Rosenbaum v. State, 33 Ala. 354

Rosenbaum v. State

33 Ala. 354 | Ala. | 1859

STONE, J.—

Ye concur with the circuit court in holding, that what took place at the store of Taylor & Epps, in the forenoon of the day on which the light took place, was not admissible in evidence. It was no part of the res gestee—was too far removed in point of time from the actual engagement; and the only effect it could have had, would have been to embarrass the jury with considerations of the merits of the quarrel. It could not qualify or mitigate the breach, of the peace of which the public complained. Ward v. The State, 28 Ala. 53; 1 Greenl. Ev. § 52; Robbins v. The State, 20 Ala. 36.

[2.] Neither was it permissible to interrogate the witness as to the immaterial matter which had previously taken place at the store of Taylor á Epps, and thereby lay a predicate for contradicting him. To justify this mode of attack upon the credibility of a witness, the matter inquired of must be pertinent to the issue.—1 Greenl. Ev. § 449.

A deposition, taken in a civil suit between the defendant and the person on whom the assault is charged to have been committed, was offered in evidence for the prosecution, and objected to by the defendant; the deposition was admitted, and the defendant excepted. To legalize this piece of testimony, the prosecution read in evidence the following agreement:

“ The State vs. Louis Rosenbaum.

v In the circuit court of Marengo. lit is consented and agreed, that the J deposition of Dr. James S. Ruffin, taken in the civil suit of Gittleman v. Rosenbaum in this court, may be used and read in evidence in this case of State v. Rosenbaum, and the personal attendance of said Ruffin is dispensed [with;] and also in the State v. Gittleman.

Lomax & Prince, for Rosenbaum,

McCaa & Clarke, for Gittleman,

Y. L. Roxston, solicitor.”

It is contended for plaintiff in error, that the record does not show that Lomax & Prince, at the time they entered into said agreement, were the attorneys of Rosenbaum. Wagstaff v. Wilson, 4 Barn. & Ad. 359, is relied on in *362support of this position. ¥e need not, and do not, now determine whether the principle invoked would govern this case, if the question stood alone on the argument copied above.—See Marshall v. Cliff, 4 Camp. 133; Roberts v. Lady Gresley, 3 Car. & P. 380. The question does not rest alone on the agreement. In the bill of exceptions, and immediately preceding the said agreement, is the following language: “ In order to authorize the introduction of said evidence, the solicitor for the State read in evidence the following agreement between the counsel for the prosecution and defense.” The record, then, recites that Messrs. Lomax & Prince were of counsel for the defendant Rosenbaum; and the agreement being without date, we do not feel at liberty to infer that it was signed when they had no authority to bind the defendant. On the contrary, we think it sufficiently apparent from the record that Lomax & Prince were his attorneys at the time they entei-ed into the agreement.

[3.] Having attained the conclusion announced above, we think that well settled principles of law, as well as sound policy, require us to give to an agreement of counsel, as to the conduct of trials in court, the same binding efficacy as if the agreement had been made by the party. To hold otherwise, would greatly embarrass judicial proceedings.—Albertson, Douglas & Co. v. Goldsby, 28 Ala. 711, and authorities cited ; Riddle v. Hanna, 25 Ala. 484; Starke v. Kenan, 11 Ala. 818; Coke v. Nicholls, 2 Yeates, 546; Greenville v. McDowell, 4 Iredell’s Equity, 481; Kent v. Ricards, 2 Md. Ch. Decis. 392; 1 Bishop’s Crim. Law, § 672.

True, where admissions or agreements are made improvidently, or through mistake, the court may relieve against them by means of its coercive power over its own officers, and may set them aside upon such terms as will meet the justice of the particular case.—Harvey v. Thorpe, 28 Ala. 250. In this case, no motion was made by defendant to obtain relief from the agreement. The testimony was objected to on general grounds; and, as we infer from the bill of exceptions, this objection was made after the trial had been entered upon. If the court had *363•sustained the objection at that stage of tbe proceedings, the result would probably have been to deprive the State •of Dr. Ruffin’s testimony altogether, unless the doctor had chanced to be in attendance on the court.

[4.] If it be contended, that the ruling of the court ■denied to the accused his constitutional right to be confronted by the witnesses against him, we answer that this, like many other constitutional privileges, may be waived by ■the defendant, in such a case as this. All the admissions ■of facts, or that certain witnesses, if present, would prove •certain facts, made by defendants for the purpose of a trial, rest on this principle. We have been referred to no ■case which sustains this view.—See The King v. Morphew, 2 Maule & Selwin, 602; Roscoe’s Cr. Ev. 78.

