[Porter v. The State.] fess and tell me all about it. The prisoner then said, 'Let Mr. Moore,' the brother of the deceased, 'come and tell me that I will not be punished, if I tell it.' I brought in Mr. Moore, Mr. Nicholson, the magistrate, and Mr. Stewart, the prosecuting attorney; and they all assured the prisoner, that he should not be punished, if he would confess and tell all about it. And I then gave him every inducement to tell, and every assurance that he should not be punished, but used as a State witness, if he would tell the facts about the homicide." After some hesitation, the prisoner said, "There is no chance for me, any how; I will be hung, whether I tell or not, and I might as well tell all about it." He then confessed before those persons. It was then and there agreed, that he should be made a State witness; and he went before the magistrate, in the court-room, and repeated the statement and confession. The next day, while being carried to prison by the constable, and after receiving three drinks of liquor from him, he repeated his confession to him. On the first and second days, each, after the prisoner was committed to prison at Marion, the leading counsel for the prosecution visited the prisoner in jail, there being in company with said counsel, on each occasion, two other persons, friends of the prosecution; one of them, at least, being present at the request of said counsel. At the first of said visits, the brother of the deceased was present; and the brother-in-law of deceased was one of the number who then visited the prisoner. Said leading counsel said to the prisoner, in substance, as follows: "I have heard what you confessed at Uniontown. You did not tell the whole truth about it. I want you to be particular how you talk, as what you say may send you to the penitentiary or gallows. I have control of the case now; and all that was done at Uniontown is done away. I withdraw all hopes of reward, and fears of punishment. You have not told all the truth about it. I tell you now, again, Porter, that you must not hope or expect to receive any benefit, favor, or mercy, or think the case will go lighter with you, for what you said at Uniontown, or what you said at any time before, or what you may say now; and if they promised to let you off, or make the punishment lighter, or to let you be a State witness, I tell you it cannot be. You cannot be a State witness; and you must not expect any mercy, or to be a State witness. I want you to understand, that all promises made at Uniontown are taken back, and what you said at Uniontown will do you no good, and cannot be used for or against you. If you wish to tell any thing, you must do it of your own free will; and remember, it may hang you, or send you to the penitentiary for life. [Porter v. The State.] Now, you can tell the truth about it, if you wish. Do you understand what I mean?" The prisoner replied, "that he did; that he did not expect any mercy; that he expected to be hung; that he told it, because his conscience hurt him, and he could not keep it any longer." The prisoner thereupon made confession of his guilt; and the main question in this cause is, were those confessions, last made, rightly admitted in evidence against him? 1. We do not think any unbending, universal rule can be laid down, for the government of all cases, in which it is claimed that confessions are legalized by the withdrawal of promises or threats previously made. The inquiry, in all such cases, presents itself, has all influence been withdrawn and obliberated from the mind of the prisoner, so as to show, affirmatively, that the confession is clearly voluntary, and not influenced in the slightest degree by the threats, promises, or other inducements, previously made or held out, or by any thing which resulted from such previous threats or promises. For, if such previous inducements were the remote or contributory cause of the confession, the policy of the law forbids that such confession shall be used in evidence; and when previous inducements have resulted in drawing a confession, the proof should be very clear and strong, that the mind of the prisoner had been completely disabused, so as to convince the court that the confession was as free as if no motives to make it had ever been offered to the prisoner. Less than this falls short of proving that the confession was voluntary. In considering the facts of each particular case, the degree of intelligence of the prisoner should be taken into the count. 2. In the present case, the strongest conceivable influences were brought to bear on the prisoner, to induce him to confess. The promises were of the most complete immunity. from criminal punishment; and this guaranty was given and sanctioned by the court before which he was being tried, the brother of the deceased, and by the officiating attorneys of both the prosecution and the defense. Never was importunity more vehemently urged, backed by a stronger array of personal influence, or enforced by the promise of a more tempting boon. A clear head and an imperious will could scarcely resist such combined influences. Under these the first confession was made, and it matters not that the prisoner then announced he expected to be hung; thus repelling, as it may be supposed, all idea that he was at all influenced to make the confession by the promises previously made him. It is very improbable that, in the absence of the importunities and assurances with which he was besieged, he [Porter v. The State.] would have confessed his guilt of the horrid crime, the commission of which was then so justly disturbing the public repose. In fact, the counsel for the prosecution, in view of the circumstances, admitted on the trial that the confession, then and thus obtained, could not be given in evidence against the prisoner. In this he but affirmed what all the law books teach. The second confession, made on the day following, the counsel for the prosecution also admitted was illegal evidence. In this he asserted only a legal truism, for two reasons; first, the inducements of the day before had not been withdrawn; and, second, the confession was made to the officer who had him in charge, and who, previous to the confession, had given the prisoner three drinks of liquor. It is thus shown that, up to the time the prisoner was committed to jail, none of his confessions were admissible evidence against him. Were the explanation and withdrawal of the offered inducements, which took place when the prosecuting counsel visited the prison, sufficient to efface from the mind of the prisoner every trace of influence exerted by the promises made, so as to leave his mind as free to act, as if no hopes or expectations of benefit had been previously held out to him? Are we convinced-fully convinced-that