116 So. 360 | Ala. | 1928
The burden of proof or the duty of going forward with the evidence to establish, to the reasonable satisfaction of the jury, his plea of not guilty by reason of insanity, rested upon the defendant. Parrish v. State,
The rule of criminal liability vel non under such statutory plea is as was stated in Parsons v. State,
The basis for the insistence of insanity under his plea was merely the action of appellant just prior to and at the time of the homicide. This was not sufficient to bring defendant within the rule of Parsons v. State,
Affirmative instruction should not be given when there is any material fact to be inferred, or adverse and reasonable inferences of fact that may be drawn from the evidence by the jury. McMillan v. Aiken,
The charge condemned in Seaboard Air Line v. Savage,
The trial court permitted the prosecuting officers to cross-examine the Mannings or read to the witnesses extracts of questions and answers from stenographic transcripts of former testimony or statements of the witnesses to law officers on investigation of the crime and preliminary trial, and to ask the witnesses if such questions were asked and answers made. The witness should have been permitted to have the whole deposition, evidence, or statement, and examine the same and declare whether or not it was the evidence or statement of that witness. And that deposition or evidence introduced, not as evidence of independent, cumulative or original evidence of fact, but for the purpose of testing the recollection of the witness, or for impeachment. The purpose or competency or limited effect of such evidence should be explained and made plain to the jury. Queen Caroline's Case, 2 Brad. Bing. 287; Kelly v. State,
As we have observed, one of these written statements, made the subject of questions on cross-examination, was that alleged to have been taken down by a stenographer, of Mrs. Manning's declarations to officers of the law and questions propounded to her, and answers, in the "preliminary trial" before Judge Abernathy. The witness stated that she never saw the statement inquired about "until it was introduced here in court"; that witness "had never read either one of those (writings) you have."
A proper cross-examination may be had to test the recollection or accuracy of the statements of a witness, and to that end, and within the rule, may be asked if such witness had not made contradictory statements to the testimony given. If the written statement or deposition theretofore given by the witness and inquired about be not introduced in evidence, if the witness requires, may inspect or read the writing to verify its authenticity and contents, though the interrogator may not introduce it, in the first place, in evidence. Shelby Iron Co. v. Morrow,
It follows that the stenographer who made the memorandum and the transcript from his notes, testifying that he took and transcribed the same fully and accurately, may have recourse thereto on a later examination or trial, and if he has no independent recollection of the contents thereof and testifies from said notes, memorandum or transcript, the same is admissible in evidence and in aid of his testimony. St. L. San Francisco Ry. Co. v. Swaney,
In the record before us, the witness was cross-examined from transcribed notes by the official stenographer, purporting to be the detailed or private statement of the witness to state's counsel of the attendant circumstances and facts of the res gestæ of the homicide. State's counsel said to the court, "We can show at all times contradictory statements" of a witness. There was no demand by the witness of the right of inspection, it was read to her and the writing was not introduced in evidence and given to the jury for consideration with the oral evidence. Defendant's counsel objected and then moved to exclude such questions and answers on the grounds that "the record does not show that she was informed that she did have to testify, or did not have to testify; it is not sworn to; and she was not under oath. And she had nobody there to protect her or take up for her; and it is incompetent, irrelevant, and immaterial what took place the day after that, without anybody to protect her, or anybody to talk to her or consult with her, and it would be at a time when she could not be at herself, without any assistance whatever"; and from adverse rulings by the court due exceptions were reserved. The purpose of the evidence was for contradiction or for impeachment, though the jury were not specifically instructed that such was the purpose and said statements should not be considered by the jury as independent and original evidence of the material facts embraced in said inquiries, if a part of the evidence was immaterial or irrelevant, the objections should have indicated to the court, separating the competent from the incompetent testimony. Lester v. Jacobs,
The bill of exceptions recites:
"This was all the evidence introduced in the case. The defendant here offered to introduce in evidence the transcript of the testimony of Mr. Manning, the defendant, which was read before the jury. The state objected to this, and the court sustained the objection, adding: 'That is no evidence, that which they claim was the statement that he made at first.' The defendant duly excepted to the ruling of the court."
The matter thus adverted to was theretofore set out in the bill of exceptions as follows:
"That is a true and correct transcript that you have there of what I took down over there, and it is in my own typewriting as compiled by me from my shorthand notes.
"The witness was then asked the following question: I will ask you if on that occasion this question was asked of Mr. Manning, and this answer made: 'Were you standing on the porch when you shot?' And if he answered: 'No sir, I was just standing on the bottom steps.' Was that question asked and that answer made?"
"Mr. Prosch: I object to that question as incompetent, irrelevant and immaterial. This witness couldn't testify by his memory, he would have to testify as to what's on the record that he took down; and all he could testify to is to the best of his knowledge that that transcript is true and correct of what he heard and the way he understood it when it was taken down; and not read certain paragraphs in the transcript; and it is not the best evidence; the best evidence is the transcript; and because the defendant has admitted that transcript was practically the testimony he gave before the grand jury; and they are trying to make the jury think we are trying to keep something out. * * *
"Mr. Prosch: * * * I am going to make a motion to let the jury take that entire transcript in the jury room; and I make a motion now to introduce it. I am objecting to that question now as it stands, because that has been read to the jury in open court.
"The Court: Overruled.
"Mr. Prosch: We except."
The witness answered: "Yes, sir; it was" — and the motion to exclude was overruled and defendant duly excepted. The same objections, exceptions, motions, and rulings were made as to the question, "Did she get in the back way before you went out the front door?" and answer, "Well; just about the time I was about middleway of the house she was in the kitchen coming in the other room." "Yes, sir; it was." In Central of Ga. Ry. Co. v. Wilson,
There was error in declining the transcript of the Mannings' testimony — that of the preliminary investigation before Judge Abernathy. The cross-examination by the Mannings from the written memorandum should have been limited in its scope and purpose as it may be received and considered by the jury to impeach the credibility of the witnesses. Thomas Furnace Co. v. Carroll,
In Kennedy v. State,
"The testimony of the witness McCarron, taken before the magistrate on the preliminary investigation of the facts attending the killing, having been reduced to writing, the court did not err in refusing to allow him to be cross-examined as to garbled extracts taken from the writing, with a view of contradicting or impeaching him. The court properly required that the entire writing should be shown, or read to the witness, and go to the jury. Wills v. State,
There was a slight tendency of the evidence warranting the submission to the jury on the charge of murder of the existence of element of murder in the second degree — the inference or implication from the testimony of Mrs. Lucas that defendant took money from the person of the dying man after shooting him. The preponderance of the evidence is against this view. His pocketbook with about $200 was upon his person after he was shot and when about to be carried to the hospital, and the other facts tend to show a great provocation under which he fired the fatal shot before he had cooling time, after surprising deceased while attacking defendant's wife, under the circumstances detailed by her to the husband, and his personal observations in the premises a few moments before the homicide. Brewer v. State,
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur.
