was any conversation between you and the defendant, as to what he had been doing, just after he came out of the stable, state what the conversation was.” This question the defendant objected to on the ground that it was "irrelevant, immaterial, incompetent, and illegal,” and because the state had failed to show that the crime charged in the indictment had been committed. The objection was overruled. The witness then answered: “When the defendant came out of the stable, I showed him, and asked him what he had been doing, and he said, 'Well, you have caught up with me.'The court denied a motion to exclude this testimony from the jury. The defendant moved the court to set aside the verdict of guilty, on thr. ground, among others, that the jury did not deliver their ver. dict to the clerk of the court, but to some person not authorized by law to receive it. This motion was overruled, and the defendant appealed.

T. C. Sensabaugh, for the appellant.
William L. Martin, attorney general, for the state.

70 HEAD, J. There is no valid objection to the indictment in this case: Jackson v. State, 91 Ala. 55; 24 Am. St. Rep. 860; Clark's Manual of Criminal Law, sec. 274, and cases cited.

The defendant's objections to the introduction of his confessions were based upon the grounds that the evidence was irrelevant, immaterial, incompetent, and illegal, and because the state had failed to show that the crime charged in the indictment had been committed. The question is, whether these were sufficient to raise the objection that the confessions were not shown to have been voluntary; or, in other words, whether the prisoner waived the required preliminary proof by the generality of his objections. The rule is well recognized that confessions in criminal cases are prima facie inadmissible; and unless waived, will not be received until the court, proceeding with great care and caution, is made satisfied by evidence that they were entirely voluntary. See the strong language used in following cases: Bonner v. State, 55 Ala. 242; Young v. State, 68 Ala. 569; Brister v. State, 26 Ala. 107; Owen v. State, 78 Ala. 425; 56 Am. Rep. 40; Wilson v. State, 84 Ala. 426; Amos v. State, 83 Ala. 1; 3 Am. St. Rep. 682. In the case last cited, there was a mere general objection to the evidence of the confessions, specifying no ground; and this court reversed the judgment, for error in overruling it, because there had been no proper predicate laid for the introduction of confessions. In the present case, we have seen the defendant cbjected on the grounds, with others, that the testimony was incompetent and illegal. When this was done, we hold the court ought to have required satisfactory proof, according to the spirit and intent of the above-named decisions, that the confessions were voluntarily made, before admitting them, and erred in not doing so.

There was sufficient evidence of the corpus delicti, independent of the confessions, to render the latter admissible, if they had been proven voluntarily: Ryan v. State, 100 Ala. 94.

We need not pass upon the question raised touching the reception of the verdict, as surely such thoughless conduct on the part of the jury and bailiff will not be repeated. In the face of an agreement that the jury might 71 deliver their verdict sealed to the clerk of the court, if found during the recess or adjournment, they delivered it to the person who was attending them as bailiff and separated. This occurrence suggests the propriety of care on the part of the courts to see that juries are well instructed in what they are to do, when they are to act upon agreements of this kind.

For the error mentioned, the judgment is reversed and the cause remanded. Let the defendant remain in custody until discharged by due course of law.

Reversed and remanded.

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CRIMINAL LAW-ATTEMPT TO COMMIT CRIME.-AN IN. DICTMENT OR INFORMATION charging an attempt to commit a crime, in the words of the statute, is generally sufficient: See monographic note to People v. Morau, 20 Am. St. Rep. 746, on the crime of attempting to commit a crime. An information charging the crime of sodomy in the statutory language has been held sufficient in some cases; in others not: State v. Campbell, 29 Tex. 44; 94 Am. Dec. 251, and monographic note thereto at page 254, on when a crime may be charged in the language of the statute.

EVIDENCE - CONFESSION — ADMISSIBILITY OF - CORPUS DELICTI.-Confessions are not admissible in evidence in criminal cases, when there is any reasonable ground to believe that they were Induced by hope or fear: Green v. State, 88 Ga. 516; 30 Am. St. Rep. 167. They are admissible only when it is clearly shown that they were freely and voluntarily made: Note to Lauderdale v. State, 37 Am. St. Rep. 793. The court must determine whether or not a confession offered in evidence should be received or rejected, and there are cases holding that the court's preliminary hearing for such purpose nust, if desired by the defendant, be made outside the hear. ing of the jury: See pionographic note to Daniels v. State, 6 Am. St. Rep. 214, on the admission of confessions in evidence: Note to Green v. State, 30 Am. St. Rer. 170. A judicial confession is sufficient without proof of the corpus delicti; but extrajudicial confegsions of guilt, without proof of the corpus delicti, are insutlicient to justify a conviction: Note to Daniels v. State, 6 Am. St. Rep. 251. The corpus delicti. however, may be established by circumstantial evidence: Campbell v. People, 159 Ill. 9; 50 Am. St. Rep. 134, and note; note to State v. Harrison, 44 Am. St. Rep. 867; and if there is sufficient evidence of the corpus delicti to satisfy the minds of the

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