This is an appeal from a decree in equity which ordered that the prosecution of a fifteen-year-old minor, under an indictment for murder and robbery, be transferred from the juvenile court to the circuit court.
On August 10, 1961, the grand jury returned the indictment and, on the same day, the circuit court ascertained that the minor was fourteen years of age and, therefore, under § 363, Title 13, transferred the cause to the juvenile court. On August 21, 1961, the juvenile court rendered judgment finding that the minor was more than fourteen years old, that he could not be made to lead a correct life and could not be properly disciplined under the provisions of Chapter 7, § 350 et seq., of Title 13, Code 1940, and transferring the cause back to the circuit court. Such a judgment by the juvenile court is provided for by § 364, Title 13.
From the judgment of the juvenile court, appeal was taken to the circuit court, in equity, as provided for by § 362, Title 13, which provides that on appeal, "the circuit court shall try the case de novo," and also that all appeals under this chapter shall take precedence over all other business of the court to which the appeal is taken.
The circuit court, in equity, after hearing testimony ore tenus, ordered the cause transferred to the circuit court, "* * * there to be placed upon the Criminal Docket of said Court and there to be proceeded against according to law." The decree is assigned as error.
Appellant recognizes the rule of review that the appellate court will not reverse a decree rendered on testimony heard ore tenus by the trial court unless the decree is palpably wrong. Appellant insists, however, that a consideration of the evidence in the record shows that the decree is palpably wrong.
Appellee replies that the finding of the equity court, with reference to the delinquency of a minor, is not revisable by the Supreme Court in the absence of a clear abuse of discretion, citing Berry v. State, 209 Ala. 120, 95 So. 453; and Sims v. State Dept. of Public Welfare, 259 Ala. 283, 66 So.2d 460. We do not think that either case supports appellee's proposition, as we hereinafter undertake to show.
So far as we are advised, § 364, Title 13, originated as § 11 of Act No. 340, General Acts of 1907, page 442. § 11 of the 1907 Act, which bears but slight resemblance to § 364 of Title 13, provided that when a child under fourteen years of age is arrested for violation of law, the child must not be imprisoned but shall forthwith be taken before the proper judicial officer provided by the 1907 Act. § 11 was codified as § 6458 of Code 1907.
§ 6458 of the Code of 1907 was amended by Act No. 506, General Acts 1915, pages 577, 584. In the last two sentences of § 9 of said act will be found the progenitor of the first sentence of § 364, Title 13. The 1915 Act provided as follows:
Act No. 295, 1923 General Acts, page 296, approved September 18, 1923, made extensive amendment to the juvenile offender statutes. The first sentence of Subdivision (2) of § 11 of the 1923 Act, page 310, and the first sentence of § 364, Title 13, Code 1940, are substantially the same. That sentence, as it appears in Code 1940, recites:
The 1923 Act made two significant changes in the sentence. First, where the 1915 Act provided that the probate court might transfer "any child," the 1923 Act, and the 1940 Code, limit the power of the juvenile court so that it may transfer only "a delinquent child, more than fourteen years of age," and not just any child. Second, the 1915 Act provided that "If at any time, said probate court is convinced" that any child before the court could not be reformed and brought to lead a correct life, the court could transfer the child, but the 1923 Act, and the 1940 Code, limit the power of transfer to "* * * any time, after thorough investigation or exercise of its disciplinary measures," and not just any time.
Where the 1915 Act apparently granted a power to transfer without investigation or trial of such measures, the 1923 Act, and the present law, require, as a condition precedent to transfer, that the juvenile court either make a "thorough investigation" of all pertinent circumstances, or "exercise" the disciplinary powers of the juvenile court under the statute. To hold otherwise would be to ignore the clear meaning of the language of the 1923 Act. See Biennial Report of Attorney General, 1922-24, page 425.
In the instant case, there is no insistence that the juvenile court exercised "its disciplinary measures," and the order of the juvenile court to transfer the prosecution to
Berry v. State, supra, was decided February 8, 1923, prior to the effective date of said Act No. 295, approved September 18, 1923. The Berry case was decided under the 1915 Act which did not require a "thorough investigation" or the "exercise of its disciplinary measures" by the juvenile court as a condition precedent to the exercise of its power to transfer the case against a minor, more than fourteen years of age, back to the circuit court.
The other case cited by appellee, Sims v. State Dept. of Public Welfare, supra, had nothing to do with the prosecution of a minor for crime. That case was a contest between grandparents and the Welfare Department for the custody of minor children and is not in point here.
