
    Bonner v. The State.
    
      Indictment for Larceny.
    
    1. Caption of indictment; description of court — It is not a valid, objection to an indictment, which is shown by the record to have been found by a grand jury at a regular torm of the “City Court of Selma,” that the words “City Court” only, instead of “ City Court of Selma,” are inserted in its caption : these words may be rejected as surplusage.
    2. Admissibility of confessions; preliminary proof to court. —Before confessions can be received in evidence in a criminal case, it must be affirmatively shown, by proof addressed to the court, that they were made voluntarily; and if they are allowed to go to the jury, on the preliminary proof made to the court, and additional evidence is afterwards brought forward during the trial, showing that they were in fact not voluntary, the court should withdraw them from the jury, and instruct the jury to disregard them entirely as evidence.
    3. Same; how revised on error. — The ruling of the court as to the admissibility of confessions is revisablo on error; but the appellate court, in revising such ruling, as in revising other rulings by an inferior court on controverted questions of fact, will not reverse the judgment, unless it appears to be manifestly wrong.
    Ebom tbe City Court of Selma.
    Tried before tbe Hon. Joka. Habalson.
    Tbe indictment in this case was in these words: “ Tbe State of Alabama, Dallas county: City Court, January term, 1877. Tbe grand jury of said county charge that, before the finding of this indictment, Henry Bonner feloniously took and carried away a bog, tbe personal property of Isaac Campbell; against tbe peace,” etc. Tbe defendant demurred to tbe indictment, “because, in tbe caption thereof, tbe style of tbe court is ‘ City Court,’ and not‘ City Court of Selma’.” Tbe court overruled tbe demurrer, and the defendant then pleaded not guilty; and on bis trial be reserved tbe following bill of exceptions:
    
      “ Tbe State introduced. Isaac Campbell as a witness, wbo testified, that about two weeks before Christmas, 1876, in said county of Dallas, he lost a white hog, about eleven months old, and worth about $8 ; that he had it in a pen, with his other hogs, not a great way from his house; that he went to the pen one morning, and found .one of the hogs missing; that he saw a bare-foot track in the pen, and followed it, and found it with another going down the road, from the direction of the pen, towards where the defendant lived; that he lost the tracks, but, in hunting about, came across a place where apparently a hog had been freshly killed, in the woods, about fifty yards in the rear of the defendant’s house — there was some white hair, and the entrails of the hog; that he saw defendant, and inquired of him about his hog, but defendant denied knowing anything about it; that a day or two afterwards, on Sunday, he went to defendant’s house again, and got after him about his hog, when defendant again denied knowing anything of who killed it, but, as witness was starting away, defendant followed him, with Ike Etheridge and Humphrey Brown, and witness heard Mm tell them about the hog, and who killed it. Before this alleged confession was allowed to go to the jury, the witness stated to the court, on examination, that he had made no threats, nor promises, nor held out any inducements to the defendant to make any confession, nor had any one else done so that he knew of. The defendant’s counsel asked the witness, if he did not tell the defendant, before the latter made any confession, that it would be better for him to tell all about it; to which the witness replied, that he had not. Said counsel then asked the witness, if he did not tell defendant, before said confession was made, that he had better confess, and turn State’s evidence, like Chapman did in relation to "Wade’s cow, and thereby get off; to which the witness replied, that he did not. The court thereupon allowed the witness to state what the defendant said; which was, that defendant told said Ike Etheridge and Humphrey Brown that Morgan Harrison killed the hog with his (defendant’s) axe, and that he (defendant) had helped to carry it away, and that when the boys saw them, what they thought was a white sack they had, was a white hog. "Witness said, also, that Morgan Harrison lived in the same house with the defendant.
    
