Marler v. States, 68 Ala. 580

Marler v. States

68 Ala. 580 | Ala. | 1881

SOMERYILLE, J.

The grand jury, which found the indictment in this case, was a legally constituted body, we think, notwithstanding the act of February 13, 1879, which was passed to regulate the drawing of grand juries in the several counties specified in the act, among which is included the county of Crenshaw.—Acts 1878-79, p. 204. This act reduced the number of persons to be drawn, for organizing grand juries in these several counties, to fifteen, the general law in the Code requiring eighteen to be drawn for such purpose.—Code, 1876, § 4738. It was not intended, however, to be retroactive in its operation, but prospective only. It had reference only to such drawing of grand jurors as might take place subsequent to the passage of the act in the designated counties. The grand jury here was drawn before this date, and in accordance with the requirement of the law governing such transactions at the time it was done. It was, therefore, unaffected by the special act in question.

The court below properly refused to exclude the testimony of the elder Redman, detailing a conversation between the s defendant, Marler, and himself in reference to Marler getting a divorce from his wife, and desiring to marry witness’ daughter. This evidence tended to prove an eagerness on defendant’s part to obtain the divorce, and, therefore, to show a motive for killing deceased, who was a witness in the divorce proceedings, and was supposed to be hostile to defendant’s purposes.—Marler v. The State, 67 Ala. 55; Hall v. The State, 40 Ala. 698; Johnson v. The State, 17 Ala. 618.

The testimony of the witness, Gilchrist, was properly admitted. The first portion of it was an implied threat against the deceased, and the latter part tended to prove the existence of a motive for killing him, for the like reason assigned in reference to the evidence given in by Redman, to which we have above alluded.

The record of the divorce proceedings, pending between defendant and his wife, was competent evidence bearing on the question of motive. Their operation was properly limited by the court to showing that the suit was pending and undismissed at the date of Colquitt’s death, and that the latter was a material witness in the canse. It was also competent to substitute the original papers for the record by written agreement of the counsel representing the State and the prisoner, as appears to have been done.

"We see nothing objectionable in the instructions given by the presiding judge to the witness, Bose Redman, who, though *585a confessed accomplice, was permitted to testify against the defendant in behalf of the State.

It may be considered the established practice in this State, as it was generally at common law, in proper cases and under proper precautions, to permit accomplices to testify against their associates in crime. It is usually considered as a question for the court to decide, on motion of the prosecuting officer, whether or not to permit it in a particular instance. The practice in England seems to have been, as it is with us, to allow the matter to be determined by the court, in its discretion, as may best subserve the purposes of justice. Where accomplices do testify, on application of the State’s solicitor to the court, it is usually done under the implied understanding that if they testify truly and fairly, they shall not be compelled to suffer bv reason of their confessed guilt. 1 Bish. Cr. Prac. §§ 1076-76; 1 Greenl. Ev. § 379; Code, 1876, § 4893; Whart. Cr. Ev. § 439.

The testimony of Bedrnan was, of course, admissible as to all facts which he avers, constituted a part of the alleged conspiracy between himself and the defendant, compassing the death of the deceased. It was competent, therefore, for him to testify to the alleged fact that it was agreed between them' that he should go, immediately after the commission of the homicide, to the house of Catherine Marler, the sister of the defendant. We think the co'urt erred in admitting corroborative evidence to prove that Bedrnan did go to Miss Mar-ler’s residence pursuant to the alleged agreement. This was, apart from the testimony of the accomplice, a totally irrelevant fact, unless the witness himself had been on trial, and it had nothing to do with the issues in this case, unless there was some evidence tending to connect the defendant with it. We think that the law requires all corroborative evidence to be confined to points material to the conviction, or to circumstances with which the defendant is in some manner connected, or which affect his identity. As was said by Lord Abinger, in Regina v. Farler, 8 C. & P. 106, “A man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only of the truth of that history, without identifying the persons, this is really no corroboration at all. If a man were to break open a house, and put a knife to your throat, and steal your property, it would be no corroboration that he had stated all the facts correctly; that he had described how the person did put the knife to the throat, and did steal the property; it would not at all tend to show that the party accused participated in it.”—3 Russell on Cr. (9th Ed.) 603.

The testimony of Mrs. Marler, and of her daughter, Oath-*586■erine Marler, introduced to corroborate Redman’s statement that he went to the house of the latter after the killing, had no necessary connection with the guilt of the defendant; per se it was irrelevant, and the proof of its correctness would not conduce to prove the guilt of Marler, though it might, the guilt of Redman, of which latter fact there was no pretense of denial by any one.

