
    Shields v. The State.
    
      Prosecution for Carrying Concealed Weapons.
    
    1. Evidence obtained by illegal search, admissible. — Evidence obtained by a search, which was illegal and unauthorized, is admissible to fix the guilt of a criminal offense upon the person searched; and the admission of such evidence so obtained is not violative of the constitutional guaranty that a person accused shall not be compelled to give evidence against himself, or .of the further guaranty “that the people shall be secure in their persons, homes, papers, and possessions from ' unreasonable seizures or searches.”
    2. Same; carrying concealed weapons. — On a trial for carrying concealed weapons, where it is shown that a pistol was found concealed on defendant’s person as the result of a forcible search by an officer, the evidence of the discovery of the pistol concealed about his person is admissible against the defendant, although the search was unauthorized and unlawful.
    3. Sheriff’s right to search persons desiring to visit the jail. — While a sheriff, as jailor, may require whoever seeks to visit prisoners in the jail to submit their persons to a proper and orderly search, he can not, if such persons do not consent thereto, compel them by force to .submit to a search of their persons, even though he may suspect them of crime or criminal purposes.
    ■ 4. Charge of the court to the jury; effect of the evidence. — In a criminal pase, a charge to the jury that, “If they believe the evidence, they -must find the defendant guilty,” is erroneous, in not'requiring the ■belief of the evidence to the exclusion of .all reasonable doubt: ■ ."■■
    Appeal from the County Court' of Wilcox.
    Twd..before .the Hon. ,J. T.- Beck. *
    The defendant was prosecuted under ¿"complaint charging him with the offense of carrying a pistol concealed about his person, and was convicted therefor. On the trial of the case, as is shown by the bill of exceptions, the State introduced as a witness M. E. Curtis, sheriff of Wilcox county, who testified that the defendant, with two others, came to the jail of Wilcox county, and asked to be allowed to see a cousin, who was then a prisoner confined in said jail; that said Curtis told them that they could not go into the prison part of the jail until he had searched them; that one of the party was searched, and that when the defendant halted, the witness Curtis remarked : “If you wish to go in come on ; and if you do not wish to go, then go out;” that the defendant then started to go into the prison part of the-jail, and that thereupon the sheriff took hold of him, and, against his consent, searched him, and found a pistol concealed about his person. The defendant objected to this testimony, and moved to exclude it, on the grounds : 1st, that the sheriff had no right or authority to search him ; 2d, because the searching of defendant’s person, and finding the pistol concealed by the said sheriff, was without his consent or permission, and, therefore, the testimony relating thereto is inadmissible. The court overruled the objection and motion of the defendant, and to this ruling the defendant duly excepted.
    The defendant testifying in his own behalf stated that the pistol which was found upon his person was a broken pistol, which he was carrying to the gun-smith to be repaired, and that the said sheriff searched him against his consent. Upon the introduction of all the evidence the court charged the'jury that “If they believe the evidence they must find the defendant guilty.” The defendant duly excepted to the giving of this charge.
    Peter M. Horn, for appellant.
    Wm. L. Martin, Attorney-General, and Virginius W. •Jones, for the State. — The court did not err in admitting the.evidence of M. E. Curtis,the sheriff. — -Spicer v. State, -69- Ala. 159, and. authorities cited ; Chastang v. Stater83 -Ala. 29; Terry v. State, 90 Ala. 635; Scott v. State, 94 Ala. 8Ó ; Sewell b..'State, 99-Ala.-183. -
   BRIOKELL, C. J.

The proposition, underlying the 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, ’ ’ &c. 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, lb. 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, Sew-ell 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 so 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 jailor, having the legal custody and charge of the county jail, and of the prisoners therein confined. He may commit the custody and charge to a jailor of his appointment, who becomes his deputy or substitute, for whose acts he is civilly responsible. — Cr. Code, § 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 jailor, 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 j udgment, 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 jailor 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 offense 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 the criminal law, are not accustomed tobe 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 dealing, 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 themseves 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 Greenl. Ev., § 254 a; Commonwealth v. Dana, 2 Mete. (Mass.) 329-37; State v. Flynn, 36 N. H. 64; Gindrat v. People, 138 Ill. 111.

The extra-judicial 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 Greenl. Ev.,§ 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 voluntary, are also admissible evidence. — Wharton Cr. Ev., § 670 ; 1 Roscoe Cr. Ev., (8th Ed.), 81; King v. State, 40 Ala. 314; People v. Barker, 60 Mich. 277, s. c. 1 Am. St. Rep. 501; Heldt v. State, 20 Neb. 492, s. o. 57 Am. Rep. 835. The evidence of an eavesdropper as to statements made 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 eavesdropping is disreputable in itself, or was an offense 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; Wright v. State, 7 Tex. App. 574; People v. Barker, 60 Mich. 277, s. c. 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 detective 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 acensare,” 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 Const., § 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 essence 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 Hampshire, in State v. Flynn, 36 N. H. 64 : “It seems to us an unfounded 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 their’s, 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 Metc. (Mass.)329, was of the seizure 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 in the cases of Legatt v. Tollervey, 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 wel] 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 generate full belief of the fact, to the exclusion of all reasonable doubt.” — 3 Greenl. Ev., § 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 so 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 be reversed and the cause remanded ; tbe defendant will remain in custody until discharged by due course of law. .

Reversed and remanded.  