      “ The State having here rested, the defendant introduced Ike Etheridge as a witness, who testified, that he knew the defendant, and also knew Isaac Campbell, and was present when they had a conversation about the hog; that Campbell said to defendant, ‘ You had better own it;’ that defendant said he did not know anything about the hog — who took it; tbat Campbell said, You bad better own it, and turn State’s evidence, like Obapman did about Wade’s beef,’ and tbat be would get off lighter by it; and tbat defendant tben said, tbat be and Morgan Harrison killed tbe bog. Tbe defendant tben introduced Eliza Brown as a witness, wbo testified, tbat sbe knew defendant, but was no kin to bim; tbat sbe recollected tbe nigbt when it was said Isaac Campbell lost bis bog; tbat sbe was at a quilting tbat nigbt, and stayed there until nearly day-break; tbat tbe defendant was at tbe quilting, and went there and came away with her; tbat after leaving tbe quilting, they went to tbe bouse of Julia James, and remained there until day; tbat sbe did not lose sight of bim all nigbt, and did not herself go to sleep during tbe nigbt. Tbe defendant tben introduced Julia James as a-witness, wbo testified, tbat sbe was at tbe quilting tbe nigbt it was said Isaac Campbell’s bog was killedtbat the defendant was there, and stayed until about midnight, and tben went to her bouse, and was there when sbe laid down, and when sbe waked up; tbat Eliza Brown was at tbe same bouse, and retired to sleep tbat nigbt before witness did. Tbe defendant tben introduced Humphrey James as a witness, wbo testified, tbat be was at home the nigbt tbat Isaac Campbell’s bog was said to have been killed; tbat *the defendant came to bis bouse after tbe quilting, shortly after midnight, and stayed there all nigbt, and did not go out of tbe bouse; tbat Julia James, bis wife, and Eliza Brown, big. wife’s sister, were also there, and both of them went to bed; tbat defendant went to bed with tbe children in tbe little bed, and slept with them, and all retired before be (witness) did; tbat next morning, when be waked up, defendant was there asleep, and said Julia and Eliza were both asleep. Witness said, also, tbat be was present, and beard Isaac Campbell tell defendant, tbat be bad better turn State’s evidence like Chapman, and tell all about tbe bog — tbat it would be better for bim to do it; and tbat defendant then said to bim, tbat Morgan Harrison killed tbe bog with bis axe, and tbat be helped to carry it away. Tbe defendant tben, by bis counsel, asked tbe court to exclude tbe evidence' of the witness Campbell about tbe confessions, on tbe ground tbat be bad proved them by these witnesses not to have been made voluntarily; which motion tbe court overruled, and tbe defendant excepted.
    “ Tbe court thereupon charged tbe jury, among other things, tbat they must look to all tbe evidence in the case, in determining whether tbe defendant was guilty or not — to tbe positive and circumstantial evidence as well-? and they must believe beyond any reasonable doubt tbat tbe defendant was guilty, or tbey must acquit Mm; tbat tbe defendant was entitled to tbe benefit of all be said on tbat occasion; tbat tbey might believe one part of a confession, and not another — as, for instance, if the defendant, at tbe time be is said to have made these confessions, said tbat be knew nothing about tbe bog, and who hilled it, and after-wards, in tbe same conversation, said tbat be did know who killed it, and tbat be helped to do it, tbe jury might bebeve bis first statement and not tbe last, or tbe last and not tbe first, just as tbey might, from tbe evidence in tbe cause, determine tbe truth to be ; tbat notwithstanding tbe defendant bad stated tbat Morgan Harrison bad killed tbe bog with bis axe, and tbat be bad helped him to carry tbe bog off, tbey might disbelieve .the confession, if satisfied tbat it was not true; and in such case, if satisfied from tbe other evidence in tbe cause tbat tbe defendant was not guilty, to so return their verdict, notwithstanding such confession: tbat tbe credibility of tbe testimony was a matter for them to pass upon, and not for tbe court.” Tbe bill of exceptions does not show tbat tbe defendant excepted to this charge, but be requésted tbe court, in writing, to instruct tbe jury as follows: “If, from tbe evidence, tbey believe tbat Isaac Campbell told tbe defendant tbat be bad better confess, and turn State’s evidence, and get off, like Chapman in relation to "Wade’s cow, tbey may infer tbat hope of reward was held out to defendant to confess; and if tbey so believe, tbey ought to acquit tbe defendant.” Tbe court refused to give this charge, and tbe defendant excepted to its refusal.
    No counsel appeared for tbe defendant in this court, so far as tbe docket and tbe transcript show.
    JNO. W. A. Sanrord, Attorney-General, for tbe State,
   STONE, J. —

We do not think tbe objection to tbe indictment in this cause was well taken. Tbe caption showed tbe court, term, and tbe organization of tbe grand jury, by which tbe indictment was found. Tbe words, “ City Court,” were unnecessarily inserted in tbe indictment; it was good without them, and tbe court did right in regarding them as sur-plusage, and overruling tbe .demurrer. — See Reeves v. The State, 20 Ala. 33; Perkins v. State, 50 Ala. 154.

In tbat jealous care which the law exercises at all times in protection of life and liberty; in tbe tender regard it pays to human weakness and frailty, it is laid down as one of the cardinal rules of evidence, tbat confessions of guilt shall not be received against a prisoner, until it is first affirmatively shown, that they were made voluntarily. They are prim a facie inadmissible, and the onus rests on the prosecution to repel the imputation of undue influence. Any inducement of profit, benefit, or melioration held out; any threat of violence, injury, increased rigor of confinement, or any other menace which can inspire alarm, dread, or the slightest fear, is enough to exclude the confession, as not voluntarily made. The law cannot measure the strength of human fortitude or will to resist importunity, persuasion, or proffered alleviation, on the one hand, or threats, no matter how slight, on the other. Hence, to justify their admission, confessions must be voluntary in fact.

