96 Ala. 62 | Ala. | 1892
The principal questions in this case arose in the admission of proof of the testimony one Miley, who was examined as a witness on the preliminary examination of the defendant, but was residing out of the State at the time of the trial.
When a witness is beyond the jurisdiction of the court at the time of the trial, having removed from the State perrna1 nently or for an indefinite time, secondary evidence is admissible to prove what he had previously deposed to, on the preliminary investigation of the same case before a committing magistrate. — Pruitt v. The State, 92 Ala. 41; Perry v. State, 87 Ala. 630; Lowe v. State, 86 Ala. 47; South v. State, 86 Ala. 617.
The notary public and ex officio justice of the peace who conducted the preliminary examination identified a writing which was produced as the testimony of the witness Miley, as taken down when he was examined, being.the substance of his testimony; the written statement having been sworn to and subscribed by the witness. Objection' was made to the introduction of the written statement, on the ground that, the offense charged having been committed in precinct 34 of Jefferson county, a notary public and'écb officio justice of the peace who had been appointed for precinct 21 of that county was without jurisdiction of the case, and, therefore, testimony taken on a preliminary' examination before him was not competent as evidence in the case. • This objection was not well taken. The jurisdiction of a notary public who is ex officio a justice of the peace in precinct 21 of Jefferson county is defined and regulated by a Special act approved February 19,1889. Acts of Ala. 1888:89, p. 449. That act confers upon such notary public “the same jurisdiction in criminal cases as is now exercised by justices of the peace.” Justices of the peace “in their respective counties” are magistrates before whom preliminary examinations in criminal cases may be held. Code, § § 4256 and 4680. And
_ After the testimony Of the" witness Miley, as' reduced to writing by the magistrate and signed by the witness, had been read to ■ the jury, the ■ magistrate being 'present and hearing it read,' asked to be allowed to correct his testimony ; thereupon, he was introduced' as a witness by the State, and gave'a version of the testimony of the'witness Miley on the preliminary investigation which was materially different from the testimony of that witness as reduced to writing and signed by himself. 'Notwithstanding this correction, the magistrate still: stated that the testimony of Mi-ley had’been taken down in substance. The defendant objected’to this 'correction, and1 this objection • having been overruled, he moved the court to exclude the testimony of Miley as it then stood- in its corrected form. This ' motion was- also overruled. Exceptions were duly reserved- to this' action of the court.
- The statute requires that the evidence of the witnesses examined on a preliminary investigation must be reduced to writing by ’the magistrate, or under his direction,and signed by the witnesses respectively. Code, § 4286.' And such examinations must be returned by the magistrate to the court at-which the defendant or the witnesses are bound tp appear. Code, §4298. It has been-held that secondary evidence of the contents of such written statement of the testimony of a witness who has died should not be received,'when it was made to appear that only so much of the testimony as the magistrate deemed material had been reduced to writing, and there was no offer to prove the substance of all the testimony of the witness. — Tharp v. State, 15 Ala. 749. In Davis v. State, 17 Ala. 354, it was decided that the proof of what a deceased- witness testified to on a preliminary ' examination on the same charge before a justice of the peace, is admissible against the defendant, although the examination was not reduced' to writing. It was there recognized that, though the testimony as reduced to writing by the committing magistrate is legitimate proof after the death of-the witness, yet, as such writing is not by force of the statute made ■ evidence, the testimony of such witness may be proved otherwise, if the'committing magistrate shall fail or neglect to do his duty in reducing the evidence taken before' him to writing. In the course of the opinion it was said, in reference to the'statute, “It was only intended to preserve the evidence, but not to alter the law in regard to its admissi
Reversed and remanded.