Kirkland v. State

| Ala. | Nov 15, 1904

SHARPE, J.

It is the law, as declared in this State, that when on a trial of a criminal case it is shown that one. who testified on a former trial of the defendant for the same offense has removed from the State, permanently or for an indefinite time, and that his personal attendance upon the court is not obtainable, the testimony of such absent witness, given on the former trial, is admisible against the defendant on the subsequent trial. — Jacobi v. State, 133 Ala. 1" court="Ala." date_filed="1901-11-15" href="https://app.midpage.ai/document/jacobi-v-state-6519433?utm_source=webapp" opinion_id="6519433">133 Ala. 1; Percy v. State, 125 Ala. 51; Thompson v. State, 106 Ala. 67" court="Ala." date_filed="1894-11-15" href="https://app.midpage.ai/document/thompson-v-state-6516005?utm_source=webapp" opinion_id="6516005">106 Ala. 67; Lowe v. State, 86 Ala. 47" court="Ala." date_filed="1888-12-15" href="https://app.midpage.ai/document/lowe-v-state-6513326?utm_source=webapp" opinion_id="6513326">86 Ala. 47. Uuder this rule had it been proved that Peyton Kirkland had removed from the State permanently or for an indefinite time, evidence of what he swore on the habeas corpus trial of the defendant held in August, 1903, would have been admissible on the main trial. As evidence of such removal defendant had the right to prove that letters written by Peyton Kirkland were postmarked and dated in Florida. The best evidence, however, of such marking and dating would have been furnished by the papers on which the same appeared, and, therefore, the objection made to the testimony of Miss Edmondson on this subject, on the ground that it was not the highest evidence, should have been sustained. This testimony bore directly upon the inquiry under which it was offered and the fact that it was collateral to the issue of guilt vel non, did not dispense with the necessity of accounting for the absence of the papers. — Trammell v. Hudmon, 86 Ala. 472" court="Ala." date_filed="1888-12-15" href="https://app.midpage.ai/document/trammell-v-hudmon-6513420?utm_source=webapp" opinion_id="6513420">86 Ala. 472.

Ordinarily one accused of a criminal offense has a constitutional right to. be confronted on his trial with the witnesses against him. The rule which allows as evidence previously given testimony of an absent witness being exceptional and founded upon necessity, “it is esential to the admissibility of the evidence that some one of the contingencies, which are deemed to create the necessity be satisfactorily shown. — Thompson v. State, supra. It was not shown that Peyton Kirkland had been summoned or recognized to . attend the trial. On the subject of his absence’, R. H. Walker, testified “that he was the sheriff of Houston county and that a subpoena for Peyton Kirkland, as a witness for the State in this case, had been placed in his hands a short time before this trial, and that he had searched the county carefully and thoroughly and could not find him.” R. H. Maddox testified “that up to the time of the habeas corpus trial which was held in August of this year that Peyton Kirkland lived in the same community where he, defendant and Edmondson lived; that since said habeas corpus trial he had gone out of the community and was not now in the community; that he had seen a letter from said Kirkland within the last three or four weeks and that it was postmarked at Center Hill, Florida.” Miss Edmondson testified “that she was the daughter of the deceased, that since his death she had lived at Headland, Henry county, Alabama; that she knew Peyton Kirkland; that he lived at Webb, Houston county, Alabama; that he was a young man and she corresponded with him:” “that she received her last letter from him some time in October, 1903;” “that she knew the handwriting of Peyton Kirkland and that she had received letters from him prior to the one about which she was testifying.” These are quotations of testimony from the transcript and they disclose all the evidence on the subject to which they relate. Therefrom, it does not appear1 but that the letter Maddox saw was the one Miss Edmondson received or that she received more than one letter sent from Florida. It establishes no more with respect to the absence1 of the witness than that in the month next before the month of November in which the trial was had he went to Florida and had thereafter remained out of Houston county, Alabama, to the time of the trial. In onr opinion this evidence, even if the whole of it be treated as properly admitted, is insufficient to- establish a predicate for the introduction of evidence of the testimony given on the" habeas corpus trial.

The fact that deceased was carried from where he was killed in a wagon and with nothing- but a band-box under his head, was immaterial.

There was no error in admitting the evidence as to where the defendant and Edmondson lived.

The refusal of instructions to the jury involved no error. Except under circumstances involving the right to repel a forcible and felonious attempt at crime, a person attacked, is not by reason of his own freedom from fault and imminent danger, absolved from the duty of retreat, if it reasonably appears that by retreat he can avoid the danger. — Storey v. State, 71 Ala. 329" court="Ala." date_filed="1882-12-15" href="https://app.midpage.ai/document/storey-v-state-6511386?utm_source=webapp" opinion_id="6511386">71 Ala. 329. With this the first requested instruction is not consistent.

The. second requested instruction by asserting that on the facts hypothesised defendant “had the right to strike the fatal blow,” wrongly ignores the principle which limits the right of a person acting in self-defense to the use of only so much force as may reasonably seem necessary for such defense.

Beversed and remanded.