113 Ala. 86 | Ala. | 1896
The evidence adduced on the inquiry whether Vail and his wife were permently or indefinitely absent from the State at the time of the trial was insufficient to establish a predicate for the admission of their testimony given before and taken down by the committing magistrate. For the State it was substantially to this effect: These witnesses said at the time of their preliminary trial that “when at home, they lived in Ohio.” They at that time had no home in Alabama, but were camping out in the suburbs of Huntsville. A subpoena for them was sent to Limestone county and returned “not found.” A subpoena issued also to the sheriff of Madison county, and was returned “not found;” but the officer testified that he looked and inquired for them in only two or three precincts of the county. The sheriff had also made hasty inquiries for them at several railway stations in two or three counties west of Madison. This was done during the brief stops of the train on which the officer was travelling at such stations. These inquiries were fruitless. Vail said if he did not settle in Alabama, he would go to Georgia where his partner lived ; but he left Huntsville, and when last seen by any of the witnesses was going in the opposite direction. On the other hand, the evidence on the part of the defendant showed that Vail first came to Madison county some time before the fall of 1895, prospecting for a homo. He expressed himself as pleased with the country, and said that he was coming here from Ohio to live. In the fall of 1895 he did return to Huntsville, travelling in a wagon, with a camping outfit, bringing his wife and children, and also some poultry, household goods and mules -with him. While at Huntsville he stated to several persons that he had come to this State to live, and that he was going to buy land in Madison county. On leaving Huntsville, Vail went in the direction of Madison station. His wife and children and some household goods were in the wagon, a coo^) of poultry was strapped on the rear end of the wagon, and a mule was being led behind. To a witness who met him just before he reached Madison station he said he was going down near Swancott to look at some property. This witness further stated that Vail made the impression on him that he intended to settle in Madison county. To another witness, Vail stated that he intended to go into the neighbor
The testimony of Wm. Mitchell, that he looked for the defendant for three days when trying to arrest him for
The other rulings of the court to which exceptions were reserved are free from error.
Reversed and remamded.