Chaney v. State

31 Ala. 342 | Ala. | 1858

RICE, C. J.

— As this prosecution was commenced before the Code went into effect, the questions presented must be determined, not by its provisions, but by the law which was of force when the indictment was found. Hiscox v. Hendree, 27 Ala. R. 216; Doe, ex dem. Kennedy v. Reynolds, ib. 364; Erankenheimer v. Slocum, 24 ib. 373 ; Code, §§ 12,14.

2. By that law, a person indicted (as in this case) for an offense which may be punished capitally, if in actual confinement, was entitled to have delivered to him, two entire days before his trial, not a list of the regular juries for the week or term, but a list of the jurors specially “summoned for his trial.” The regular juries were summoned for the trial of causes indiscriminately; not for his trial, nor for any other particular trial. In addition to them, the court was required to cause the sheriff to summon “for his trial” such number of other persons as, with the regular juries, would amount to not less than fifty, nor more than one hundred. From the additional jurors thus summoned, and the regular juries, the jury to try him was to be drawn in the mode pointed out in the statute. But it was only as to the additional jurors specially “summoned for his trial,” that the right to a list was given. — Clay’s Digest, 459, §§ 53, 54. And it was-because that right was impaired and assailed by the action of the court in the case of Parsons v. The State, 22 Ala. Rep. 50, that the judgment therein rendered by the court below was reversed.

But, in the present case, that right has not been assailed or impaired by the action of the court. Here the requisitions of the statute have been complied with. The defendant was duly furnished with a list of all the additional jurors — the jurors summoned for his trial. All of them were summoned, and seem to have been in attendance. - His complaint is as to one or two regular jurors, and rests upon the assumption, that he had a right to a list of them., He had no such right. If he obtained a list of them, that cannot create for him a right which the law did not confer. Our conclusion is, that the court did not err in its rulings as to the motion to quash the venire, and as to the objection to proceeding with the trial.

3. On the trial, the defendant offered to prove, by the sister of Christopher Price, that when she told the defendant that said Christopher Price had said he would kill Martin, the defendant sent said Christopher word, by his sister, not to do so, as he (defendant) was already under bond, and if Martin was killed, it would go hard with him, (defendant). It had been previously proved, that Price had fled; and that defendant had been ari’ested, at Martin’s instance, and bound over on a charge of stealing Martin’s money. But it does not appear at what time the sister of Price told the defendant that her brother Christopher had said he ’would kill Martin; nor at what time her brother sent by her the word to him; nor what evidence the State had adduced against the defendant; nor at what time Martin was killed. The only date given in the bill of exceptions, is the date of the conversation between the witness "Whitsett and the defendant, which was called out by the defendant himself.

It is a general rule, that a party cannot make evidence for himself, either by his acts or declarations. To this rule there are exceptions. Here, it is said, the declaration is a fact. But, in the language of Chief-Justice Parker, we answer, “the fact is also a declaration.” Conceding it to be true, “that, at the time of making the declaration, it probably had no reference to any controversy ; yet, if it be admitted that such declarations are good evidence, we shall soón find cases of declarations and assertions of a fact as having happened, with a view to support what may be afterwards done, when it is too late to have its effect, and when it may become necessary to antedate, if we may use the expression, the fact in controversy.” — Carter v. Gregory, 8 Pick. R. 165; State v. Scott, 1 Hawks, 24; Towle v. Stevenson, 1 Johns. Cases, 110 ; Jones v. Huggins, 1 Dev. 223; Perrie v. Williams, 5 Mart. Rep. N. S. 694; Ligon v. Orleans Nav. Co., 7 ib. 682; Watson v. Osborn, 8 Conn. R. 363; Parker v. Goldsmith, 16 Ala. R. 526; Reynolds v. Tompkies, 17 Ala. R. 109; Martin v. Williams, 18 ib. 190; Mahone v. Reeves, 11 ib. 345; McLean v. The State, 16 Ala. R. 672.

But, conceding that the sending word by the defendant to Christopher Price, as offered to be proved, was an act, and not a declaration; yet it was an act of the defendant offered as evidence for himself. It was an equivocal act. The time when it was done does not appear; and, to make it admissible for him, it was essential that it should appear that it occurred within the period covered by the crim-inating evidence, or that it tended in some way to explain some fact or circumstance introduced by the State, or to impair or destroy the force of some evidence for the State; “for, otherwise, the prisoner would be at liberty to take the whole range of his life, in the course of which his character and his designs may have undergone a complete change.” — 1 Phil. on Ev. (edition of 1849,) 479, 480; Roscoe’s Cr. Ev. 89; McLean v. The State, and other cases, supra ; Oliver v. The State, 17 Ala. R. 582.

The evidence as offered by the defendant, was not admissible under any general rule. If admissible at all, it could only be so upon some exception, or under certain circumstances. It is not shown to be within any exception, and no circumstances appear which would have made it admissible. We can make no intendment in favor of the party excepting; but must make all reasonable intendments in favor of the ruling of the court below. No error is shown in any of its rulings, and we must, therefore, affirm its judgment, and direct its sentence to be carried into execution.