124 Ala. 64 | Ala. | 1899
— It has now become a settled question by the decisions of this court, that where a witness, who has been examined in a criminal case before a competent tribunal, cannot be subsequently found, after diligent search, Avithin the jurisdiction of the court, or is shown to be dead, insane, or that his place of permanent residence is without the State, it is admissible to prove the substance of the evidence given by him upon the former trial. — Burton v. State, 115 Ala. 10; Mitchell v. State, 114 Ala..3, 4; Burton v. State, 107 Ala. 73; Lowery v. State, 98 Ala. 47; Pruitt v. State, 92 Ala. 42, 43; Perry v. State, 87 Ala. 30; Lowe v. State, 86 Ala. 47.
The proof as to the non-residence of the witness Howard furnished a sufficient predicate for the introduction of secondary evidence as to the testimony given by him upon the former trial before the committing magistrate.
It is a matter addressed to the court, in laying the predicate for the introduction of secondary evidence, and for the purpose of showing the identity of the case on trial Avith that of the charge on the former preliminary hearing, the production of the affidavit and warrant is not essential. That the former trial was for the same offense, may be shown by parol evidence, hot being a fact in issue, but simply collateral.. .
The evident purpose of the solicitor’s question to the Avitness Luman Savage, “Who did he (defendant) tell you in the first conversation he got the harness from?” Avas to show a different’person from that given by the defendant in the second conversation, and the” answer of the witness that he had forgotten the name Of the per
There was no error in excluding the evidence of defendant’s witness, Abrans, “that John Howard told him; witness, that he, Howard, had harness in the sack.” This was purely hearsay.
We find no error in the record, and the judgment of the circuit court is affirmed.
