
    Hunt v. The State.
    
      Indictment for Murder.
    
    1. Organization of jury in capital cases; there should he special-venire for each capital case. — Under the provisions of the statute' regulating the manner of drawing and summoning special juries in capital cases, a special venire must he drawn for each capital case (Code, § 5004); and it is error for the court to draw one special venire for the trial of two or more capital cases, where the defendants in each case are separately indicted for separate and distinct offenses.
    2. Confessions; when corpus delicti sufficiently proved. — On the trial under an indictment for murder, where the evidence shows that the body of the deceased was found in a river some time after he was last seen alive; that there was a hole in his forehead and his skull was fractured, and there was a wound on his neck as if inflicted by a knife, and it was further shown that the deceased was employed on a steamboat which plied the river in which his body was found, and there was evidence introduced from which it could be inferred that there was a struggle between the deceased and the defendant and another person just before his body fell or was thrown in the river, there is sufficient proof of the corpus delicti to authorize the introduction in evidence of confessions made by the defendant.
    3. Confessions; what necessary to Mow they were voluntarily made. — The promise which would render a confession voluntary in the eye of the law must have relation to the legal consequences of the confession itself, so as to involve some assurance of benefit to the defendant in respect of the crime under inquiry, as that he would not be prosecuted, or that his punishment would be mitigated; and the promise of a mere collateral benefit of protection from tbe personal violence of those who acted with him in the commission of the crime is not sufficient to render the confession involuntary.
    4. Charge as to reasonable doubt. — In a criminal case, a charge requested By the defendant which instructs the jury that if “upon considering all the evidence they have a reasonable doubt about defendant’s guilt arising out of any part of the evidence they must find him nor guilty,” asserts a correct proposition of law and should be given.
    5. Indictment for murder; charge as to offense involved. — A charge which instructs the jury that if they have “a reasonable doubt growing out of the evidence as to whether the killing was done deliberately or as to whether it was done premeditatedly, then they can not find the defendant guilty of murder in the first degree, and if they have a reasonable dpubt growing out of the evidence as to whether the killing was. done out of malice, then they can not find the defendant guilty of murder in either degree, but only of manslaughter at most; and if, after considering all the evidence, the jury have a reasonable doubt as to thie defendant’s guilt of manslaughter arising out of any part of the evidence, then they should find the defendant not guilty,” is a correct charge, but the refusal of such a charge is not error where there is an absence of any evidence tending to reduce the homicide to manslaughter.
    6. O',large as to doubt. — In the tidal of a criminal case, a charge requested by the defendant which' instructs the jury that “if the evidence! or any part thereof, after a consideration of the whole of such evidence generates a well founded! aoubt of defendant’s guilt, the jury must acquit him,” asserts a correct proposition of law, and its refusal is error.
    Appeal from tbe Circuit Court of "Baldwin.
    Tried before tbe Hon. William S. Anderson.
    Tbe appellant in this case, ITamp Hunt, was indicted and tried for tbe murder of Gilbert Howell and was convicted of murder in tbe second degree and sentenced to tbe penitentiary for ten years.
    On tbe trial of tbe case the defendant moved tbe court to quash tbe special venire in tbe case upon tbe ground that there were three capital cases set for trial on the day this case was called and that tbe venire served on this defendant is tbe same special venire and was drawn at tbe same time and is composed of the same names as tlie special venires drawn for tlie trial of tlie other two .cases. On .tlié hearing of this motion the ground of the motion was proved. The co.urt overruled the motion to quash the vertire, and to this ruling of the court the defendant duly excepted.
    Isaac Howell, the father of Gilbert Howell, the deceased, as a ivitness for the State, testified that he found the body of Gilbert Howell in the Alabama river; that the body was face doAvn Avhen he found it; that there Avas a hole in the forehead and that the slcull Avas broken just back of the ear; that the hole in the skull Avas about the size of two knuckles of the hand; that there A\ras also a hole about the size of a knife blade in the neck of the body of Gilbert HoAvell. He further testified that Bill Spotts Avas Avith him when he found his son’s body.
    Willie Williams, a Avitness for the State, testified that he Avas indicted for the killing- of Gilbert Howell; that he Avas on the boat the night it was said that Gilbert HoAvell Avas killed; that the defendant, Gilbert Howell, Orrin Thomas and some others were shooting craps on the boat that night; that after shooting craps awhile, Gilbert HoAvell started to the back of the boat to go doAvn the steps and the defendant Hamp- Hunt and Orrin Thomas Avent Avith him; that the Avitness heard a noise .and ran to the head of the steps and saw the defendant half Avav down the. steps and Orrin Thomas said that Gilbert HoAvell had fallen overboard and the Avitness never saw Gilbert HoAvell any more. Thereupon the Avitness Willie Williams Avas asked by the solicitor for the State the following question: “Did Ham]) Hunt make any statement to you?” Upon the Avitness answering that he did, he Avas then asked AA'hetlier he offered any inducement, to him to get him to make any such a statement. Upon the Avitness answering that he did not, he was then asked Avas it free and voluntary, and upon the Avitness answering that it was, he Avas asked to state what Hamp Hunt stated to him. The defendant objected to this question upon the grounds that no sufficient predicate had been laid for the introduction of the confession and that the corpus delicti had not been proved, and that the said question called for illegal, irrelevant and incompetent evidence. Tbe court overruled tbe obpection, and tbe defendant duly excepted. Tbe witness stated “that Hamp Hunt, the defendant, stated to him, referring to tbe case, that be did it through passion; that be didn’t aim to do it.” Thereupon tbe defendant moved tbe court to rule out the’ testimony of .the witness, Willie Williams, as to the statement made to him by tbe defendant upon tbe grounds that no sufficient predicate bad been laid, and tbe corpus delicti bad not been proved, and that tbe statement was incompetent and irrelevant. Tbe court overruled the motion and the defendant duly excepted. '
