Boyett v. State

130 Ala. 77 | Ala. | 1900

DOWDELL, J.

The defendant was tried and convicted on an indictment which charged that the defendant “did take Liza Austin, a girl under fourteen years of age, from her father, Ira J. Austin, for the purpose of prostitution, concubinage or marriage against the peace and dignity,” etc. The age and consequently the date of the birth of Eliza Austin, was. a material issue in the case. The defendant’s witness, John Hall, testifying to the age of said Eliza, stated “that he (witness) knew Jack Austin, his wife and their daughter Eliza. That they were married, in his best recollection, in 1883, and that Eliza was bom some time in 1884. That Eliza was born the same year that a little brother of his, who is noAV dead, ivas born. That he could not recollect what year his brother was born, but the inscription on his dead brother’s tombstone read that he ivas born in April, 1884.” This latter portion of the witness’ statement, namely, the inscription on his dead brother’s tombstone read that he was born in April, 1884, was on motion of the solicitor excluded from evidence, and to this action of the court the defendant excepted.

Treating of this character of evidence, in 1 Green-leaf (16th ed.), section 114<£, it is said: “Inscriptions on tombstones and other funeral monuments, engraving's on rings, inscriptions on family portraits, charts, or pedigrees, and the like, are also admissible, as original evidence of the same fact. Those which are proved to have been made by or under the direction of a deceased relative are admitted as his declarations. But if they have been publicly exhibited and were well known to the family, the publicity of them supplies the defect of proof in not showing that they were declarations of [specified] deceased members of the family; and they are admitted on the ground of tacit and common assent; it is presumed that the relatives of the family would not permit an inscription without foundation to remain; and that a person would not wear a ring with an error on it; [so that where the chart, Bible, or other document is put in as representing the tacit family opinion by reason of its public exposure in the family, it is therefore immaterial who wrote or printed it, nor need the writing be authenticated other than by the fact of its exposure in the family; and conversely, where such a document, for example, an entry in a family Bible, is put in as the statement of an individual member, by proving the handwriting, it is unnecessary to connect it with the family, as a whole by showing a public exposure in the family.]” And in 1 Taylor on Evidence, section 652, it is said: “Inscriptions on tombstones, coffin plates, mural monuments, family portraits, engravings on rings, hatchment, charts of pedigree, and the like, are also admissible. Those which are proved to have been made by, or under the direction of, a deceased relative, are admitted as bis declarations. But if they have been publicly exhibited, and may therefore be supposed to have been well known to the family, their publicity supplies any defect of proof that they were declarations of deceased members of the family; and they are admitted on the ground of tacit and common assent. It is presumed, — though this is a presumption which is doubtless often contrary to the fact, — that the relatives of a family would not permit an erroneous inscription to remain; and that a person would not knowingly wear a ring which bore a misstatement upon it.” To the same effect is Phillipps on Evidence, Vol. 1, pp. 221-228; 1 Rice on Evidence, p. 419; also Underhill on Evidence, pp. 72, 78, § 53. All of these elementary writers cite as leading cases among other authorities, the cases of Monkton v. Atty.-Gen., 2 Russ. & Myl. 163, and Daviss v. Lowndes, 7 Scott, N. R. 193, wherein it is said in this latter case by Parke, B.: “The ground upon which the inscription on a tombstone or a tablet in a church is admitted, is that it is presumed to have been put there by a member of the family cognizant of the facts, and whose declaration would be evidencie.” The rule as to the admission in evidence of inscriptions on tombstones seems clearly to rest upon the presumption that it was placed there by some member of the family having knowledge of the fact, and again upon the presumption, owing to its publicity, it would not be permitted to remain if it was erroneous. Unlike oral declarations as to matters of pedigree, it is not essential to its admissibility that it should be shown to have been made by some particular member of the family, since deceased. It is only necessary to show by the secondary evidence the fact of such inscription upon the tombstone, and what the inscription is. The tendency of the evidence of the witness, John Hall, was to show the date of the birth of the girl Eliza, and upon the foregoing authorities our conclusion is, that the court erred in excluding, this evidence. But while admissible as tending to show such fact, it was open to impeachment or contradiction by other competent evidence tending to show the contrary.

Charge No. 1 requested by the defendant was properly refused by the court, as the 'same withdrew from the consideration of the jury the charge, in the indictment that the defendant took the said Eliza for the purpose of prostitution or marriage.

'Whitten charge No. 2 requested by the defendant was purely argumentative, and was therefore properly refused.

Charge No. 3 requested by the defendant, like charge No. 1, Aims erroneous in withdrawing from the consideration of the jury the charge laid in the indictment that the defomhmt took the said Eliza for the purpose of marriage.

That part of the court’s oral charge excepted to wherein lite court undertook to explain to the jury the meaning of the expression “probability of innocence,” Avas too favorable to the defendant; and although erroneous in stating as a conclusion of law “that, if there was as much or more evidence sliOAving innocence than there was showing guilt, then there Avould be a probability of the defendant's innocence,” it Avas not prejudicial to the defendant.

For the error pointed out in the exclusion of evidence, the judgment of the court must be reversed, and the cause remanded.

lieversed and remanded.