Bell v. State

47 So. 242 | Ala. | 1908

McCLELLAN, J.

The defendant was convicted of manslaughter in the first degree. The entire testimony for the state, and of the most material importance on the trial, consisted of the statements of two absent witnesses taken down on the preliminary trial of this defendant. A predicate for the introduction of these statements was undertaken to be laid; but it was insufficient, in that it was not shown, by inference even, that these witnesses were at the time of trial outside the state. The most that could be said of the testimony assuming to lead to the establishment of the proper predicate is that a deputy sheriff had been unable to locate these .men in the southern part of Covington county and in the neighboring part of Florida. The essentials to the laying of a sufficient predicate for the introduction of such testimony have been too often declared here to necessitate a repetition. — 5 Mayfield’s Dig. p. 414; Kirkland’s Case, 141 Ala. 43, 37 South. 352.

While the fact of having seen a letter purporting to be from the absent witnesses was admissible as primary evidence, the letter and containing envelope were the best evidence of their source, contents and postmark, and, until their loss was shown, other evidence in respect to them was inadmissible. — Kirkland v. State, 141 Ala. 45, 37 South. 352.

The special charges, requested for the defendant, do not appear, from this record, to have been separately so requested. The court cannot, therefore, be put in error', unless all of the requested charges were good. Among those asked is the affirmative charge for the defendant, which could not have been properly given under the state of the proof.

For the error in the admission of the statements of the absent witnesses, the judgment is reversed, and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Dowdell and Anderson, JJ., concur.