28 Ala. 53 | Ala. | 1856
Lead Opinion
Section 3613 of the Code defines specifically what the transcript shall contain, when a change of Tenue shall be ordered in a criminal case. The transcript which was certified from the circuit court of Autauga, substantially conforms to the requirements of said section. We do not understand the counsel for the appellant as contending that any thing appears to be omitted in the transcript. The argument is, that neither the transcript nor certificate shows that said proceedings were of record in Autauga circuit court; and that the certificate is itself defective, in failing to mention and verify by name the contents of the transcript, viz., the caption of the grand jury, the indictment, &c.
The section of the Code under consideration defines the duty of the clerk in the given case. If the transcript do not contain copies of all the papers, entries, and orders that are material to the cause, it will, to that extent, be defective. There is nothing in the language of the Code, which requires the clerk to depart from the usual rule, and to mention in his certificate each paper, order, &c., that may be found in the transcript. We think the clerk’s certificate substantially meets the requirements of the law. He certifies that “ the transcript contains a full, true, and complete transcript of the indictment, and all papers on file in his office, and of all the entries relating to the case of the State against Jefferson Ward, as found in his office.” The entries could have been none other than the orders of court made in the particular cause; and those orders could only be found, or exist, on the records of the court.
These proceedings were had in a court of general jurisdiction; the certificate was given by a sworn officer, and the presumption of law is in favor of their correctness. — Case of Williams, 3 Stew. 454; Greenwood’s case, 5 Por. 474; Phil, on Ev., Cow. & Hill’s Notes, part 1, p. 296.
2. An argument has boon predicated on an alleged variance between the name given in the indictment, and the real name of the person on whom the assault is charged to have been
In the pronunciation of proper names, far greater latitude is indulged than in any other description of words. To hold the pleader to a literal compliance in every case, would greatly obstruct, while it cannot promote, the ends of justice.
A class of cases may be found in the books, where the law requires a stricter conformity of the allegations to the proof. In them, an instrument in writing, or a record, is attempted to be set out. Of this class are the cases collected in Starkie on Evidence, vol. 3, p. 1587, and Gordon v. Austin, 4 Term. But they do not impair the soundness of the rule above enunciated.
3. The testimony offered, as it is said, in mitigation, was properly excluded. It related to a different transaction, and to a conversation at a different time, and was therefore too remote to be given in evidence in this case. To allow this testimony would require the jury to try, not only the guilt or innocence of Ward, but also the habits and solvency of Chambless, and various other questions. Besides, it is by no means certain that the testimony offered would extenuate or mitigate the offence, which the recitals in the bill of exceptions tend to prove.
4. The question raised on the form of the preliminary question in the introduction of impeaching testimony is not free from difficulty, whether we consult principle or authority. We acknowledge the force of the argument, that human vices arc social in their character, and that one who has blunted his moral sensibilities by crimes, or frauds of scarcely less turpitude, should not receive the same credit in a court of justice as a purely virtuous man. It taxes credulity very far to suppose that veracity can stand unhurt amid the general ruin of moral principio. On this point there is much force in
In the authorities on this point there is an irreconcilable conflict. In my opinion, both the weight and numbers are on the side which confines the investigation to character for truth and veracity. See them collected on the briefs of counsel. Our own court, in the case of Sorrelle v. Craig, supra, carefully abstain from adopting the more general form of question, though the writer of the opinion indicates his approval of it. In the case of Nugent, 18 A. R. 321, C. J. Dargan gives the more limited form as the proper question. The question was not directly raised by the record in that case; but in support of the rule thus laid down, the opinion cites several decisions of sister States, settling the question as stated. The question may then be regarded as not authentically settled in this State. A rule of practice that is drawn in question as frequently as this must continue to be, ought to be defined and understood.
The opinion of Senator Tracy, in the case of Bakeman v. Rose, 18 Wend. 146, offers, perhaps, the best reasons in favor of the more general inquiry. The case of U. S. v. Vansickle, 2 McLean, 219, is a forcible argument in favor of the more restricted form of question. While thereis much plausibility in the argument of Mr. Tracy, I think he laid down the rule too broadly. To permit a knowledge of the general moral character of a witness to be made the grounds of evidence impeaching his credibility, is certainly a wide departure from the wholesome general rule, that witnesses depose to facts, and the jury draws the conclusions.
The question in the restricted form, viz., “From your knowledge of his general character for truth and veracity, would you believe him on oath ?” is one of difficult solution to a majority of witnesses. Suppose the question be propounded in the general form, “ Are you acquainted with the general moral character of the witness who has deposed?” “ Is it good or bad ?” These questions being answered, suppose the further question be put, viz., “ From your knowledge
The proper answer will include, first, the ascertainment of the existence of general bad moral character; secondly, the conclusion or inference from the existence of that general bad moral character, that love of truth had been weakened or destroyed thereby; and thirdly, the conclusion or inference from this, that the witness sought to be impeached is unworthy of credit on his oath. And this last remote inference or conclusion is thus given to the jury as a premise, from which that body is to draw an inference or conclusion. This operation of the mind would require a solution of some subtle and debatable questions in casuistry; a solution which ought not to be expected or demanded of witnesses, a majority of whom are unaccustomed to such investigation.
