106 Ala. 67 | Ala. | 1894
— The indictment contains two counts ; the first charging that the defendants, “conspired together to unlawfully take one thousand dollars in money, the property of Julius G. Hudspeth, from his person, and against his will, by violence to his person, or by putting him in such fear as unwillingly to part with the same.” The second count charged that the ■defendants “unlawfully conspired together to unlawfully and with malice aforethought killed Julius G. Hudspeth.” On the trial, the State voluntarily elected to prosecute only for the offense charged in the first count, thereby, for all the purposes of the trial, eliminating the second count as effectually as if it had not formed part •of the indictment; and it is the sufficiency of the first
It is a very general rule, applicable alike in civil and criminal cases that if a witness has given testimony in .the course of a judicial proceeding between the parties litigant, before a competent tribunal, subsequently dies; or if not dead becomes insane ; or after diligent search is not to be found within the jurisdiction of the court; or if that which is equivalent be shown, that he has left the State permanently, or for such an indefinite time that his return is contingent and uncertain, it is admis.sible to prove the substance of the testimony he gave formerly. — 1 Whart. Ev., §§ 377-80 ; 1 Green. Ev., §§ 163-66 ; 1 Brick. Dig. 878, §§ 1064-72; 3 Brick. Dig.4tl, §§ 523-33 ; Lowe v. State, 86 Ala. 47 ; South v. State, Ib. 617; Perry v. State, 87 Ala. 30 ; Pruitt v. State, 92 Ala. 41; Lucas v. State, 96 Ala. 51. The rule is founded upon a principle of necessity, rather than upon any ideas of mere convenience. Parties should not lose the benefit of evidence, taken on a former trial when the same issues were involved, and there was full opportunity of examination and cross-examination, because events or contingencies have arisen which render the personal presence of the witness impossible, or if possible, his examination impracticable, or because the witness is without the jurisdiction of the court, and his personal presence can not be compelled. The rule is however exceptional, and it is essential to the admissibility of the evidence, that some one of the contingencies, which are deemed to create the-necessity, be satisfactorily shown. In the present case, the 'fact which was supposed to authorize the introduction of the evidence given by the witness on the
The instruction given by the court touching a reasonable doubt which requires an acquittal of a criminal charge, is clear and precise, and in accordance with all authority. Though an exception was reserved to it, in the argument of counsel here its correctness is not questioned.
Instructions requested must be clear, precise statements of the law applicable to the evidence; must be free from involvement or obscurity, of all tendency to mislead or confuse the jury, must not be invasive of the province of the jury, or argumentative. If subject to any one of these objections, there is no revisable error in refusing them.
The first instruction requested by the defendants, not only gives undue prominence to the evidence of the witnesses who were named in it, but was invasive of the province of the jury to consider the testimony of these witnesses in connection with all the evidence which had been introduced touching the facts to which they testified. The precise meaning or purpose of the second instruction, is not clear. Time and place are material inquiries on every criminal trial. The burden rests on the State to prove that the offense charged was committed within the county in which the ventee is laid, and within a time to avoid the bar of the statute of limitations. The burden is not increased whatever may be the nature or character of the defense. It is not of consequence true, as a legal proposition, as this instruction asserts, or as it would probably have been by the jury construed to assert, that time and place became a material inquiry only when an alibi was interposed as a defense .
The third instruction is founded in a misconception of the offense charged, and is not in any of its postulates of fact well founded. A conspiracy is in and of itself a distinct, substantive offense ; complete when the corrupt agreement is entered into ; the agreement is the gist of the offense. It is not necessary that any act should be done in pursuance of the agreement; nor is the offense purged, because subsequent events may render the consummation of the agreement impossible, or because the conspirators are entrapped in an attempt at its consummation.
The fifth, eighth, and ninth instructions maybeconsideredjtogther,;and each are subject to kindred objections. The indictment charges the offense to have been committed in Henry county, and includes the charge that the time of its commission was within twelve months prior to its finding. These were the facts, the State was under the burden of proving; there was no burden resting upon it, to prove that the conspiracy was formed at the time or place stated in the fifth, and eighth instructions. These instructions confound the allegations of the indictment with the evidence which the State introduced. They are -wanting in clearness and precision, and were calculated to mislead or confuse the jury. The ninth affirms that the State had elected to prosecute on the testimony of a particular witness; and of such election the record furnishes no evidence, unless it be inferred from the tendencies of the evidence the State introduced.
The sixth instruction is subject to the objection that it gives undue prominence to the testimony of particular witnesses.
The offense charged against the defendants was the conspiracy, not any act done or attempted in its consummation. Of the fact of the conspiracy, of the corrupt agreement, .the evidence must have satisfied the jury beyond a reasonable doubt; and if the jury could reconcile all the criminating evidence on a reasonable hypothesis consistent with the innocence of the defendants, it was a duty to adopt that hypothesis. This is far from- being the proposition asserted in the seventh instruction, -which mingles the evidence touching the going to Hudspeth’s house after the conspiracy was formed, and the evidence of the conspiracy, and then in the alternative, requires an acquittal, if the jury could account for the evidence of either, on a reasonable hypothesis consistent with the innocence of the defendants. It may be, the jury could account for the fact that the
It is insisted that the tenth instruction ought to have' been given, because there is an absence of evidence to support the averment of the indictment, that the object or purpose of the conspiracy was to rob Hudspeth of one thousand dollars. An indictment for a conspiracy to do an act which is a well known felony or misdemeanor at common law is sufficient if it describes or avers in general terms the felony or misdeanvanor intended to be committed. Th s nature of the offense by such averment or description is cleanly indicated, and all beyond is mere matter of evidence, or surplusage. — 1 Bish. Or. Procedure, § 516 ; 4 Amor. &Eng. Eucyc., 623 ; 3 Greenl. Ev., § 395 ; Com. v. Eastman, 1 Cushing, 189; s. c. 48 Am. Dec. 596. It ivas immaterial whether tlie purpose of the conspiracy was to rob Hudspeth of one dollar or of one thousand dollars. The degree of the guilt of the accused ivas not lessened or increased because of the insignificance or the magnitude of the value of that which it iv is intended to acquire by the robbery; and if this were an indictment for robbery, it would not be necessary to prove the precise sum averred to have been taken from the person of the party robbed. — 3 Greenl. Ev., § 224 ; 1 Bish. Or. Pr., § 579. The averment of the indictment in the particular we are considering, belongs to that class of averments winch are not descriptive of the fact or character of the offense, and are not required to be proven with any degree of precision. — 1 Greenl. Ev, § 65 ; 1 Bish. Or. Procedure, § 579.
"We. are without a statute declaring a conspiarcy formed in this State to commit a felony or a misdemeanor in a sister State, an indictable offense, as we are without a statutory declaration of the elements or constituents of a criminal conspiracy. The Criminal Code declares the