78 So. 324 | Ala. Ct. App. | 1918
On the trial, the state, over the objection and exception of the defendant, admitted secondary evidence of the 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 present 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 to prove the testimony he formerly gave. Percy v. State,
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 house, with the knowledge and consent of defendant, several 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,
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 before the shooting, and the fact that he carried the rifle at other times, while immaterial, was without injury.
While it was error for the solicitor 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 bad. The court did not err in refusing to permit the defendant 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 defendant might keep the whisky. The fact that it was there, secreted in such a way as that the removal of the deceased would have 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 it was whisky did not affect the principle. If it had been flour or meat, it would have been the same thing.
The theory of 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 deceased 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 competent 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 and his daughter. If the relationship existed between the daughter and deceased with the knowledge and acquiescence of defendant, as testified to by the state'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 otherwise 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 knowledge 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 case of Rogers v. State,
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 relating to the motive of the defendant.
We find no error in the record, and the judgment is affirmed.
Affirmed.
The application for rehearing is granted, the affirmance set aside, the judgment is reversed, and the cause is remanded. *410