    During the' examination of Wilson Smith as a witness, and the subsequent examination of Isaac Howell, they were asked whether or not after it was alleged that Gilbert Howell was killed, they beard tbe defendant make a statement, and if so was such statement freely and voluntarily made and without any inducement? To each of these questions the witness said that upon Isaac Howell asking the defendant to tell him about it the defendant said: “If yon save me from these boys, I will tell you the truth. All the people, black and white, know that Orrin Thomas is a desperado.” That thereupon Isaac Howell said to the defendant: “All right, we will save you.' We will have Orrin Thomas arrested.” That thereupon the defendant stated that Orrin Thomas struck Gilbert Howell with his knucks and Willie Thomas struck at him with his knife and they then threw him overboard. The defendant separately objected to each of tbe questions propounded to the witnesses upon the ground that' no sufficient predicate had been laid for the introduction of the confessions and that the corpus delicti had not been sufficiently proved, and also separately moved tbe court to exclude the testimony of each of such witnesses as to the statements made by the defendant upon tbe grounds, that such statements were in tbe nature of a confession and were shown to have been made involuntarily and that there was no proof of the corpus delicti. The court overruled each of the objections, and also overruled each. of the motions, to exclude the testimony, and to each of these several rulings the defendant separately excepted. The defendant introduced several witnesses who testified as to his general good character.
    The court at the request of the State gave to the jury the following written charges: . (1.) “If you find from the evidence in the case beyond a reasonable doubt, that Gilbert Howell met his death at the hands of Hamp Hunt, or at the hands of Hamp Hunt and Orrin Thomas acting together, you must convict Hamp Hunt.” (2.) “If you cannot say from the evidence beyond a reasonable doubt who killed Gilbert Howell, that is whether it was Hamp Hunt or Orrin Thomas, but can say from the evidence beyond a reasonable doubt, that one of the two killed him, and that Hamp and Orrin were acting together in the killing, the defendant would be guilty, and it would be your duty to convict him.” (3.) “If you should find from the evidence beyond a reasonable doubt that Gilbert Howell came to his death at the hands of Orrin Thomas, but further find from the evidence beyond a reasonable doubt that Hamp. aided or abetted in the killing you should convict the defendant.” (4.) “If the defendant purposely killed the deceased with a wickedness or depravity of heart towards him, and the killing was determined on beforehand, and, after reflection, for however short a time is immaterial, he is guilty of murder in the first degree.” (5.) “If the defendant in this county before the finding of this indictment purposely killed the deceased by striking him .with metal knucks, by cutting him with a knife, or by throwing him overboard, or by means unknown to the grand jury, after reflection with a wickedness or depravity of heart towards the deceased, and the killing was determined on beforehand, even a moment before the fatal blow was struck,the defendant is guilty of murder in the first degree.”
    The defendant separately excepted to the court’s giving each of these charges and also separately excepted to its refusal to give each of the following charges requested by him: (1.) “If the jury upon considering' all tbe evidence have a reasonable doubt about defendant’s guilt arising out of any part of the evidence they must find him not guilty.” (2.) “If the jury have a reasonable doubt growing out of the evidence as to whether the killing was done deliberately or as to whether it was done premeditatedly, then they cannot find the defendant guilty of murder in the first degree, and if they have a reasonable doubt growing out of the evidence as to whether the killing was done out of malice then they cannot find the defendant guilty of murder in either degree but only of manslaughter at the most; and, if after considering all the evidence, the jury have a reasonable doubt as to the defendant’s guilt of manslaughter arising out of any part of the evidence, then they should find the defendant not guilty.” (3.) “Proof beyond a reasonable doubt means that amount of proof which would ordinarily ¡Satisfy an unprejudiced mind to a moral certainty; the circumstances which will amount to this degree of proof can never be previously defined; tlie only legal test to which they are susceptible is their sufficiency to satisfy the mind of a prudent man and so to convince him that he would venture to act upon that conviction in matters of the highest concern and importance to his own interests.” (4.) “If the evidence or any part thereof after a consideration of the whole of such evidence generates a well founded doubt of defendant’s guilt, the jury must acquit him.” (5.) “The court charges the jury that the law does not favor the admissibility of confessions, and if there be any doubt of their competency it should be resolved in accordance with the humane principles of our criminal law in favor of life and liberty and confession should not be believed by the jury unless plainly shown to be voluntary.” (6.) “A confession of guilt, although voluntarily made, will not authorize a conviction unless independent of the confession the evidence is sufficient to authorize a conclusion beyond every reasonable doubt that the defendant is guilty.” (7.) “If the evidence for the prosecution tends to establish the defendant’® guilt, but the evidence in his favor tends to establish his innocence, and the jury are not satisfied to a moral certainty which tendency is true, it is their duty to give the defendant the benefit of the doubt and acquit him.”
    Mitchell & Tonsaiiere and Leslie Hall, for appellant.
    The court erred in overruling the motion to. quash the venire. It is necessary that a separate special venire should be drawn for each separate capital case. — Crim. Code, § 5004; Adams v. State, 138 Ala. 166.
    The court erred in allowing testimony tending to show confessions on the part of the defendant. — Mat-fhcics v. State, 55 Ala. 187; Harden v. State, 109 Ala. 50; Ryan v. State, 98 Ala. 94; BoioUng v. State, 98 Ala. 80; Aloses v. State, 88 Ala. 78.
    The first charge requested by the defendant asserted a correct proposition of law and should have been given. — Hurd v. State, 94 Ala. 100; Forney v. State, 98 Ala. 19; Walker v. State, 117 Ala. 45; Adams v. State, 113 Ala. 166.
    The second charge requested by the defendant asserted a correct proposition of law' and should have been given. — Gompton v. State, 110 Ala. 34; Stoneldng v. State, 118 Ala. 70; Adams v. State, 133 Ala. 166.
    The other charges requested by the defendant Avere free from error and should have been given as requested. — 1 Starkie on Eiddence, 514; 1 G-reenleaf on Evidence, § 2; Briton v. State, 107 Ala. 114.
    Chas. G. Brown, Attorney-General for the State.
   McCLELLAN, C. J.

