Harris v. State

73 Ala. 495 | Ala. | 1883

BBICKELL, C. J.

— The recorder of the city of Montgomery is clothed with jurisdiction of violations of the ordinances of the city, and, in addition, with “all the powers and authority that belong to justices of the peace in criminal matters, by the laws of this-State.” — Pamph. Acts, .1869-70, p. 363, §10; Pamph. Acts, 1880-1, p. 496, § 2. The powers and authority of justices of the peace include plenary jurisdiction as committing magistrates — the jurisdiction to inquire and determine whether there is probable cause to believe a criminal offense has been committed, and that the person charged is guilty of its commission. The recorder had, and was exercising the jurisdiction of a committing magistrate, in the inquiry as to the guilt or innocence of appellant of the offense with which he is now indicted, when the absent witness, Ellen Gamble, was examined. The appellant was present on the inquiry, and had the opportunity of cross-examination. The inquiry was the inception of the prosecution ; the indictment is its continuation; the issues involved are the same, and there is identity of parties. If a necessity existed which authorized the introduction of secondary evidence of the testimony given by the absent witness on the hearing before - the recorder, there was no force in the objection, that the hearing 'before him was illegal, or that the parties and the issue were not the same. It is well settled that evidence is admissible on the trial in chief, of what a deceased witness testified on the preliminary hearing before a committing magistrate. It is the duty of the magistrate to reduce the examination to writing, and if he observe the duty, the writing is the best evidence, and must be produced, or a satisfactory account given for its absence. But if he neglect the duty, the testimony given may be proved by any witness who-heard and remembers it substantially. — Tharp v. State, 15 Ala. 749; Davis v. State, 17 Ala. 354.

The specific objections taken in the court below do not raise the inquiry, whether the absence of a witness from the State, temporary or permanent, not induced by the act of the defendant, will in a criminal case authorize the introduction of evidence of the testimony given by him on a former trial; and we abstain from the intimation of an opinion upon that question. The substance of the objections is, that it was not shown that the witness was absent from the State. We are of opinion the objections were well taken, and ought to have been sustained. Testimony of this kind is admitted with great caution, only from necessity, and to prevent a failure of justice. The necessity, whether it is supposed to arise from death, or insanity, or from other cause rendering impracticable the production and examination of the witness, ought to be shown clearly. Allowing to the evidence explanatory of the failure to produce the witness the greatest weight which can be justly claimed for it, and it proves no more than her disappearance from the place of her residence at the time of her former ex-, animation. It is as consistent with the hypothesis that she is elsewhere in the State, and within the jurisdiction of the court, as that she is absent from, or residing without the State. Her declarations of an intention to go to Georgia were not contemporaneous with her disappearance, and they were connected with a declaration of a purpose to go with a particular person, whom she did not accompany. A case was not made which authorized the introduction of evidence of her testimony on the former trial.

The purpose of introducing evidence of the declarations made by her when arrested upon the charge of having stolen the turkeys, is not shown by the bill of exceptions. We are not aware of any purpose for which it ought to have been received. The declarations were not explanatory of her possession of the turkeys, for, before making them, she had parted with the possession. The possession was a past, and not a present, existing fact. The declarations of a stranger which are merely narrative of a past occurrence or fact, are not admissible evidence, either as explanatory, or of the existence of the occurrence or fact. — 1 Greenl. on Ev. § 110.

These errors compel a reversal of the judgment, and it is not necessary to consider the other matters pressed in the argument of counsel.

Reversed and remanded.