And the question, whether confessions were voluntarily made or not, is one of law, to be decided by the court, and not one of fact for decision by the jury. When such testimony is offered, preliminary proof should first be made, showing the circumstances under which the alleged confession was made ; and when desired by either party, the court, before admitting the evidence, should hear the testimony offered on each side, and from it determine whether the testimony establishes the fact that the confession was voluntarily made. And if, after receiving such testimony, it is after-wards shown that the confession was procured by threats or promises, as above defined, the court should exclude from the jury all evidence of such confessions. — Bob v. The State, 32 Ala. 560; Aaron v. The State, 37 Ala. 106; King v. The State, 40 Ala. 314; 1 Greenl. Ev. § 219. So, if, after hearing all the evidence, the mind of the .court entertain a reasonable doubt whether the testimony was or was not voluntary, that doubt ought to be resolved in favor of the accused, and the testimony excluded. — -2 Lead. Cr. Cases, 167.

When the evidence of confessions was offered and received in this case, only one witness had been examined, who denied that any threats or promises were offered to the witness; and, consequently, the confession, according to this witness, was voluntary. Subsequently, two other witnesses were examined, each testifying to an inducement held out to the prisoner, to confess his guilt; fixing the time, place, and conversation the same as those deposed to by the witness for the prosecution. The prisoner then moved the court to exclude the evidence of confession; but the court overruled the motion, and the prisoner excepted.

Inasmuch as the question we are considering, though one of fact, is always for the court, and never for the jury, the question arises, is the judgment of the primary court on conflicting evidence revisable in this court; and if so, what in-tendments are we to indulge in regard to the rulings of the court below? We have made as diligent search for authorities bearing on this question, as our engagements would allow, and hato found nothing that bears directly on the subject. In the many cases we have examined, there has been no dispute about the facts. The question in them has been, what words or acts, and by whom spoken or done, are sufficient to exclude the confession as unduly obtained.

On the first branch of the inquiry propounded aboye, we do not doubt that it is alike within the pale of our power and duty, to review the finding of the court on this question of fact. Such is the rule, when, by law, the court is constituted the trier of the facts. — Mims v. Sturdevant, 23 Ala. 664; Shaw v. Beers, 25 Ala. 449; Bradley v. Andress, 30 Ala. 80. But, in such cases, it is not to be overlooked that the court below has the witnesses before it, and examines them ore tenus, and “can apply the same tests to their testimony which a jury is authorized by law to do. They can look to the demeanor of a witness on the stand, and perceive whether he has any inclination or bias in favor of either party; observe and judge of his powers of discernment, memory and description, and determine therefrom the just weight and value of his testimony.” — Kirksey v. Kirksey, 41 Ala. 626, 641. Such judgments of fact, so pronounced by inferior courts on oral testimony, and on issues which the law makes it their duty to try, it is said, “ should not be disturbed, except on the clearest conviction of an erroneous decision.” Further, “ the judgment of the court below should not be set aside, unless a court would be authorized, upon established principles, to set aside the verdict of a jury, where the issue had been tried by them.” — Kirksey v. Kirksey, supra ; Bradley v. Andress, 30 Ala. 80, and authorities cited. In another case, presenting the same question, this court said, the judgment of the inferior court “ will not be reversed on error, unless its decision on the facts is shown to be manifestly wrong.” Dane v. Mayor, &c., 36 Ala. 304. We know no principle which will authorize us, in this case, to depart from the rule above laid down.

Three witnesses were examined before the presiding judge on this question. He could, and doubtless did, observe their manner. One denied all persuasion, inducement, or threats. The other two proved an inducement offered, which, if believed, would have required the exclusion of the confession. It is within the scope of permissible inferences from the record, without doing violence to any of its statements, that the presiding judge believed the one witness, and disbelieved the two. It was his duty to discard their evidence, if their manner was such as to discredit them. Of course, we do not mean that the court, or any other trier of facts, can capriciously, and without reason, disregard any of the legal evidence. What we do mean is, that when an upright and conscientious judge, in faithful, earnest pursuit of simple truth, without regard to the consequences which may follow, finds in the manner of a witness that which clearly discredits him, he should not, and cannot, allow his testimony to exert any influence in the formation of his judgment.

Inasmuch as the present record fails to inform us upon what ground the judge of the City Court refused to rule out the evidence of the prisoner’s confession; and inasmuch as this record does not contain enough to justify us in reversing his finding, if it had affirmed that he believed the one witness, and disbelieved the two, we feel it our duty to presume, in favor of the correctness of his ruling, that that was the ground on wkiqh he overruled the motion to exclude.

What we have said above shows that the City Court did not err, either in the charge given, or in the refusal to give the charge requested. We find no error in the record, and the judgment of the City Court is affirmed.  