Childs v. State, 55 Ala. 25

Childs v. State

55 Ala. 25 | Ala. | 1876

BRICKELL, C. J.-

We do not discover that the certified transcript of the original indictment and proceedings thereon in the Circuit Court of the county of Dale, was defective. It seems sufficient; and if it was not, the defects were cured by the second transcript. It was not necessary that the clerk's certificate should have been under his seal, private or official. Bishop v. State, 30 Ala. 34. Nor was the second transcript objectionable, merely because it was made out and certified by the clerk in the county of Hern~y. In Collier v. State, 2 Stew. 388, it was held, a clerk could, without his county, certify a transcript of the record and proceedings of a cause pending in his court, but removed by a change of venue to another county. --

2. The fae~ thal5, at the time of the ki1li~g, an indictment was pending against the accused for stealing corn, the property of the deceased, and that she was the prosecutrix and the principal witness, it was proper to receive in evidence. It affected. the inquiry, arising naturally, whether the accused *28bad any motive for taking ber life, and wbetber tbey bore malice to ber. Its sufficiency is matter tbe jury must determine ; of its admissibility there is no doubt. But, in receiving oral evidence of tbe indictment, and its contents, tbe court erred.

3. Tbe court also erred in permitting tbe witnesses Garner and Daugbtry to testify to tbe declarations made to tbem by tbe witness Barnes, corresponding to bis testimony on tbe trial. After a tborougb examination of tbe authorities, in Nichols v. Stewart, 20 Ala. 358, it was held, that declarations, verbal or written, made by a witness out of court, ás a general rule, are inadmissible in corroboration of bis testimony on the trial of a cause. This case does not fall within any of tbe recognized exceptions. — 1 Greenl. Ev.

5. It is well established that tbe wife of one of several defendants, accused of a crime alleged to have been jointly committed, is an incompetent witness, when all of tbem are on trial, for any of bis associates. — 1 Bish. Cr. Pr. § 1019.

"We find no other errors in tbe record, than those already noticed. Eor these, tbe judgment must be reversed, and tbe cause remanded. Tbe prisoners will remain in custody, until discharged by due course of law.