[5.] We can perceive no error in the first charge given. The jury are always judges of the meaning of language •employed by witnesses. The context generally, and frequently the profession or occupation of the witnesses, ■should be regarded in arriving at the sense in which words are employed. Dr. Ruffin testified as to the wound in the hand, in such manner as to show he had given it a professional examination. Immediately afterwards, and in the same connection, he stated he did not examine the •wound in the side. Yet he had testified, that G-ittleman was wounded both iii the hand and in the side. If he had not seen the wound in the side, he could not properly have testified there was such wound. We think the sense in which he employed the word examine, was a proper subject of inquiry for the jury.

[6.] There is nothing in the third charge for which we feel authorized to reverse. The plainest recital of everyday transactions would frequently, if not universally, be unintelligible to us, if we were not aided in the investigation by our general knowledge and experience. These are the lights by which we determine the probability or improbability of testimony, the truthfulness of witnesses, and the reasonable consequences of particular acts.—Ogletree v. State, 29 Ala. 693.

[7.] The remark of the circuit judge, characterizing certain matters relied on for the defense as “ little mat*364ters,” was fully explained and neutralized in the hearing' of the jury, and before their retirement. . This furnishes no cause of reversal.

[8.] Under our statutes, the jury assess the fine, in most or all cases of misdemeanor. This being the case, it follows that all evidence in mitigation, as well as evidence on the question of guilt, must go before the jury, and be considered and passed on by them.—See Robbins v. The State, 20 Ala. 86. The rule is different where the jury have nothing to do with the degree of guilt, but only pronounce on the single question of guilty vel non.—See The King v. Lynn, 2 Term Rep. 733 ; King v. Sharpness, 1 T. R. 227; Rex v. Turner, 1 Str. 139 ; Rex v. Cox, 4 C. & P. 538; King v. Withers, 3 T. R. 428 ; King v. Ellis, 6 B. & Cress. 145; People v. Cochran, 2 Johns. Cas. 73 ; State v. Smith & Cameron, 2 Bay, So. Ca. 62.

It was settled in the case of Felix v. The State, 18 Ala. 720, that evidence of previous good character was proper for the consideration of the jury, not only when a doubt exists upon the other proof, but even to generate a doubt as to the guilt of the accused.—See, also, Wh. Am. Crim. Law, § 643-4. The effect of this decision is to declare that, in criminal prosecutions, good character is original evidence for the accused, indepeiident of the character of the other evidence which may be given in the cause. It is, then, evidence to be weighed by the jury in determining the question of guilt, and the degree of the defendant’s criminality. In prosecutions for offenses which consist of different degrees, as declared and defined by law, no one, we apprehend, would hesitate to declare that, under the principle settled in the case of Eelix, supra, good character should be weighed by the jury in determining the degree of guilt. Now, although few if any misdemeanors have legally defined degrees, most of them are in fact classified by the measure of criminality which attends them. Some assaults are more violent and aggravated than others; and yet the law, in the absence of some specified and particular circumstances and intents, has not declared any degrees in assault, or assault and battery. The jury, inpronounc*365ing upon the question of guilt, can render only a general verdict of guilty or not guilty.

In assessing the fine, however, the jury are not thus .shackled.—Code, § 3307. They are clothed with a large ■discretion, which must have had for its object the accommodation of the punishment to the degree of criminality. In fact, the fine assessed in the particular case is but a reflection of the opinion of the jury on the guiltiness of the accused.

We hold, then, that the jury should have been instructed to regard the evidence of defendant’s good character in determining the degree of the defendant’s guilt; 'and as the degree of guilt can only find expression in the amount of fine assessed, the fifth charge given by the court is erroneous.

Lest this opinion may mislead, we will add, that whenever the grade or degree of guilt of an offender is ascertained by the jury, good character has then accomplished its entire object. We can perceive no reason why one of good character should be punished more lightly, than another who is not able to prove a good character, but who, in the opinion of the jury, is no more guilty than the former. There may exist in the one case as strong reasons for wholesome restraint and salutary public example, as in the other. The amount of the fine, however, is in the main left to the discretion of the jury; and we do not wish to be understood as placing restraints on the exercise of that discretion, to a greater extent than the statute has done. We, as a revising court, cannot in any given case assert, as matter of law, that the jury have exceeded or fallen short of their duty.

For the error above pointed out, the judgment of the circuit court is reversed, and the cause remanded.