Degg v. State

43 So. 484 | Ala. | 1907

DOWDELL, J.

The laying of a predicate for the introduction in evidence of the testimony of the witnesses Girard and Moore, that had been given by them on the preliminary trial, was matter addressed to the court, and not to the jury. It was, therefore', of no importance that this was -done in the absence of and without the heai Log of the1 jury. The evidence so sought to be introduced of the witnesses Girard and Moore, the former having died and the latter having removed beyond the jurisdiction of the court, was secondary evidence, and it was necessary, under the law, that a proper and sufficient predicate should be laid before it could be admitted. It- appears from the record that the testimony of these two witnesses, had on the preliminary trial, was not reduced to writing by the- magistrate before whom the trial was had, nor by any one under his direction; but it does appear that it wus taken in stenogra.-' phic notes by a stenographer who was employed by one of the parties to the prosecution. The stenographic notes were not transcribed or put in type and read over to and subscribed by tlie witnesses during or before the termination of the preliminary trial. At some time after the trial, how long, it does not appear, the stenographic notes were transcribed or put in type, and were at a different time and place, and in the absence of the defendant, taken bt the magistrate and read over to the witnesses testifying, wiio subscribed their names as such. It. does not appear that the stenographer was an officer of the law- and that he made the notes of the testimony of the witnesses and transcribed the same in the discharge of his duty as such an officer of the law, and hence no presumption can he indulged in favor of the correctness of the stenographic notes or of the transcribing, as might he the case if such stenographer had been acting in his official capacity. The stenographer was not examined as to the correctness of the transcribing. Without evidence that the notes of the testimony and the transcribing of them correctly reported the testimony of the withess, which they purport to represent and state, other than the mere fact that the translation of the notes were subsequently, at some indefinite time and in the absence of the defendant, read over to the witness and hv such witness subscribed, a proper and sufficient predicate could not be said to he established for the admission of such secondary evidence. It needs no argument to demonstrate the wrong and injustice that might result to a defendant fiom snch practice.

Moreover, the question as to what was the testimony of these two witnesses on the preliminary trial was one of fact for the jury to determine. When the testimony of these tvm witnesses, taken down as above shown, was being read to the jury, the court instructed the jury to take this evidence as though the witness wras present in person, testifying before them. In this the court erred. The evidence was secondary, and presupposed that there was better evidence, and it was admissible upon the ground that the better evidence wras not obtainable, and for the further reason that the ends of justice might not fail because of an inability to produce the primary or better evidence. The presence of the witness delivering the testimony affords the jury an opportunity of seeing the witness, his manner, and his conduct in delivering his testimony, to determine the weight to be given it. In the admission of the secondary evidence, the jury is deprived of these conditions and circumstances in determining what weight should be accorded the1 evidence.—Fleming v. State. 150 Ala. 19, 13 South. 219.

The defendant's witness Manning should have been allowed to testify. We are not unmindful of the fact that it has been held that the admission of the testimony of a witness who has been put under the rule and who has violated the rule is in the discretion of the trial court, and as a general rule the action of the trial court in the exercise of this discretion will not be reviewed on appeal. The better practice, however, seems to be to permit the witness to testify and punish for the violation of the rule. We are of the opinion that where the rule is invoked as to witnesses, and is violated by a witness without any fault on the part of the defendant, the court lias not the right under the law to deprive the defendant of the testimony of such witness. We think the right is one guaranteed to the defendant by the constitution, and of which he may not be deprived without fault on his part. In the present case Manning was not a witness at the time the rule was invoked and the witnesses were sworn and put under the rule. His evidence at this time was not known to the defendant oi his counsel, and as soon as it became known he was sent without the hearing of the case, and Avas afterAvards SAVorn and put under the rule. It is evident that neither the witness Manning, nor the defendant, nor his counsel Avas at fault. Under these circumstances, Ave are clearly of the opinion that the defendant Avas entitled to the testimony of this Avitness as a matter of light. In support of what Ave have said above, Ave call attention to the cases cited in brief of counsel for appellant.

That portion of the oral charge of the court, excepted to by the defendant, when taken in connection with the charge as a Avhole, AA’as free from error. It Avas a conceded fact that Hasson and Dean were jointly indicted with the defendant. There Avas also evidence tending to shove that these parties participated in the difficulty, which resulted in the homicide.

Written charge 32, requested by the defendant, was properly iv-fused, it singles out and gives undue prominence to one phase of the testimony, lie,sides being argumentative.—Gilmore v. State, 126 Ala. 20, 28 South. 595; Austin v. State, 145 Ala. 37, 40 South. 989.

Charge 3(> was properly tc fused. The charge did not negative a willingness on the part of the defendant to enter into the combat, and 'there was evidence from which the jury was authorized to infer such willingness. For the same reason there was no mor in refusing charge No. -10.

In the ‘foregoing opinion' we have considered all the questions discussed by counsel for appellant in the;r brief. There v, ere many objections made and exceptions reserved cn the intioduction of evidence; but, as learned counsel for appellant declined to discuss the same, we may fairly conclude that such exceptions are wanting in merit, and, after having gone over .them, we entertain such opinion.

For the errors pointed out, the judgment of the trial couit will be reversed, and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Anderson and McClellan, JJ., concur.