71 Ala. 322 | Ala. | 1882
Lead Opinion
The present case raises a single question — the construction of the act approved December 2, 1882 — Pamph. Acts, 4. By that statute it was enacted, “That on the trial of
The statement is to be made without oath. In all civilized communities, some ceremony or solemn act is prescribed, as a condition precedent to giving testimony. In nations or states professing the Christian religion, there is an appeal to Almighty God, or an adjuration on the IToly Evangelists, that the testimony to be given shall be the truth. This is a most solemn recognition of an All-seeing, Omnipotent Ruler, who will reward or punish in this world, or the next, according to the deeds done in the body. This is the sanction which the law exacts, and imposes upon the conscience, before it permits a witness to testify. — 1 Greenl. Ev. § 328. In fact, every instrumentality connected with the administration of the law, is required to be oath-bound. Such has been the law as far back as our knowledge of English jurisprudence extends.
In addition to the sense of Divine accountability acknowledged in taking an oath, human law has denounced severe punishment against him who bears false witness. Perjury is conspicuous as the most common of all the degrading offenses which fall under the generic name of the arimen falsi, because it is so easy of perpetration. It tends to contaminate the very fountains of justice; and hence, the solemn sanctions which legislation and immemorial usage have thrown around the giving of evidence, which is to shape the destiny of life, liberty and property. To overturn a principle so ancient, and so deep-grounded in our jurisprudence, should require clear and explicit language.
Defendants may make a statement of the facts in their own behalf. To state, is defined to be, “To express the particulars of, in writing or in words; to place in mental view, or represent all the circumstances of modification; to make known specifically ; to explain particularly.” Applying the words of the statute to the case it was intended to meet: The prosecution first places before the jury the criminating facts and circumstances. Then the accused produces his exculpatory testimony, if he have any. lie may then make a statement as to the facts, if he elect to do so. That is, he may give his version of the particulars; he may represent all the circumstances of modification ; he may make known, or explain particularly and specifically, “but not under oath.”
What we have said above is but a plain exjjosition of the language of the statute. Statutes, somewhat resembling ours, are found in other States. In most of them the provision is,
There have been many rulings on statutes similar to ours. In the case of People v. Jones, supra, the statement not being under oath, the court expressed its view of the construction of their statute, by approving a charge in the following language: “To determine the guilt or innocence of the accused, you may and should take into consideration all the facts and circumstances, as they appear to you from the proofs in the case. And, in connection with all the other proofs in the case, you have a right to take into consideration the statement of the prisoner, and give it such weight and credit as you think it entitled to, under all the facts and circumstances of the case.And you may give it more weight than' the sworn testimony of unimpeached witnesses, if, under all the facts and circumstances of the case, you honestly believe it entitled to such weight; but in order to find what weight you ought to give to his statement, you should consider whether it is consistent with the other facts which may have been proven to your satisfaction, and whether his statement is corroborated or not by other proofs, facts, or circumstances of the case.” The Michigan court, in its opinion, after approving the foregoing charge, added : “Such a statement, not being upon oath, and being made under very strong temptation to favor himself, should be subjected, at least, to all the scrutiny to which sworn testimony is subject.” And in People v. Arnold, 40 Mich. 710, the same court, in 1879, said : “The law allows such weight to be given to the statement [of the accused], as the jury may consider due to it, and it can not be assumed by the judge, on submitting it, that it is not to be believed; and hence it is not competent to lead the jury to suppose that they may reject the facts given in the statement, simply because they are .not proved by others.” The Michigan statute, it will be remembered, allowed cross-examination.
The Florida statute allowed the defendant to make a statement on oath. In Miller v. The State, 15 Fla. 577, and in Barber v. The State, 13 Fla. 681, the court said: “It is the jury alone who are entitled to consider the statement, and if it
We have not been able to find the Georgia statute in our library, but from a remark of the court in Brown v. The State, 60 Ga. 210, we infer the statement was to be made without oath. That court said: “The statute says the statement is to have such force only as 'the jury think proper to give it. Doubtless, the object of the statement is to enable the jury better to understand the testimony. Still, the effect which they think proper to give it is the effect which it is to have. O course, the jury should not lose sight of the terms .of their oath. They sweai- to give a true verdict acrording to the evidence, and this they should do. . . As a general rule, sworn evidence must be more trustworthy than the prisoner’s bare word.” In the older case of Ross v. The State, 59 Ga. 248, the same court, in speaking of the same statute, had said : “We see no error in the charge that the statement of the prisoner was not evidence, but was entitled only to such weight as they chose to give it.” So, in Miller v. The State, 15 Fla. 577, although the accused was required to make his statement on oatli, the court ruled, that he did not thereby become a witness.
The statutes of the other .States generally make the accused a witness in his own behalf, if he choose to testify; and even the statute of Michigan, which required no oath, subjected the defendant, if he made a statement, to a cross-examination. State v. Witham, 72 Me. 531; People v. Brown, 72 N. Y. 571; S. C. 28 Amer. Rep. 183; State v. Clinton, 67 Mo. 380; S. C. 29 Amer. Rep. 506; State v. Cohn, 9 Nev. 179; Hanoff v. The State, 37 Ohio Stat. 178.
Recurring to our statute, copied above, we may well ask, why was the legislature so guarded in . the language it employed. “Make a statement as to the facts in their own behalf, but not under oath,” is the language of the statute. Witness, evidence, testimony are ignored, and oath is named only to be interdicted. If the legislature had intended to allow defendants to become witnesses, or their statements to become evidence, it was easy to say so, and we think it would have been said. We can not think such was their intention; at least, in a legal sense.
But, when we have reached this conclusion, we do not mean to say the jury can. wantonly and capriciously disregard the
Defendants thus making statements, not being witnesses, nor their statements strictly evidence, it results,
First: That they are not subject to examination, or cross-examination, as witnesses are.
Second: While their statements may be subjected to all the tests for ascertaining truth, which spring out of the proof in the cause, the consistency or probability vel non of the statements made, the defendants’ manner in making the statements, and the interest they must feel in the result, they can not be impeached, as witnesses are, by proof of bad character, by cross-examination, nor by any other proof of extrinsic facts, introduced for such purpose.
Statements under the statute are the subject of legitimate comment by counsel, in addressing the jury.-Beasly v. The State, post, p. 328.
The Circuit Court erred in allowing counsel either to examine, or cross-examine the defendant.
Reversed and remanded. Let the accused remain in custody until discharged by due course of- law.
Concurrence Opinion
I concur in the conclusion reached that a defendant, in mailing his statement as to the facts in his own behalf, does not become a witness to all intents and purposes. If the General Assembly had intended this, nothing would have been easier than to have so declared in express terms. I also concur in the view that he can not be examined as a witness without h'is consent — -this being really the sole question raised for our decision by the record. By making his statement he does not necessarily waive the privilege of refusing to criminate himself, which is a constitutional, as well as common law right.