Opinion
1 Div. 962.
December 16, 1930.
Appeal from Circuit Court, Mobile County; Alex T. Howard, Judge.
Lee Blythe was convicted of assault with a gun, and he appeals.
Reversed and remanded.
C. W. Tompkins, of Mobile, for appellant.
A witness may not be allowed to testify that a confession was voluntarily made. That is a question for the court to determine. Wilson v. State, 20 Ala. App. 137, 101 So. 420.
Charlie C. McCall, Atty. Gen., for the State.
The witness having already shown that the confession was voluntarily made, his subsequent statement that it was voluntary, if error, was harmless. Stone v. State, 208 Ala. 50, 93 So. 706; Fincher v. State, 211 Ala. 388, 100 So. 657; Milton v. State, 213 Ala. 449, 105 So. 209.
The state offered as a witness Mackie White, by whom the state sought to prove a confession claimed to have been made by defendant to the witness at the time of the arrest. As a part of the predicate laid to this witness, preliminary to proof of the confession, the state was allowed, over the objection and exception of defendant, to ask, "What he said there, did he say freely and voluntarily?" to which the witness answered, "Yes." Motion to exclude was overruled and exception reserved. The objection to the above question should have been sustained, and the motion to exclude the answer should have been granted. It is not permissible to allow a witness to state in this manner that a confession was freely and voluntarily made. This is a conclusion and a substitution of the opinion of the witness for that of the court. Wilson v. State, 20 Ala. App. 137, 101 So. 417; Craven v. State, 22 Ala. App. 39, 111 So. 767; 7 So. Dig. Crim. Law, 448(12).
Other questions will probably not arise on another trial.
For the error pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.