What is bad moral character ? To what immoralities must a witness be addicted, to justify an inference adverse to his veracity ? The general question lays down no rule ; shall a question so important be left to the judgment or caprice of each impeaching- witness ? The standard would be uncertain, dependent on the moral organism of each bystander who might perchance be called to the witness stand. General dissoluteness might satisfy one mind; professional gambling a second; gross frauds in pecuniary transactions a third; while a fourth might withhold this severe judgment, until the attacked witness had blackened his reputation by crimes of deepest dye.
The difficulties would not end here. The party whose witness was impeached, would have the clear right, on cross-examination,'to learn the grounds of the opinion deposed to. The grounds 'of-the different witnesses might be as multiform as human depravity is; and each separate ground would present an issue for testimony, for argument of counsel, and for deliberation and decision by the jury. This would be in direct antagonism to that sound principle, which forbids the presentation of outside issues, because they tend to embarrass the deliberations of the jury.
I feel fully authorized, both on principle andAuthority, to lay down the rule, that inquiries on this subject ought to be limited to the general character for truth and veracity. This
An argument may be thought to be predicable on the language of the elementary writers. Starkie does not touch the question. Phillipps (vol. 1, old edition, p. 212), as I understand his language, simply lays down the rule, that general character can only be proven, in contradistinction to -particular facts, or parts of character. Swift (p. 143) expressly limits the inquiry to general character for truth. Greenleaf (vol. 1, § 461) says, a witness may be impeached “ by general evidence affecting his credit Hot veracity.” The two authors last referred to are in favor of the restricted inquiry. None of the elementary books use the terms good or bad moral character, or other equipollent words.
If the question were an open one, the writer of this opinion would be disposed to limit the direct examination of an impeaching witness, first, to his knowledge of the general character for veracity of the impeached witness: and secondly, whether that character was good or bad. Then, let the jury, from this predicate, draw the conclusion whether the witness ought to be believed or not. Of course I would not inderdict legitimate cross-examination. But the rule has prevailed too long to be now disturbed, that the witness may be asked whether, from the general character of the impeached witness for truth, ho, the impeaching witness, would believe him on oath in a court of justice.
Applying these rules to the case under consideration, it is my opinion, the circuit court did not err in refusing to allow the question presented by "the bill of exceptions. The question which the presiding judge prescribed as “ the only one he would allow,” though a legal question, was not the only one the accused had the right to propound. It was clearly his right to vary the phraseology, or sever the numbers of the sentence, so as to bring the subject home to the comprehension of the witness. Moreover, it was his privilege to extend the inquiry, after ascertaining his witness’ knowledge of the general character for truth, so as to learn whether that
5. The court below correctly refused to exclude Buck’s testimony. If the impeaching or sustaining witness answers the preliminary question affirmatively, it does not destroy his competency though he may never have heard the character of the witness he speaks of canvassed.- — - Hadjo v. Gooden, 13 Ala. 722; Dave v. The State, 22 Ala. 23.
The judgment of the circuit court, is reversed, and the cause remanded.
We all agree that the judgment of the circuit court should be reversed, and that, in assailing the credit of a witness, an inquiry as to his general character for truth is proper. _ We do not, however, agree upon the question,, whether the law restricts the inquiry to the general character for truth.
. My opinion is, that the law makes no such restriction, but allows a broader inquiry into general character. If the most approved writers upon evidence are to be relied on, it is clear that such restriction never formed a part of the English or common law. — 1 Phil, on Ev. (ed. of 1820), 212; 2 Phil, on Ev. (ed. of 1839), 768-771; Starkie on Ev. 146; Norris’ Peake (6th edition), 107; 1 Greenlf. on Ev. § 461, and notes; Bakeman v. Rose, 18 Wend. R. 146; Sorrelle v. Craig, 9 Ala. R. 534; State v. Boswell, 2 Dev. Rep. 209; The People v. Mather, 4 Wend. R. 257; Anon., 1 Hill’s (So. Ca.) R. 251 ; Hume v. Scott, 3 Marsh. R. 261; Noel v. Dickey, 3 Bibb, 268; Blue v. Kibley, 1 Monroe, 195; Wike v. Lightner, 11 Serg. & Rawle, 199.
I am aware that there are many decided cases in the American courts, which favor the restriction. But there are many American cases opposed to it. The best writers upon evidence are opposed to it. The dictates of natural, justice are opposed to it. It is certainly unjust, that a witness who has made no general character as to truth, but whose general character is notoriously bad and infamous, should be protected by any such restriction as is now under discussion, and be
The authorities herein above cited satisfy me, beyond reasonable doubt, that the cases which decide in favor of the restriction, are not to be regarded as law, and ought not to be followed.
Concurrence Opinion
I concur in the opinion of the Chief Justice.
