"It is settled law that when a confession is offered in evidence against a defendant in criminal trial, the duty devolves upon the court to ascertain and declare by its ruling whether or not such confession was free and voluntary. When confessions have been admitted as evidence against a defendant's objection, the presumption is in favor of the correctness of the ruling of the trial court, on appeal, and reversal will not be had because of the admission of such evidence, unless the record affirmatively shows that manifest error was committed in the admission of such evidence." Curry v. State, 203 Ala. 239, 82 So. 489, 492, citing Price v. State,117 Ala. 113, 23 So. 691; Wilson v. State, 191 Ala. 7, 67 So. 1010; and Sharp v. State, 193 Ala. 22, 26, 69 So. 122.
We quote the essential parts of the testimony on the part of the state, with regard to the alleged "confession" of appellant, to wit:
"(J. E. Clem, Jr., the Sheriff, testifying) I know the defendant, Luther Elmore, and know where he lives; I was at his house in July 1929; I saw some liquor around the premises where he lived; it was buried out in the garden or corn field near his house, in a five gallon jug, with several gallons of whisky in it. It was buried in the corn patch about twenty or thirty yards from the house where Luther lived. I had a conversation with the defendant with reference to the liquor.
"At the time of the conversation with the defendant I was at the home of his mother, Mrs. Elmore, and at the defendant's store. I think Mrs. Elmore owned the property or it was owned by her husband. At the time of the conversation I did not have Mrs. Elmore under arrest; Mr. Gilbert, the State Law Enforcement Officer, and my two deputies, *Page 524 Ralph Pugh and Bernard Arnett were present; if they were holding Mrs. Elmore I do not know it. I stated to the defendant that we were going to arrest him and his mother both. I stated that to the defendant before he said it was his liquor.
"Before we had the conversation we had found the whisky.
"They (Luther and his mother) were living there in the same house together.
"When I found the whisky I went out to the store where Luther was — about 40 or 50 yards from where the whisky was found — about 20 or 30 yards from the house.
"I said I had found some liquor out there, and asked him whether it was his, and he said no.
"I don't remember whether it was right there or later; any way, I asked Mrs. Elmore if it was hers, and she said no. And I said, under the circumstances I will have to make a case against both of you.
"They went into the house — Luther and his mother. They called me to the front door. Luther said it was his whiskey. And Mrs. Elmore said: 'You won't take me to jail will you?' and I said no, not if Luther says it is his. After that I arrested the defendant. He said it was his whiskey before Mrs. Elmore said: 'You won't arrest me will you, I told her no, not if Luther claimed it.' "
There was some slight conflict in the state's testimony, and that of appellant, regarding the circumstances of the "confession" by appellant, but it was open to the trial court to legitimately find and conclude that they were as shown by the above-quoted testimony of the witness Sheriff Clem.
From a careful examination of the testimony in the case, we are far from being able to say — with reference to that of the "confession" — that "the record affirmatively shows that manifest error was committed in the admission of such evidence."
The evidence clearly excludes any "promises or threats," or any other "improper inducements," used by the witnesses on the part of the state, or any others, to obtain the said confession.
True, it is rather clearly apparent that the "motive" appellant had, in making the confession, was to save his mother from arrest. But, "if the confession is free and voluntary, the motive which prompted it is, as a general rule, immaterial as affecting its admissibility." 16 C. J. 719.
Or, as held by the Supreme Court of California, "a voluntary confession is not inadmissible because it was made to free another person (in that case defendant's sister) from suspicion." People v. Smalling, 94 Cal. 112, 29 P. 421.
We are yet of the opinion that under the rule stated in the case of Carr v. State, 17 Ala. App. 539, 85 So. 852, cited in our original opinion, which conforms to that outlined by the Supreme Court in the case of Curry v. State, supra, and other cases, we are unable to say that the trial court erred in admitting the testimony as to appellant's confession, in this case.
We have been led to extend our remarks, perhaps unduly, by the very earnest argument of appellant's able counsel that reversible error is shown in the trial court's ruling in the particular discussed.
All that appears above was prepared by the writer, for the court, but, after consideration, my brother SAMFORD announces his concurrence in the views expressed, on rehearing, by BRICKEN, P. J., so this opinion by me merely states my reasons for dissenting from the order granting appellant's application for rehearing, and reversing the judgment of conviction.
On Application for Rehearing by the State.