Hardaman v. State, 78 So. 324

SAMFORD, J.

[1-4] On the trial, the state, over the objection and exception of the defendant, admitted secondary evidence of thе testimony of a state’s witness, who had been examined as a witness on a former trial of the same case, but who was not prеsent on the present trial. It has been frequently held by the courts of this state that if a witness, who has been examined in a criminal case before a tribunal of competent jurisdiction, is not subsequently, after diligent search, found within the jurisdiction of the court, it is admissible tо prove the testimony he formerly gave. Percy v. State, 125 Ala. 53, 27 South. 844. The predicate for this must be shown to the court by competent evidence, and if in hearing this question there was incompetent evidence introduced along with other evidence which was suffiсient of itself to establish the predicate, the action oi the court in admitting such incompetent evidence would not аuthorize a reversal. Jacobi v. State, 133 Ala. 16, 17, 32 South. 158. It was shown that the absent witness had lived in the county and community. It was not shown that he had evеr lived at any other place in the state, or had any business ‍​‌‌​‌​‌‌‌​‌‌​‌‌​​​‌‌‌​‌‌​‌​‌‌​‌​‌‌​‌‌‌​​‌​​​‌‌​​‍to call him elsewhere in the state; he was present at the former trial; he declared to numerous persons his intention to join the United States army, to be sent to Georgia; he disappеared from the community, and his former friends and associates saw him no more; the deputy sheriff says he sought him diligently on two occаsions, when he had papers to serve on him, and he could not be found; the subpoena docket showed two subpoenas returned not found. The statements of his intentions were competent and admissible. Jacobi v. State, supra. Every reasonablе presumption is indulged in favor of the finding of the trial court on a question of this kind. Harwell v. State, 12 Ala. App. 265, 68 South. 500. Under all the facts, we cannot say thаt the trial court erred in admitting the testimony. Harwell v. State, 12 Ala. App. 265, 68 South. 500; Pope v. State, 183 Ala. 61, 63 South. 71; Jacobi v. State, 133 Ala. 1, 32 South. 158.

[5] The theory of the state was that the motive for the killing was that the defendant might retain a large quantity of whisky which had been secreted on defendant’s place by the deceased, and for that purpose, and as tending to show motive, the state was permitted to prove, over the objection of the defendant, ‍​‌‌​‌​‌‌‌​‌‌​‌‌​​​‌‌‌​‌‌​‌​‌‌​‌​‌‌​‌‌‌​​‌​​​‌‌​​‍that at the time of the killing the deceased had secreted under defendant's hduse, with the knowledge and consent of defendant, sevеral barrels of whisky. Any testimony which can furnish aid to the jury in determining the issue, or which sheds light on the transaction, is competent. Redd v. State, 68 Ala. 492. And whеre a crime is shown to have been committed, and the circumstances point to the accused as the guilty agent, prоof of a motive, although weak and inconclusive, is nevsrtheless admissible. Overstreet v. State, 46 Ala. 30.

[6] It having been shown that the deceased was shot with a bullet, it was relevant evidence that the defendant was carrying a rifle at the time he went down the road, shortly bеfore the shooting, and the fact’ that he carried the rifle at other times, while immaterial, was without injury.

[7-9] While it was error for the soliсitor to ask the witness Hickman as to the character of defendant, without having laid a proper predicate, the defendant was not injured by the error; the witness, in answering, saying that he could not say it was Dad., The court did not err in refusing to permit the defendаnt to go into an explanation and details as to how the secreted whisky came into his possession. That was not a material issue. The purpose of the state in showing the fact ‍​‌‌​‌​‌‌‌​‌‌​‌‌​​​‌‌‌​‌‌​‌​‌‌​‌​‌‌​‌‌‌​​‌​​​‌‌​​‍of .the secreted whisky was to show the jury a motive for the killing; i. e., that the dеfendant might keép the whisky. The fact that it was there, secreted in such a way as that the removal of the deceased would hаve left defendant in the undisturbed possession of it, was a relevant fact. How or why it was there was not relevant for any purpose. The fact that if was whisky did not affect the principle. If it had been flour or meat, it would have been the same thing.

[10] The theory оf the defense was that the deceased was attempting to have sexual intercourse with a daughter of defendant against her will, and that while so engaged defendant fired the shot; while the testimony for the state was to the effect that the deceаsed had had the intercourse with the consent of the girl, and that it had been finished at the time of the killing. It was therefore compеtent to rebut this by proving the relationship existing between the deceased and the said daughter, had with a knowledge and acquiescence of the defendant, as tending to impeach the testimony of the defendant arid his daughter. If the relationship existеd between the daughter and deceased with the knowledge and acquiescence of defendant, as testified to by the stаte’s witnesses, and for the length of time testified to, sleeping with her, taking her to the woods, and having intercourse with her, drinking with her, and otherwisе being on terms of the most familiar and criminal intimacy, the jury might well conclude that the testimony of the state’s witnesses as to the willingness of the intercourse at or near the time of the killing was correct, and that the statements of the daughter and the defendant, as to what took place were untrue. Again, if these relations did exist, and had existed for some time, and had continued with the knowlеdge of the defendant, the jury would be warranted in looking somewhere else for a motive, rather than to say the killing was done for the purpose of protecting the virtue of a daughter. The ease of Rogers v. State, 117 Ala. 9, 22 South. 666, is not at all in point, and in no way conflicts with the foregoing views.

[11] The question asked the witness Clements, “if defendant did not tell him, a short time before Dixon was killed, and at defendant’s home, that if he would go in with him ‍​‌‌​‌​‌‌‌​‌‌​‌‌​​​‌‌‌​‌‌​‌​‌‌​‌​‌‌​‌‌‌​​‌​​​‌‌​​‍and kill John Frazier and Dixon they would get their whisky,” was without error, as the testimony called for was admissible as rеlating to the motive of the defendant.

We find no error in the record, and the judgment is affirmed.

Affirmed.

On Rehearing.

[12] Upon consideration of the aрplication for rehearing, my Brothers are of the opinion that the trial court committed prejudicial error in permitting the state to prove, over the objection of the defendant, that the defendant carried a rifle after the offense was committed, such evidence tending to prejudice the minds of the jury against him, and that for this error the judgment of the court should be reversed.

The application for rehearing is granted, the affirmance set ‍​‌‌​‌​‌‌‌​‌‌​‌‌​​​‌‌‌​‌‌​‌​‌‌​‌​‌‌​‌‌‌​​‌​​​‌‌​​‍aside, the judgment is reversed, and the cause is remanded.

Case Details

Case Name: Hardaman v. State

Court Name: Alabama Court of Appeals

Date Published: Feb 12, 1918

Citations: 78 So. 324; 16 Ala. App. 408; 1918 Ala. App. LEXIS 87; 6 Div. 472.

Docket Number: 6 Div. 472.

Court Abbreviation: Ala. Ct. App.