I concur in the conclusions reached by BRICKEN, P. J., in the most excellent opinion written by him, except as to his conclusion and the reasoning therefor in which he holds that the facts therein stated present a question of law for the court and not one of fact for the jury and that the facts do not constitute kidnapping, and for that reason the defendant is entitled to the general charge.
I am of the opinion that if the facts stated do present a question of law alone that, in that event the state would have been entitled to an instruction that the facts stated constitute the crime of kidnapping, and if the defendant is identified as being present, aiding or abetting, he would be guilty. I am of the opinion that in this case the question of intent is for the jury. In the Clayton Case (Ala.App.)123 So. 250,1 on the same state of facts, I have written my views, but, feeling sure in the position there announced, I did not cite authority or offer argument. In view of our differences I feel impelled to add: The *Page 180 intent of secrecy is one of the elements that distinguish the offense here charged, from that of assault and battery or whitecapping. That intent must be found by the jury and may be inferred from the facts and circumstances attending the whole transaction and the presence or absence of excusing or palliating facts or circumstances. Love v. State, 16 Ala. App. 44,75 So. 189; Brown v. State, 142 Ala. 287, 38 So. 268; Jackson v. State, 94 Ala. 89, 10 So. 509; Meredith v. State,60 Ala. 441; Wigmore's Ev. § 300. In this state motive and intent remain as they were at common law — inferences to be drawn from surrounding facts and circumstances. Ala. Fert. Co. v. Reynolds Lee, 79 Ala. 497. Wherever inferences must be drawn it is the jury and not the court which must draw them. The court in instructing the jury may state legal presumptions arising from any state of facts; it cannot draw an inference of fact. Easterling v. State, 30 Ala. 46; Joseph v. Southwark F. M. Co., 99 Ala. 47, 10 So. 327; Smith v. Collins, 94 Ala. 394,10 So. 334; Pritchett v. Munroe, 22 Ala. 501; 38 Cyc. 1517d and 1518e. Some legal presumptions are conclusive and may not warrant inferences, based upon the rule that a person is presumed to do what he does. As in this case under the facts stated by the presiding judge there is a conclusive presumption that Calloway was unlawfully flogged. There is no room for any other inferences to be drawn from the facts. But, was it with the intent that the confinement should be secret? Or was it with the intent to commit an assault, regardless of whether it was secret or not? Or was it to force Calloway to confess where his stills were located (and there was some evidence tending to prove this)? The intent with which the defendant acted rested in inference and was for the jury. Or, to state it differently, the evidence as set out by the presiding judge, if believed beyond a reasonable doubt, constitutes kidnapping within the meaning of the law, provided the jury from all the facts and circumstances believe also, beyond a reasonable doubt, that the confinement was intended to be secret.
1 Ante, p. 150.