such was the case? The recitals in this record do not enable us to answer these questions affirmatively. The prisoner was evidently an ignorant man. He was confronted only by persons who believed him guilty, and could not be classed as his friends. Neither his counsel, nor any sympathizing friend, was present; and he was not warned or advised to reflect, or take counsel, before he made further confession. We do not say that this last step would be in all cases necessary; but, in the then condition of the prisoner's mind, and with the persons then around him, it would have been eminently humane and proper to do so. Above all, we do not think it was sufficiently explained to the prisoner, ignorant of such things, as we are satisfied he was, that none of the confessions previously made by him could be proved in court against him, or could exert any influence whatever in his trial. This point should have been made unmistakably plain to him. Less than this does not assure us that the prisoner may not have believed his former confessions had sealed his doom, and that any denial he might then make would be of no avail. In what we have said, we do not wish to be understood as disapproving confessions of guilt, voluntarily made, as an instrument of evidence. When they are the spontaneous [Porter v. The State.] out-crop of conscious guilt, made without importunity, without appliances of hope or fear, if satisfactorily proved, they deserve to be classed with the highest evidence. No sane man, it is supposed, would deliberately and falsely volunteer a confession of his guilt, and thereby bring odium and probable punishment upon himself. Consequently, when a confession is freely and spontaneously made, it is an evidence that the virtuous instincts are not all deadened, and that conscience is doing its accustomed work. A self-accusing secret is a restless prisoner. It struggles for enlargement. When, however, appliances and artifices are resorted to, as a means of inducing suspected persons to confess, such confessions come in so questionable a shape, that they deserve very careful, watchful scrutiny. The doctrine of admitting confessions in evidence, has been sometimes carried to the outer verge of propriety. King v. The State, 40 Ala. 314. 3-4. Many of the charges given and refused do not bear on the question of Porter's guilt. They are only important as bearing on the guilt of other defendants. Of the charges asked and refused, several are of this class. Charges numbers 2, 5 and 6 assert correct legal propositions, and should each have been given. Charges 1, 4 and 7 were calculated to mislead, and should not have been given. The clause in the general charge, authorizing the jury "to compare the confessions of each with the other," was calculated to mislead, and should not have been given, without a limitation. Parties were on trial, against whom no confessions were proved. Against such, neither the confessions of others, nor a comparison of the confessions one with another, should be allowed to have the slightest influence. As to them, such confessions were but unsworn hearsay; and should have been allowed to exert no more influence against them, than if the parties confessing had not been on trial. 5. An attempt made to prove any material fact, followed by a failure, is a circumstance to be weighed against the party making it. To say "it is a strong presumption against him," is going beyond what any authority justifies. 1 Burrill's Cir. Ev. 519, quoting from Wills' Cir. Ev. 83, says, such failure "is always a circumstance of great weight against a prisoner." "Great weight" is not the equivalent of "strong presumption." Presumptions in law are inferential, or prima facie facts. We are inclined to think Mr. Burrill states the principle too strongly. We cannot perceive why a failure, in an attempted proof of alibi, should be visited with severer intendments, than a failure in the attempt to prove any other fact in defense. Of course, a fraudulent [Beggs v. The State.] attempt to prove a simulated alibi, sustained by perjury, will, when detected, be a circumstance of great weight against the prisoner. The connection in which Burrill employs the expression above copied, tends to show that he had reference to an unsuccessful fraudulent attempt to establish an alibi. In that sense, we agree with him. The judgment is reversed, and the cause remanded. Let the prisoner remain in custody, until discharged by due course of law. 55 108 94 99 94 503 55 108 109 49 55 108 17 104 119 503 55 108 126 681 Beggs v. The State. Indictment for Bigamy. 1. Proof of marriage by certified transcript of license and return; judicial notice of public officers.-A marriage license, with the certificate of the solemnization of the marriage under it, is a record of the Probate Court, which the judge is required to keep (Rev. Code, § 2340), and authorized to certify; and when a certified transcript thereof is offered in evidence in any court of this State, it is not necessary that the judge's certificate should be under his official seal, since the courts take judicial notice of all public officers who are commissioned by the governor, and are bound to recognize their official acts. 2. Bigamy; what constitutes offense; where indictable; variance. The offense of bigamy under the statute (Rev. Code, § 3599), as at common law, is complete when the second marriage is complete, without proof of subsequent cohabitation, and is indictable only in the county in which the second inarriage is solemnized; while subsequent cohabitation under the second marriage, which is a distinct offense, may be indicted and punished in any county in which it is committed; but, under an indictment for bigamy, a conviction cannot be had on proof only of subsequent cohabitation, in the county in which the indictment was found, when the second marriage took place in another county, or in another State. 3. Same; validity of infant's marriage.-A marriage, contracted by an infant under the age of cousent-seventeen if a male, and fourteen if a female (Rev. Code, § 2333)—is not absolutely void, but voidable only; and, until disafiirined, is a marriage in fact, and sufficient to support a prosecution for bigamy in contracting a subsequent marriage. FROM the Circuit Court of Cleburn. Tried before the Hon. WM. L. WHITLOCK. The indictment in this case, which contained but a single count, charged that the defendant, Thomas Beggs, "having a wife then living, unlawfully married one Elizabeth Knight." On the trial, as the bill of exceptions shows, the defendant having pleaded not guilty, "the State proved the marriage of the defendant in this county (Cleburn), in October, 1869, with Ellen Birdsong, and introduced evidence tending to show that she was then living;" and then offered in evidence |