The statute provides that a “conviction of felony cannot be had on the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense ; and such corroborative evidence, if it merely shows the commission of the offense, or the circumstances thereof, is not sufficient.”—Code, 1876, § 4895.

The statute only declared what was the strong tendency of judicial decision before its passage. Its purpose, we think, was to require all corroborative evidence either to relate to the actual commission of the offense, or the circumstances thereof, or else to such portions of the narrative of the accomplice as the evidence may tend to show that the defendant had some complicity or connection with. It is clear that the corroboration of collateral facts in the statement of an accomplice is no corroboration at all, so far as concerns the defendant, unless he is shown by other evidence than that of the accomplice to be connected in some manner with such facts. Suppose, for example,' the case of one indicted for murder by poisoning the deceased through the use of arsenic, an accomplice in the crime testifies that he himself purchased the poison, by request of the defendant, from a particular druggist, and on a certain day, and, perhaps, at a stated hour and price. The fact being uncontroverted, except as to the defendant’s complicity, how' could it be said that proof by the druggist of the purchase by the witness, in the quantity and at the time and price stated, would in any sense be corroborative evidence. It is presumable that the accomplice, if he did the deed, can narrate the circumstances and the manner of its commission. Unless his statement as to such collateral facts is disputed, it needs no cor-orboration, and the introduction of a score of witnesses before a jury testifying to the truth of such uncontroverted facts, with which the defendant has no connection, would tend only to mislead and confuse, in proportion, perhaps, to the number introduced.—1 Bish. Cr. Proc. § 1081, (note 4); 1 Best, Ev. § 171; 1 Greenl. Ev. (Redf. Ed), § 381, note 3; Roscoe’s Cr Ev. p. 120; 3 Russell on Cr. (9th Ed.) p. 604.

It is further urged by appellant’s counsel that the court below erred in sustaining the objection to the question propounded by the defendant, on cross examination, to the wit*587ness Redman, as to whether, “at the time Colquitt was killed, he was not making his arrangements to leave the country under the suspicion of sheep-steeling.” If the first part of the interrogatory had been propounded alone, as to the witness’ preparations to leave the country, it would be indisputably free, from all objection, especially if shown to have connection with other reasons than his complicity with the crime under investigation. Redman had sworn that it was part of the alleged conspiracy between defendant and himself that he (Redman) should immediately leave the country after the killing, and any proof showing that he was to leave from other motives would tend to discredit him. The chief difficulty arises from the latter part of the question, which has reference to a mere collateral fact and tends to degrade the witness.

The rule is, that upon cross-examination, especially of an accomplice, great latitude will be allowed in order to probe his accuracy, veracity, or credibility. So likewise as to questions having a tendency to shake his credit by injuring his character.—1 Whart. Cr. Ev. § 444; Stephens’ Dig. Law Ev. 185. It is no objection to the question, that it would expose the witness to disgrace, not amounting to crimination. And, as said by Mr. Wharton, “while courts have refused to permit a witness to be examined as to past irrelevant misconduct, yet questions have been permitted tending to search his conscience as to such recent infamy as leaves his testimony entitled to little respect.”—1 Whart. Law Ev. §§ 544, 541. While the authorities on this point are not perfectly settled, we incline to the view, that, where the question propounded has reference to some collateral fact, tending merely to degrade the character of the witness, and not exposing him to penalty or prosecution, but yet tending to impeach his credit as unworthy of belief, great liberality should be extended by the nisi prius courts in favor of the allowance of the question. Yet much is to be left to the enlightened discretion of the court, in such matters, and its action will not be reviewed unless such discretion appears manifestly to have been abused. The tendency of modern practice seems favorable to great latitude, however, in this regard. 1 Greenl. Ev. § 454-5; Clark’s Man. Cr. Law, § 2454; Campbell's case, 23 Ala. 44; Childs's case, 58 Ala. 349; People v. Manning, 48 Cal. 335; 2 Phil. Ev. 422; Clark’s Cr. Dig. § 999; Halls' case, 40 Ala. 698; 1 Whart. Law Ev. § 528.

For the error of the Circuit Court in admitting the testimony of Mrs. Marler and of Catherine Marler, as above discussed, its judgment is hereby reversed and the cause is remanded for further proceedings. In the meanwhile, the *588prisoner -will be retained in custody until discharged by due course of law.