In Ex parte State ex rel. Echols, 245 Ala. 353, 17 So.2d 449, also cited by appellee, the petitioner sought to prohibit the circuit court, in equity, from proceeding against a minor, or to compel transfer of the prosecution to the law docket with a jury. In the Echols case, the issue in the cause, trial of which petitioner sought to prohibit, was delinquency vel non, which is not the issue in the proceeding now under review. The issue here is whether the minor can be made to lead a correct life, etc., as the statute provides. With reference to that issue, and the transfer of the prosecution to the circuit court, which issue and transfer were not present in the Echols case, the court had this to say:
Appellee has cited no authorities other than the three cases we have mentioned and § 364 of Title 13. A case which, as we think, sheds some light on the interpretation of § 364, is Macon v. Holloway, 19 Ala.App. 234, 96 So. 933; cert. denied, 209 Ala. 580, 96 So. 936.
In the Macon case, the court considered an act of the legislature which applied to counties of certain population and related to dependent, neglected, or delinquent children, to wit: Act No. 40, General and Local Acts 1920, page 76, approved October 2, 1920. The first sentence of § 20 of that act may well have been taken as a model by the draftsman of Act No. 295, 1923 Acts, page 296, discussed supra. The 1920 Act, considered in the Macon case, in pertinent part recited as follows:
In the Macon case, the minor applied to the circuit court for mandamus, to compel the juvenile court to rescind its order transferring the prosecution of the minor to the circuit court and to compel the trial of the minor as a juvenile in the juvenile court. The circuit court sustained demurrer to the petition, and, on the appeal that ruling was reviewed and affirmed. With reference to the power to transfer, conferred by the statute on the juvenile court, the opinion in pertinent part recites:
In the light of the foregoing authorities, we are of opinion that the juvenile court could transfer the prosecution of the minor to the circuit court in the instant case only after a thorough investigation and a finding supported by proof that the minor cannot be made to lead a correct life and cannot be properly disciplined under the provisions of the juvenile statute.
We are further of opinion that on appeal to the circuit court, in equity, that court could transfer the prosecution to the circuit court only after such investigation and a finding supported by such proof presented on trial de novo.
In the case at bar, the evidence which was before the circuit court, in equity, is in the record before us and we must consider the same under the recognized rules of appellate review.
Seventeen witnesses testified on behalf of the minor. Many of the witnesses had known the minor all his life. All, except the child welfare worker, had known him for a number of years. Sixteen witnesses testified that his reputation in the community in which he lived was good, that he was a quiet boy, that he did not misbehave, that he was obedient, and that he was a good worker.
The child welfare worker had made an investigation pursuant to an order of the juvenile court. She testified as to the results of her investigation of the minor
She testified that on the basis of her investigation and experience, she "feels" that the minor, "* * * due to his age that he should be accepted by the Juvenile authorities in the juvenile age range and rehabilitated," and that she "feels" that he can be rehabilitated.
There is nothing in the testimony of these seventeen witnesses to support a finding that the minor cannot be made to lead a correct life or that he cannot be properly disciplined under the provisions of the juvenile offender statutes. On the contrary, the testimony, if true, compels a contrary finding.
The only additional testimony is that of a deputy fire marshal who was called in to investigate an automobile fire which occurred in connection with the crimes with which the minor is charged.
This last witness testified that he received a call from the sheriff's office and that he went "to the scene together" with others. The witness testified as to what he found. Some of the testimony of this witness is clearly hearsay and could not be considered under any rule that holds hearsay to be incompetent. The details of what the witness found at the scene of the alleged crime are not relevant to the issue on trial, i. e., whether the minor can be made to lead a correct life and can be properly disciplined under the juvenile court statutes, unless there is evidence to connect the minor with the alleged crime.
This last witness testified that the minor made oral and written confession of his guilt, and the alleged written confession was admitted in evidence. When counsel for the minor moved to exclude a certain statement of the witness made in connection with the confessions, the court stated:
The decree recites:
We think the record discloses that the learned trial court considered the testimony
The deputy fire marshal, as predicate to admission of his testimony, testified that neither he nor anyone else offered to the minor any inducement to get him to make a statement, but on cross-examination the deputy fire marshal testified as follows:
We are of opinion that the evidence going to prove the confessions was not competent and, therefore, should not have been considered by the court.
