| Ala. | Nov 15, 1894
A prominent question in this case is whether a predicate for the admission of testimony of an absent witness given for the State on the preliminary examination of the charge against the defendant, was sufficiently proved. This question was exclusively for the determination of the judge below subject to review by this court; the jury was not concerned with it at all. And in reviewing the conclusion reached by the judge of the city court upon it, the inquiry presented to us has reference to the quantum of legal or unchallenged testimony adduced, and not to any errors that may have been committed by the judge in receiving illegal testimony on the issue against defendant’s objection. With legal and properly objected to illegal testimony before the lower court, if the legal evidence justifies the conclusion reached, it is to be presumed on appeal that the judge acted only on the legal evidence, and his action will be affirmed wholly regardless of errors committed
The witness whose testimony on the former trial it was proposed tobe proved,Paul J. Collier, was the owner of the property alleged to have been stolen. So far as appears he was never in Talladega or in the State except on the occasion of the loss of his property, a valise and its contents, when he remained, it seems, only long enough to recover it and to attend the preliminary trial which was had a day or two afterwards. It was affirmatively shown that he was a traveller by rail proceeding from the direction of Mississippi in the direction of Georgia when he lost his baggage. The question before the judge of the city court was whether he had left the State permanently or for an indefinite period of time. On this inquiry the fact that he had resumed his journey immediately after recovering his property and testifying before the magistrate was material; it tended to show and was the initial step toward showing that he had left the State. His declarations at that time as to the pnrposes and destination of his journey were of the res gestee of that material fact and as such properly before the trial judge to be considered in determining the fact and the character of the witness’s absence from the State. They were to the effect that the journey he was then upon begun in Mississippi or Arkansas and was intended to end at his, the witness’s, home in Georgia. These declarations explanatory of the journey he was upon went to show pretty clearly that the witness had no abiding place in Alabama nor business here éxcept to pass through the State to Georgia; that he had gone on to Georgia and had no occasion or intention of returning to this State at any time certain or at all except perhaps for the purpose of passing again through the State. A subpoena was issued for him in this case, and returned not found ; and this fact -was in evidence, and there was other evidence tending to show that Collier did not reside in Talladega county. On these facts, we concur in the conclusion reached by the trial judge that the predicate for proof of Collier’s former testimony was established with reasonable and adequate certainty, and hold that the city court did not err in allowing such proof to be made. The former testimony of Collier thus reproduced showed the corpus delicti, and rendered the defendant’s confession
There is no merit in the further objection to the introduction of defendant’s confessions which proceeds on the idea that they were not freely and voluntarily made. The fact that they were so made clearly appears, in one instance, from the circumstances under which they were made, and in the other, by affirmative evidence negativing all improper influence.
The judgment of the city court must be affirmed.