57 So. 36 | Ala. | 1911
The appellant was convicted of the crime of- murder in the second degree.
The state offered to introduce a typewritten copy of the testimony of Will Harvey, deceased, given at a former trial of this case, and taken down by a stenographer. The stenographer was sworn as a witness and identi-. fied the testimony as that taken down by her at the former trial, stating that she was not sworn at the time she took it down. The defendant objected to the intro
It is the settled law of this state that the testimony of a witness at a former trial, since deceased, though not signed by him, may be introduced; and this court lias said, “It ivas competent to introduce any witness who heard his statements.” — Roberts v. State, 68 Ala. 515, 525; Lowe v. State, 86 Ala. 47, 51, 5 South. 435; Jeffries v. Castleman, 75 Ala. 262, 264; Marler v. State, 67 Ala. 55, 61, 42 Am. Rep. 95.
This court has held that such evidence is admissible even when the previous testimony was not reduced to writing, provided the witness can state the substance of all the testimony of said witness at the previous trial. —Davis v. State, 17 Ala. 354, 356, et seq.; Harris v. State, 73 Ala. 495, 497; Thompson v. State, 106 Ala. 67, 74, 75, 17 South. 512; Degg v. State, 150 Ala. 3, 43 South. 484.
This case is differentiated from the cases in other states, cited by appellant, in that in the present case, tfie stenographer, who took down the testimony in the former case, was sworn as a witness in this case, and identified the typewritten copy as the testimony taken down by her in the previous trial, which is certainly more satisfactory than the testimony of a witness, merely from his memory, as to what he testified in the previous trial.
The notes made by stenographers have been admitted, where the stenographer had no independent recollection of the testimony, and the reasoning of the courts is sound. — State of Iowa v. Smith, 99 Iowa, 26, 68 N.
There was no error in admitting this testimony.
A sufficient predicate Avas laid for the admission of the testimony of the Avitness J. E. King, as to inculpatory statements made by the defendant, and there was no error in admitting the same. — Bush v. State, 136 Ala. 85, 88, 33 South. 878, and cases cited; also, the numerous cases cited in the brief of the Attorney General.
For the same reasons, there was no error in admitting the testimony of Thomas R. Shipp, as to statements made by the defendant.
Proof of flight is always admissible, and there Avas no error in admitting the testimony as to breaking jail and flight by the defendant.
The court excluded the hearsay statements as to how he broke jail, so that the testimony Avas merely as to the flight.
For the same reasons there Avas no error in alloAving the testimony of Dr.- White as to the circumstances of the capture of the defendant after he had escaped from, custody. ■ '
There was no reversible error in permitting the Avitness Scott to testify as to statements by the defendant that no one had helped him to escape. It showed that his escape and flight was his OAvn voluntary act.
There was no error in permitting the questions to the defendant, on cross-examination, as to his escape from jail, flight, etc. A defendant who testifies is subject to cross-examination like any other witness.
There was no error in sustaining the objection by the staté to the reading of the showing as to what Nancy Blackwood would swear. It had already been read to the jury, and the witness could not state what the threats were. Besides, there was no evidence tending to
There was no error in the failure of the court to charge on the subject of manslaughter. Besides the fact that no specific charge was requested on that subject there was no evidence in the case on which manslaughter could be predicated. See authorities cited in brief •of Attorney General; Williams v. State, 147 Ala. 14, 41 South. 992.
There was no error in the refusal to give charge A requested by the defendant. As said by Brickell, O. J., in discussing a similar case, the- charge “could not have been given without misleading the jury, unless additional instructions had been given, stating that if the criminal act and the connection of the appellant were clearly proved, the absence of evidence of motive was immaterial.” — Clifton v. State, 73 Ala. 474, 479; Brunson v. State, 124 Ala. 38, 39, 40, 27 South. 410.
Charge B, requested by the defendant, was properly .refused, being “argumentative in a sense, and singling out and giving undue prominence to the facts proposed thus to be brought to the attention of the jury.” — Stone v. State, 105 Ala. 70-71, 17 South. 114, and cases cited; Fountain v. State, 98 Ala. 41, 42, 45, 13 South. 492; Campbell v. State, 133 Ala. 81, 84, 88, 31 South. 802, 91 Am. St. Rep. 17.
There being no reversible error in the record, the judgment of the court is affirmed.
Affirmed.