This case was tried in equity, without a jury. The court had indicated that only relevant evidence would be considered. We think the record shows that the court was proceeding under Act No. 101, approved June 8, 1943, General Acts 1943, page 105, which appears as § 372(1), Title 7, Code of Alabama Recompiled 1958. See also Act No. 479, General Acts 1923, page 631. This statute provides that in the trial of equity cases it shall not be necessary that objection be made to any testimony which may be offered by either party and that the court shall not consider any testimony which is irrelevant, immaterial, incompetent, or illegal, whether objections shall have been made thereto or not, and whether such testimony be brought out on direct, cross or re-direct examination, or is hearsay. In such posture of the case, we do not think it was necessary for the minor to object to the evidence proving the confessions, or to move to exclude it, if such evidence was incompetent.
§ 377, Title 13, provides that the "voluntary" confessions of any delinquent child, in reference to any cause, if otherwise competent, shall be received "in such court as legal evidence." The present Code section appears in Act No. 295, General Acts 1923, at page 315, as an amendment of § 6464, Code 1907, which formerly provided that the confessions made by a child under fourteen years of age shall never be legal or competent evidence against the child in any court or proceedings whatever. Thus it appears that the "voluntary" confessions of the minor in the instant case would be admissible against him if the confessions be otherwise competent.
Appellant contends that the evidence relating to the crime charged against the minor in the instant case is not relevant to the issue of whether he cannot be made to lead a correct life and cannot be properly disciplined as aforesaid. In view of our conclusion that the confessions were not shown to be voluntary, we forego determination of the issue raised by appellant's contention.
It scarcely seems necessary to cite authority for the proposition that a confession is prima facie inadmissible as evidence and it must be satisfactorily shown to the court that it is voluntary before it can be received in evidence. Mullis v. State, 258 Ala. 309, 62 So.2d 451
In the instant case, however, predicate was laid to show that the confessions were voluntary, and it was only on cross-examination of the witness who proved the confession that its involuntary character was shown.
Where witness told defendant "you had better return the chair" which had been stolen, and defendant replied "that he would," this court held the confession involuntary and inadmissible. Lacey v. State, 58 Ala. 385.
In Owen v. State, 78 Ala. 425, the defendant had been delivered into the custody of J. W. Robertson, a special constable.
This court reversed and said:
Concerning Anderson v. State, 104 Ala 83, 16 So. 108, it has been said:
In another case, on trial for infanticide, the defendant had been told "Tell us the truth about it all, and that will be the last of it." Defendant shortly after said, "Yes, Martha did have a baby, and I burned it up." This court held it error to refuse to exclude this evidence, for the reason that inducement was held out to defendant to make the confession. Gregg v. State, 106 Ala. 44, 17 So. 321.
A confession induced by hope was held inadmissible in Ballard v. State, 225 Ala. 202, 142 So. 668.
The rule of procedure on admission of testimony to prove a confession has been stated as follows:
See also Lewis v. State, 220 Ala. 461, 125 So. 803.
Although the rule is that where proper predicate is laid and the confession is admitted in evidence, but it afterwards appear, upon cross-examination, or otherwise from the evidence, that the confession was not voluntary, then the court should, on proper motion, exclude the confession; nevertheless, it has been held that, in the absence of the motion to exclude, the trial court cannot be put in error for permitting the evidence to remain before the jury. Lett v. State, 19 Ala.App. 298, 97 So. 148; cert. denied, 210 Ala. 699, 97 So. 923; Minton v. State, 20 Ala.App. 176, 101 So. 169. See also Dossett v. State, 19 Ala.App. 496, 98 So. 359.
In the instant case, the statute itself, Act No. 101, General Acts 1943, page 105, supra, makes the objection and motion to exclude. Under Act No. 101, supra, "The
We do not ignore the rule which has been stated as follows:
The minor had allegedly confessed that he took money, and later an amount of money had been found buried where the minor showed the witness. We do not find it shown, however, other than by the confessions, that the money recovered had, in fact, ever been stolen. If the money could be regarded as stolen, then it would be proper for the court to consider that, in consequence of the statement made by the minor, the stolen money had been found at the spot pointed out by the minor, but not his acknowledgment that he had participated in the alleged crimes or had stolen the money. Those are facts that the court must collect or not from all the circumstances of the case, and the court is "not to be aided by confessions extorted from the excited hopes of the prisoner." Murphy v. State, supra.
When the confessions of the minor are excluded, there is no evidence left to support a finding that the minor "cannot be made to lead a correct life and cannot be properly disciplined under the provisions of this chapter." A finding, which requires evidence to support it, but which is not supported by evidence, cannot be allowed to stand.
Reversed and remanded.
SIMPSON, GOODWYN, and MERRILL, JJ., concur.