Levy v. State , 49 Ala. 390 ( 1873 )

BRICKELL, J.

— The first matter not embraced in the bill of exceptions, to which our attention is directed by the counsel, is, that after the reversal of a judgment of conviction, the record does not show that the defendant was re-arraigned. In this there is not error. The reversal of the judgment of conviction restored the cause to the condition in which it was before the rendition of that judgment. That judgment was, after the reversal, in the language of some authorities, mere waste paper. There was no more necessity for a re-arraignment, than there would have been if-the cause had been continued at the term at'which that judgment was rendered. The plea of not guilty, interposed when the defendant was called to the bar to answer the indictment, remained in full force; the issue to be tried, and a trial by jury, the only mode of trial, to which the defendant was subject. The objection that the defendant was not in court when the motion for a new trial and in arrest of judgment were considered is not supported by the record, if available.

2. The first matter of the bill of exceptions is, that the court declined, on the request of the defendant, to suspend the organization of the jury, and cause another juror to be summoned in the place of Greenwood, whose name appeared to have been illegibly written on the list furnished the accused, and who was, of consequence, set aside under the statute. R. C. § 4175. We are unable to discover any prejudice to the defendant in this ruling of the court. We think it affirmatively appears from the record that none resulted to him. A jury which he accepted was empanelled, without exhausting the original venire, and by that jury he was tried. His right of challenge was not impaired, nor was any other right accorded to him invaded. Even if the action of the court had been erroneous, a reversal could not follow, if the record disclosed that no injury resulted. Wilson v. State, 31 Ala. 371.

3. The charges requested by the appellant were properly refused. They are based on the hypothesis that the law in his favor indulges the presumption that confessions voluntarily made by him are true, and devolves on the State the burden of disproving them beyond a reasonable doubt. The law indulges no such presumption. When a confession is offered in evidence against a prisoner in a criminal prosecution, the law, in tenderness to him, requires that it shall be shown to have been voluntarily made. When this is shown, it is admitted in evidence, and as to credibility and sufficiency, rests on the same ground as admissions made by a party to a civil proceeding. No presumption of truth or falsity trammels the jury. The whole of a confession or admission must be given in evidence, and taken together ; in other words, it must not be garbled. Apart from the manifest injustice to the party of selecting the parts of a confession or admission deemed prejudicial, and disconnecting them from other statements with which they were connected in expression, it would be impossible to fix the true meaning of the parts- selected. Therefore, the law requires the whole of an admission or confession to be laid before the jury, as well that which is favorable as that part which is unfavorable. The jury are not bound to give credence to every part; they may, for sufficient reasons, reject a part and give credence to a part; or they may reject the whole as unworthy of credit. This is the power of the jury, which they cannot exercise capriciously or arbitrarily, but for sufficient reasons appearing to them, either from the confession or admission itself, from the circumstances under which it was made, from the intent and motive of the party making it, or because of its inconsistency with other evidence in the cause. 1 Greenl. Ev. §§ 18, 20 ; Corbett v. State, 31 Ala. 329. Apart from this, the declarations in evidence in this case were not confessions, but rather declarations of innocence, made by the accused after his arrest. If there was a presumption of the truth of such declarations, they would be manufactured to meet the exigencies of many criminal cases.

We have carefully examined the record, and find in it no error. The judgment is affirmed.