Cotton v. State

87 Ala. 75 | Ala. | 1888

McCLELLAN, J.

The defendants in the court below were identified by the prosecutrix, as the perpetrators of the crime. It was attempted to be shown that, before their arrest, she had given descriptions of them, which were not accurate. The purpose, and only legitimate effect of this testimony was, to engender in the minds of the jury a doubt as to the certainty of her subsequent identification of the parties. To meet this tendency, it was entirely competent to show that she fixed upon these men as the criminals, out of a number who had been brought before her. To be able to select one or more out of a multitude, or out of any greater number, is one of the ordinary tests of the correctness of the identification; and the fact that the prosecutrix did this, goes to show that, although she may have expressed an inaccurate description, she evidenced no hesitation or uncertainty in pointing out the defendants, when they and others were brought befoie her.

A defendant can claim no advantage, on appeal, for an error which he superinduced; nor can he predica:e an assignment of error on the refusal of the trial court to exclude testimony, which he has adduced before the jury. The action of the Circuit Court in overruling the defendants’ motion to exclude the evidence of the witness Hatton, whether erroneous or not, abstractly considered, can not avail the appellants.—Ex parte Winston, 52 Ala. 421; Shelton v. State, 73 Ala. 5.

The rule as to the inviolability of professional confidences applies, as between attorney and client, only to communications made and received for the purposes of professional action and aid, and the secrecy imposed extends to no other persons than those sustaining to each other the confidential relationship, except the necessary organs of communication between them, such as interpreters, and their own agents and clerks. If the parties choose to hold their conferences in the presence and hearing of third persons, whether they be officers of the law, and, as such, charged with the custody of the client, and hence necessarily present, or indifferent bystanders, there is no rule of law which forbids such third persons to depose to facts thus coming to their knowledge. The evidence of the witness Mosely, who was the jailor, as to what one of the defendants told his attorney in his presence, was properly admitted. We, of course, are not to be understood as intimating that it is not the duty of officers, having the custody of alleged criminals, to afford them every opportunity, consistent with the safe-keeping of their prisoner, for private consultation with their attorneys.

The defendant Greene Cotton having testified that he was in Milton, Florida, on the 26th day of October — the day on which the offense was committed — it was entirely competent for the State to impeach' and discredit his evidence in this connection, a proper predicate therefor having been laid, by showing that, either in court or elsewhere, he had made statements, by affidavits or otherwise, as to his whereabouts on that day, which were inconsistent with his statements on the trial.

We are unable to see that the testimony adduced by the State, to the effect that the defendant Hendrix had sworn, on his application for a continuance made at a former term, that there was a large number of witnesses, at different points in Florida, whose names were unknown to him, and could not be ascertained in time to be stated in the application, &c., was pertinent to any issue in the case. As the matter is presented in the bill of exceptions, this statement is not inconsistent with any fact deposed to by this defendant on the trial; and it was therefore irrelevant for the purpose of impeachment, for which it appears to have been introduced. It should have been excluded.

The evidence which tended to establish the guilt of the defendants, was both direct and circumstantial. The charges requested by the defendants ignored entirely all the positive testimony in the case, and required the court to direct the attention of the jury alone to the circumstances which, in greater or less degree, bore upon the question of guilt. Their tendency was to obscure the most potent facts adduced before the jury, and to authorize a determination of the question of guilt vel non upon a consideration of a part, and that probably the least important part of the evidence. They were clearly misleading, if not in a certain sense abstract, and were properly refused.—A. G. S. R. R. Co. v. Jones, 71 Ala. 487.

In the case of Yandy Hick, at this term, ante, p. 61, it was held that an order for the organization of a special jury under the law applicable to Dale county, which directed the sheriff to summon “sixty persons, including those summoned on the regular juries for the week,” was irregular- and erroneous, when, as in that ease, and in this, the order for the jury, and setting a day for the trial, was made, and the trial had in the same week. Such was the order in this case; and on the authority of the case referred to, the judgment of conviction will be reversed, and the cause remanded.

Reversed and remanded.