Toliver v. State

Nov 15, 1891

Versions:94 Ala. 111

STONE, C. J.

— The defendant was indicted and convicted: of grand larceny, .сattle being the subject of the theft. The-indictment was joint against dеfendant and Alfred Thomasi. *112The testimony was that, shortly after the cаttle disappeared, four of them were brought by defendant tо the city of Montgomery, . and there offered for sale. Hé was arrested, tried before the Oity Recorder, and, under his sentencе of conviction for a violation of the city ordinance, suffered the punishment imposed. On being discharged from .the custody ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍оf the city authorities he fled, and two years later he was captured in the city of Birmingham, and brought to trial in the present casе. Thomas was never arrested, he having fled the country when Toliver was first arrested. The defense attempted by the defendant was, that he purchased the cattle from Thomas, paying for thеm with a horse and wagon.

A witness introduced by defendant was asked, “if defendant requested him, when told that the cattle were stolen cattle, to •go and get his horse and wagon from Alfred Thomas ?” This ■questiоn was not objected to by the State. The witness answered, that “defendant’s wife told him that the horse and ■wagon were at Alfred Thomаs’ house.” It will be observed this answer was not responsive to the quеstion. The prose■••cuting attorney “then asked the witness, to state what defendant’s wife said about the horse and wagon.” He answеred, “that defendant’s wife told him that defendant had ■traded said horsе and wagon to Alfred Thomas for some cattle.” .After this answer wаs given, the prosecuting attorney “moved the court to exclude all the testimony of the witness; and the court, contrary to the objection of defendant, granted said ¿motion to excludе; and the defendant then and there duly objected to said ruling of the court, and then and there duly •excepted to the same.” It will be observed that all the testimony of this witness was in its nature illegal.

Three propositions are settled by many rulings of this ■court: First, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the court may exclude illegal testimony at any ■stage of the trial. — McCreary v. Turk, 29 Ala. 244; Bush v. Jackson, 24 Ala. 273; 1 Brick. Dig. 887, § 1190; Warren v. Wagner, 75 Ala. 188. Second, a party сalling out illegal testimony has no right to have it excluded on his motion. Edgar v. McArn, 22 Ala. 796; Furlow v. Merrell, 23 Ala. 705. Third, parties may try their issues on illegal testimony, if they ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍choose tо do so, provided no objection is raised by ■either. — Moon v. Crowder, 72 Ala. 79.

The principle raised in this case is somewhat novel. The testimony being patеntly illegal, if we ignore the manner of its introduction, it fell clearly within the rule which allows its ■exclusion at any stage of the trial. On the othеr hand, that jpart of it which, it seems, could alone exert any influence in the jury’s finding, was called for and brought out. by the *113solicitor himself, аnd he clearly had no right to demand, or ask its exclusion. We think the City Cоurt erred in entertaining and granting the motion to exclude. The soliсitor, as we have seen, had ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍no right to make the motion, and thе effect of entertaining it was to give some sanction to a practice of experimentation, which it would be dangеrous to allow in eases involving life or liberty.

A witness giving evidence in his own behalf is not permitted to testify to his uncommunicated intentions. — Fonville v. State, 91 Ala. 39.

A charge which instructs the jury .that, if the evidence is susceptible of two reasonable constructions, one of which is consistent with defendant’s innocence, it ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is their duty to favor or adopt that construction rather than the other, tends to confuse and mislead them, is an invasion of their province, and should not be given. — Gibson v. State, 91 Ala. 64. Charge No. 1, asked by defendant, was properly refused.

There is nothing in the other questions reserved.

Reversed and remanded.