The motion to quash the. special venire for the trial of this defendant should have been granted. Section 5004 of the Code, under cvhich this venire Avas drawn, requires that Avhen capital cases stand for trial the. judge shall draw from the jury box not less than twenty-five nor more than fifty names as special jurors “for each capital case.” Here three distinct capital cases Avere set for the same day. For the trial of each and all of them the court drew fifty names from the box, and put these identical fifty names, on the separate venires for tbe trial of each of the three defendants, instead of drawing fifty different names for these several trials. This was error.— Adams v. State, 133 Ala. 166.

The corpus delicti was sufficiently proved by the testimony of the. witnesses Isaac I-Iowell and Willie Williams before evidence of confessions.was offered by the 'State.

In .laying;. the predicate for admitting- evidence of confessions the proper course is to show the substantive facts that no inducements, promises and the like were held out or made to .the defendant, and that no threats or the like were indulged against him for the purpose of getting the statements from him which it is proposed to show he made at the time. That he made such statements freely.and voluntarily is a conclusion to be drawn by the court when the substantive facts justify it and it is not for the predicate witness to draw and state.

.The fact that incriminating statements of a defendant are made upon a promise of officers or citizens having him in custody that if he will tell the truth they will protect him against the wrath and vengeance of persons who are implicated or whom his statement implicates in the offense, does not render such statements inadmissible if they are otherwise voluntary. The promise which will render a confession involuntary in the eyes of the law must have relation to the legal consequences of the offense itself; it must involve some assurance of benefit to the defendant in respect of the crime under inquiry as that he will not be prosecuted or that his punishment will be mitigated and the like. The mere collateral benefit of protection from the personal violence of those who acted with him in the commission of the crime will not suffice.

The first charge requested by the. defendant could ■hardly be abstract in any criminal case. It has been several times held by this court to assert a sound proposition of law.

Charge 2 refused to defendant is copied from Compton v. State, 110 Ala. 94, where it was held to be a correct charge; and this ruling has been reaffirmed in Stoneking v. State, 118 Ala. 70, and Adams v. State, supra. Its refusal, however, in this case may be justified upon the absence of evidence tending to reduce the homicide to manslaughter.

Charge 4 asked by defendant “asserts a correct proposition and should have been given.”—Turner v. State, 124 Ala. 59, 63.

The other charges requested by the defendant were properly refused and the court .committed no error in giving the several charges requested by the State.

'Reversed and remanded.  